Are You Ready for Some Football?

September 19, 2018

As fans head back to the stadiums, the NFL is headed back to court after the 9th Circuit reversed and remanded a Northern District of California decision from December 17, 2014 dismissing a class action suit against the NFL. The September 6, 2018 decision re-opened the case after finding that the class claims were not preempted by the Labor Management Relations Act regarding collective bargaining agreements. The 9th Circuit did not make a ruling on the underlying claims, which if accepted as true are quite alarming.

The district court’s ruling to dismiss was based, in part, on section 301 of the Labor Relations Act, 29 U.S.C.A. 185. This provision of the Labor Relations Act requires that a district court action be brought by the labor organization representing the employees when a dispute is based on a collective bargaining agreement. The original argument here being that despite the complaint not implicating the collective bargaining agreement, it must be applicable and therefore the action must be brought by the labor organization. In this instance, that would be the NFL Players Association. Instead, this class action was brought by retired players as a class of their own behalf making state law claims of negligence.

However, in the Northern District of California ruling to dismiss the action originally, they determined the claims of negligence can’t be based on state law in part because “no decision in any state (including California) has ever held that a professional sports league owed such a duty to intervene and stop mistreatment by the league’s independent clubs.” (Order Re Motions to Dismiss and Requests for Judicial Notice, December 17, 2014, pg. 6). Therefore, it follows that since the duty can’t be based on state law claims, they must be found to arise under the collective bargaining agreement. The 9th circuit disagreed though and found that the state law claims neither arise from the collective bargaining agreement nor require any interpretation of it.

The retired players specifically allege the NFL not only failed in their duty to protect players from the individual teams but they were also the source of prescription drugs that were illegally and excessively distributed. The complaint implicates opioids, NSAIDs, and anesthetics being freely handed out by teams and the NFL themselves without prescriptions and without any explanation of the side-effects of their use. They assert the routine was so prolific that at one time amphetamines were left out in bowls in locker rooms. They claim this practice supported a culture of pressuring players to continue playing even at the cost of their own health. They cite Washington Post surveys in support which found that 90% of players reported playing hurt and 68% of players felt they had no choice but to play hurt.

The 9th Circuit makes no determination of their allegations stating, “[p]erhaps plaintiffs can prove these elements; perhaps not.” Despite ruling the negligence claims can continue, they note there is a potential issue with the pleadings that “the plaintiffs appear to conflate the NFL and the teams” and that separate actions against the individual teams have already been brought by them. As such, the 9th Circuit specifically orders the action should continue against the NFL and their personnel only, not the individual teams.

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