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No Sec. 301 preemption of players’ claim that NFL negligent in distributing controlled substances in violation of state, federal drug law

By Ronald Miller, J.D.

State-law claims brought against the National Football League by former football players were not preempted by Section 301 of the LMRA, ruled the Ninth Circuit. In bringing negligence claims, the players alleged that the NFL violated state and federal laws governing prescription drugs. The appeals court found that the NFL had a duty to avoid creating unreasonable risks of harm when distributing controlled substances that was completely independent of the collective-bargaining agreements between the league and players’ association. Therefore, no interpretation of the CBAs was required to determine whether the NFL owed the players a duty and whether it breached that duty. Concluding that as pleaded, the players’ claims neither arose from the CBAs nor required their interpretation, the appeals court reversed and remanded the district court’s ruling (Dent v. National Football League, September 6, 2018, Tallman, R.).

Abuse of prescription drugs. The lead plaintiff alleged that during his 14-year career, doctors and trainers gave him numerous injections and pills containing powerful painkillers in an effort to keep him on the field. According to the plaintiff, he was never warned about the potential side effects or long-term risks of the medications he was given, and he ended his career with an enlarged heart, permanent nerve damage in his foot, and an addiction to painkillers.

Since 1968, the NFL, its member teams, and NFL players have been bound by a series of CBAs. Since 1982, the CBAs have included provisions regarding “players’ rights to medical care and treatment.” The CBAs impose certain disclosure requirements on team doctors.

In 2014, certain retired players filed a putative class action, alleging that since 1969, the NFL has distributed controlled substances and prescription drugs to players in violation of both state and federal laws, and that the manner in which these drugs were administered left players with permanent injuries and chronic medical conditions. The complaint alleged that the NFL encouraged players to take these pain-masking medications to keep players on the field and revenues high. According to the players, they rarely, if ever received written prescriptions for the medications they were receiving. They filed claims for negligence per se, negligent hiring and retention, negligent misrepresentation, and fraudulent concealment, among other claims.

The NFL filed two motions to dismiss, one arguing that the players’ claims were preempted by Section 301 and the other arguing that the players failed to state a claim and their claims were time barred. The district court granted the NFL’s motion to dismiss on preemption grounds. The players appealed.

Section 301 preemption. Section 301 preempts state-law claims “founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective bargaining agreement.’” The Ninth Circuit conducts a two-step inquiry to determine whether state-law claims are preempted by Section 301. First, it asks whether the cause of action involves “rights conferred upon an employee by virtue of state law, not by a CBA.” If the rights at issue exist solely as a result of the CBA, then the claim is preempted.

Second, if the right exists independently of the CBA, the court asks whether litigating the state-law claim nonetheless requires interpretation of a CBA, such that resolving the entire claim in court threatens the proper role of grievance and arbitration. A claim that requires interpretation of a CBA is preempted. At this second step, “claims are only preempted to the extent that there is an active dispute over the meaning of contract terms.”

Negligence cause of action. To state a claim for negligence in California, a plaintiff must establish four elements: (1) the defendant had a duty, or an obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks, (2) the defendant breached that duty, (3) that breach proximately caused the plaintiff’s injuries, and (4) damages.

Here, the players alleged that “the NFL coordinated the illegal distribution of painkillers and anti-inflammatories for decades,” and that “NFL doctors and trainers” gave players medications “without telling them what they were taking or the possible side effects.” With that reading of the complaint in mind, the appeals court turned to consider whether the players’ negligence complaint was preempted.

Duty of care. The first question was whether the players’ right to receive medical care from the NFL that did not create an unreasonable risk of harm arose from the CBAs. The appeals court found that it did not. The players were not arguing that the NFL violated the CBAs at all, but that it violated state and federal laws governing prescription drugs.

The next question was whether the players’ claim nevertheless required interpretation of the CBAs. Here, the appeals court concluded that they could make out each element of a prima facie case for negligence without interpretation of the CBAs. As to the first element, the appeals court concluded that to the extent the NFL was involved in the distribution of controlled substances, it had a duty to conduct such activities with reasonable care. Whether the league breached its duty to handle drugs with reasonable care can be determined by comparing the conduct of the NFL to the requirements of the statutes at issue. There was no need to look to the CBAs.

Causation. As for causation, whether the NFL’s alleged violation of the statutes caused the players’ injuries is a “purely factual question” that “does not ‘require a court to interpret any term of the collective-bargaining agreement.’”

Here, no examination of the CBAs was necessary to determine that distributing controlled substances is an activity that gives rise to a duty of care. The NFL had a duty to avoid creating unreasonable risks of harm when distributing controlled substances that is completely independent of the CBAs. Therefore, no CBA interpretation was required to determine the NFL owed the players a duty and whether it breached that duty.

The appeals court expressed no opinion regarding the merits of the players’ negligence claim. Rather, it held only that their negligence claim regarding the NFL’s alleged violation of state and federal laws governing controlled substances was not preempted by Section 301. Accordingly, the judgment of the district court was reversed and remanded.