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Preemption is the Focus

2014 December 7

It was a busy week in the sports-injury-litigation arena. The NFL Prescription Drug case (Richard Dent et al. v. NFL) continues to heat up as the NFL, NFLPA and retirees duke it out in court filings. And, in a different venue, the NFLPA received a favorable ruling in a concussion lawsuit (Smith et al. v. NFLPA). Both matters focus on the doctrine of preemption.

Ruling Imminent in Prescription Drug Litigation

This case is taking a very unorthodox route to a decision. Judge Alsup has taken a very aggressive and active role in seeking to flesh out the NFL’s position that the retirees’ claims are barred by the collective bargaining agreements (CBAs). This argument hinges on the NFL’s ballistic weapon of choice – preemption.

Judge Alsup posed several questions to the NFLPA – despite the NFLPA not being a party to the lawsuit. In response, the NFLPA contends that the players would be unable to grieve the specific claims alleged in the lawsuit. In other words, there is no provision in the CBAs that would require a court’s interpretation. The NFLPA’s responses triggered reactions from both sides.

The retirees interpret the NFLPA’s position as a resounding victory: the claims are not preempted by any provision of the CBAs.

The NFL, on the other hand, rejects the NFLPA’s position. First, it argues that the NFLPA is wrong, and in fact it has taken the opposite position in a pending concussion lawsuit (see infra) where it is seeking dismissal based on preemption. Second, the NFL argues that this case presents a classic example as to why these claims should be heard, if at all, by an arbitrator – there are interpretative disputes over the meaning of the CBAs, lending itself to the foundational purposes of preemption. Third, and perhaps most convincingly, the NFL cites to several examples where players grieved the “same types of allegations” alleged in the present lawsuit.

As an aside, the NFL attached a treasure trove of exhibits to its briefs. The exhibits (some can be found here and here) involve grievances filed by various players, decision issued by arbitrators and, notably, the Toradol Grievance – NFLPA v. the NFL Clubs. This provides a glimpse of the inner workings of the grievance process.

The retirees must submit their response to the NFL’s brief by Monday, December 8. And Judge Alsup, if satisfied, will issue a decision shortly thereafter.

Although these recent submissions are informative, they arguably distract from the main issue. It matters not whether the claims can be grieved, or even if certain remedies would be foreclosed. At issue is whether the resolution of the claims is dependent upon or requires interpretation of the CBAs. If the answer is no, then the claims are not preempted. If the answer is yes, then the claims are preempted.

At bottom, these are clearly common-law claims that allegedly involve numerous violations of federal and state drug laws. Collective bargaining cannot, in any event, negotiate away fundamental rights. Nor can parties negotiate for things that are illegal. Simply put, this not a labor dispute. The court should reject the NFL’s preemption argument.

Concussion Lawsuit against the NFLPA may be on the Verge of Dismissal

On Tuesday, federal Judge E. Richard Webber of the Eastern District of Missouri may have sounded the death-knell to the concussion litigation against the NFLPA. Judge Webber’s Order can be found here.

At the outset, this is an extremely difficult case. Unions, unlike employers, are granted, in effect, a broad shield of immunity when it comes to lawsuits brought by former and current members.

Preemption, once again, is the go-to weapon of choice for unions when defending these lawsuits. Instead of single-barrel preemption, the union gets a double barrel.

First, a state-law claim against a union can automatically be converted into a duty of fair representation which, then, triggers preemption under the National Labor Relations Act. Generally, a duty of fair representation is the only claim that can be asserted against the union. This claim is difficult to prevail on because of the short statute of limitations (6 months) as well as the burden of proving arbitrary, bad faith or discriminatory conduct, as opposed to mere negligence.

Judge Webber found that the plaintiffs’ state-law claims were subsumed by the duty of fair representation and thus preempted.

Second, Judge Webber also found that at least one of plaintiffs’ claims – negligent misrepresentation – was completely preempted by Section 301 of the Labor Management Relations Act. The court found that the “justifiable reliance” element would require Article 39 of the 2011 CBA to be interpreted, and thus that was sufficient to trigger complete preemption.

Based on these findings, Judge Webber determined federal jurisdiction was present under federal labor law and denied the plaintiffs’ motion to remand.

The case is not over, however. The next process will be for the court to rule on the NFLPA’s motion to dismiss. Although the plaintiffs are on the ropes, they still have another round left. The NFLPA, on the other hand, certainly believes the court just delivered the knockout punch.

To be sure, this decision provides another bullet to a professional-sport organization’s preemption chamber. The only positive to come out of this case is the recognition that Green v. Cardinals is the key to defeating preemption.

Finally, I continue to believe that Section 301 preemption was never intended to expand to the depths it is currently reaching, especially in latent-injury cases involving allegations of concealment. Perhaps it’s time for the Supreme Court to rein in the doctrine’s gigantic reach to ensure that victim’s rights are adequately remedied and defendants aren’t successfully wielding a license to injure with impunity.

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