Avoiding The Preemption Trap – Part 2
December 24, 2017
Sheilla Dingus
In Part 1 of this series I detailed how §301 of the Labor Management Relations Act is the NFL’s number one go-to defense. This provision brings cases filed in various state courts against the league into federal jurisdiction when reliance on CBA interpretation is necessary. Often when the NFL successfully invokes this provision, especially in lawsuits involving retired players, there is no legal standing for the lawsuit under the CBA and the case is dismissed typically without extensive exploration of the merits and allegations of illegal or unethical conduct.
Some lawsuits, including the loss of parental consortium suits filed by the children of Junior Seau and Aaron Hernandez seek to avoid preemption through demonstrating that these children have never been party to any collective bargaining agreement while at the same time focusing their lawsuits against the corporate entities responsible for distributing misleading research and avoiding the NFL Management Council, which is the league’s party to collective bargaining.
Other plaintiffs, represented by attorneys at the Klamann Law Firm have opted to sue their teams instead of the NFL, as teams are not directly involved in collective bargaining. When a lawsuit was filed against the NFL by Richard Dent alleging illegal handling of prescription painkillers, the suit was dismissed on preemption grounds and was appealed to the Ninth Circuit where oral arguments were heard over a year ago and a decision has still not been rendered. A second painkiller lawsuit was filed by a wiidow of a former player, Etopia Evans and several other plaintiffs who collectively played for (or whose husband played for) all thirty-two NFL teams. Instead of suing the league, the teams were named as defendants. The lawsuit survived LMRA preemption but was dismissed on other grounds and is now briefing for an appeal. This appears to be the strategy employed in one concussion settlement opt-out case.
Four lawsuits brought by former NFLers who played in Missouri filed charges against their direct employers – the Kansas City Chiefs and the Arizona (formerly St. Louis) Cardinals for negligence, fraudulent concealment, and misrepresentation of the dangers of the brain injuries they experienced during their NFL careers with these teams.
The brief goes on to state that all of the plaintiffs played either a portion of or their entire careers with the Chiefs or Cardinals, “and it is beyond dispute that the Cardinals and the Chiefs owed Plaintiffs the common law non-delegable duties incumbent upon all employers to maintain a safe working environment, not to expose employees to unreasonable risk of harm, and to warn employees about the existence of dangers of which they could not reasonably be expected to be aware.” Numerous examples of case law are provided which state that the duty to provide a safe work environment exists independent of a CBA.
“Defendants’ misapprehension, whether intentional or not, is pervasive. Repeatedly throughout their opposition brief, Defendants conflate their own independent, common law duties with the duties hypothetically assumed by the National Football League (the “NFL”) or the National Football League Players Association (the “NFLPA”),” states the players’ rebuttal of the Cardinals’ and Chiefs’ opposition, pointing out that all of their cited case law refers to lawsuits filed against the league and not individual teams as employers.
To support their arguments that the case requires CBA interpretation, the Teams state that duties owed by team physicians might have had the effect of “reducing or perhaps replacing” the duties owed by teams, themselves. In their rebuttal, the players say, “this makes no sense.” They assert that the common law duties of an employer to an employee cannot be “reduced or replaced by delegation to a team physician.” They explain that since physicians are also employees and as such cannot have responsibility delegated which would relieve their common employer of its responsibility to provide a safe work place to its employees. “Thus, even if the CBAs expressly assigned to team physicians certain duties with respect to safety, it is of no consequence in determining the scope of the duties owed by the Defendants,” writes counsel for the players. They explain that this designation regarding physicians merely determines that they are employees designated to carry out certain duties in respect to safety.
“Unfazed by the senselessness of their assertions, Defendants continue with utter nonsense, urging that since the CBAs require that head trainers be certified by the National Athletic Trainers Association (“NATA”), the standard of care owed by the teams may be ‘shaped’ by the degree to which the trainers are prepared to handle the risk of repetitive head impacts. . . Once more, the assertion is illogical and lacks credibility. . . [S]ince head trainers are employees of the team, it is utter nonsense to argue that by assigning certain duties to the head trainer, the teams have relieved themselves of a duty.”
In commonality with the Seau lawsuit, these players remind the court that a mere reference of a connection between state law claims and a CBA is not sufficient grounds for preemption.
As with some of the other opt-out lawsuits the defendants cite Maxwell v. Nat’l Football League and Stringer v. Nat’l Football League to support their assertions but a major difference in those cases and this one is that in both of those cited cases the NFL was a defendant. The league is not a defendant here. The plaintiffs’ brief points out, “While the duties assumed by the NFL may very well be shaped by what the teams already knew, the same cannot logically be said of the teams, themselves. This distinction is repeatedly lost on the Defendants.”
“Still undeterred by absurdity,” the brief explains that the Teams assert that because the CBA established a “Joint Committee on Player Safety and Welfare,” their duties may be reduced. They also point to a clause in the CBA which permits players to obtain a second medical opinion, stating that this requires interpretation of the court in regard to the duties required of the Clubs. The players maintain that neither establishing a committee nor granting certain rights to employees, alleviates them from their irrevocable duties as employers to provide a safe workplace.
Again, as argued in other lawsuits where the NFL is a defendant, numerous CBA provisions ranging from “assessment, diagnosis, and treatment of player injuries,” other provisions referencing medical care and still others in which playing rules purport to address player safety are cited as reason for preemption. To this attorneys for the players respond:
“Defendants do no more than claim the possibility of a tangential need to consult these provisions in the CBAs. The Eighth Circuit, however, requires more. Like the Third Circuit, the Eighth Circuit has said that the plaintiffs’ claims “must require the interpretation of some specific provision of a CBA; it is not enough that the events in question took place in the workplace or that a CBA creates rights and duties similar or identical to those on which the state-law claim is based. . . Moreover, even assuming the need to consult the CBAs, “[w]hen the meaning of contract terms is not the subject of dispute, mere reference to or consultation of a CBA plainly does not require the claim to be extinguished.”
Since the Chiefs and Cardinals move to convince the court that some abstract interpretation or the CBA might come into play, the players’ legal team frames the Teams preemption arguments correctly as a defense and then refers to Black’s Law Dictionary which indicates that “for purposes of establishing complete preemption, a dispute over the meaning of a provision in the CBAs may not be introduced by a defendant’s defense.” They also point to case law which supports that unless the elements of a plaintiff’s state-law claim introduce a dispute in regard to a CBA, it cannot be brought up by defense counsel to establish grounds of complete preemption.
“Indeed, though Defendants have had years to draft a response to Plaintiffs’ Motions to Remand,” Defendants have not identified a single provision that is the subject of an actual dispute. . . they are still unable to intelligibly articulate why it would be necessary for the Court to interpret any specific provisions of a CBA to resolve Plaintiffs’ negligence claims. The reason for this is plain – it is not necessary for the Court to interpret the CBAs to resolve Plaintiffs’ negligence claims. Therefore, this Court must finally remand Plaintiffs’ claims.”
In addition to attempts at preemption on negligence claims, the Chiefs and Cardinals assert the same arguments in regard to allegations of fraudulent concealment and misrepresentation. Players’ counsel finds this argument without merit as well, “Since Defendants were Plaintiffs’ employers, a fact they are seemingly incapable of accepting, they owed a common law non-delegable duty of disclosure.”
“Plaintiffs’ claims are clearly and indisputably premised on the common law duties incumbent upon all employers to maintain a safe working environment, not to expose employees to unreasonable risks of harm, and to warn employees about the existence of dangers of which they could not reasonably be expected to be aware. And, although additional, or even identical duties might also arise under a CBA, employees have the option of vindicating their interests by means of either a section 301 action or an action brought under state law, as long as the state-law action as-pleaded does not require interpretation of the collective bargaining contract.”
To illustrate the degree of stretching case law in the Clubs’ brief in opposition of remand, plaintiffs’ lawyers elaborate on a case that was relied upon in the teams’, Gore v. Trans World Airlines.
In Gore, an employee made death threats against other workers. In order to maintain a safe work place, the airline temporarily confined Gore and searched his locker. Gore’s complaint didn’t allege a violation of workplace safety, but instead, false arrest, libel, slander and invasion of privacy. In that lawsuit, measures which govern how to handle an employee who presents a danger to others were bargained for; in fact the CBA required the employer to promptly investigate and resolve threats to workplace safety. Examination of the CBA in this instance was necessary and proper to determine if its provisions were violated in restraining Mr. Gore.
“The court’s conclusion in Gore is as unsurprising and unremarkable as it is inapplicable. So, too, was its observation that employers and employees are free to negotiate what actions an employer may take to preserve the safety and security of the workplace. It is a fundamental precept of labor law that employers and employees may negotiate what actions an employer may take to preserve the safety and security of the workplace. This is not in dispute. Plaintiffs concede that an employer and employees are free to put in writing that which an employer may do (e.g., search lockers, detain those making death threats, and ban those perceived to be dangerous to other employees). Employers may not, however, cast off or negotiate away the actions they must take.”
They conclude the section on Gore by noting a major difference in the cases. While measures detailing how to provide a safe workplace in compliance with state law can indeed be bargained for, they cannot be bargained away.
Another point stressed in support of the motion to remand is the binding Third Circuit precedent in Kline v. Security Guards, Inc. This precedent creates the dispositive question of whether plaintiffs’ state-law claims require the interpretation of and not merely a reference to the CBA. Also established in Kline is the “well-established rule that under the common law, it is the employer, not a labor union, that owes employees a duty to exercise reasonable care in providing a safe workplace.”
The Plaintiffs assert that the Cardinals and Chiefs have made misleading references to Pennsylvania case law and correct the record:
Counsel for Plaintiffs also point to case law cited by the Clubs which they feel is inapplicable in this litigation. In Espinoza v. Cargill Meat Sols. Corp. the Firth Circuit determined that “Espinoza had waived her state law claims, as Texas law allows.” They point to differences in Texas and Missouri law, the latter of which does not permit workplace safety claims to be waived through a CBA. The Chiefs are, and Cardinals were Missouri employers and therefore bound by the laws of the state, they assert. They also point out that “Missouri courts have expressly endorsed that all occupational disease claims arise out of Missouri’s Workers’ Compensation Law.”
While the NFL has had great success in preempting state-law tort claims courtesy of LMRA § 301, this seems to be much less of a given when teams are named as defendants in a state-court lawsuit. As noted earlier Evans et al v. Arizona Cardinals et al, survived preemption in the Ninth Circuit whereas the similar Dent suit in which the NFL was a named defendant did not. While Evans was later dismissed based on California Workers’ Compensation law and statutes of limitations, it did survive the Clubs’ preemption arguments. Very nice work here from Klamann and colleagues. Here’s hoping they can run with this all the way to a jury trial end zone.
