902 F.3d 1109
9th Cir.2018Background
- Plaintiffs are retired NFL players who allege the NFL directly provided and encouraged use of opioids, NSAIDs, Toradol, and local anesthetics without proper prescriptions, labeling, warnings, or recordkeeping, causing long-term injuries and addictions.
- Plaintiffs filed a putative nationwide class action asserting state-law claims: negligence (styled as negligence per se), negligent hiring/retention, negligent misrepresentation, fraud/fraudulent concealment, loss of consortium, declaratory relief, and medical monitoring.
- Plaintiffs allege the NFL itself (not just individual clubs) coordinated, controlled, and distributed medications (e.g., league-wide Toradol policy, NFL Security Office control of medications).
- District court dismissed the suit as preempted by § 301 of the Labor Management Relations Act (LMRA); plaintiffs appealed. Ninth Circuit reviews § 301 preemption de novo.
- The Ninth Circuit applies the two-step Burnside/Schurke framework: (1) do the rights arise from the CBA? (2) if not, would resolution require interpreting the CBA? The court construes plaintiffs’ allegations as true on this motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ state-law claims are preempted by § 301 LMRA | Plaintiffs: claims arise from NFL’s independent illegal distribution and misrepresentations about drugs, not from CBAs | NFL: claims implicate CBA medical provisions and dispute-resolution procedures; plaintiffs must exhaust CBA grievance process | Not preempted — plaintiffs’ pleaded claims do not arise from CBAs and can be adjudicated without interpreting CBAs |
| Negligence (negligence per se) — duty/standard | Dent: NFL had a common-law/statutory duty when distributing controlled substances; statutes set standard of care | NFL: duties belong to clubs/club physicians under the CBA; any duty assessment requires CBA interpretation | Not preempted — duty exists independent of CBAs; statutory standards govern breach; causation is factual and does not require CBA interpretation |
| Negligent hiring & retention | Dent: NFL employed or retained personnel overseeing medication distribution and can be liable for negligent hiring/retention | NFL: CBA governs medical staffing and qualifications, so analysis requires CBA interpretation | Not preempted — duty and foreseeability arise under common law; CBA provisions relate to clubs, not NFL, so claims can be decided without CBA interpretation |
| Fraud / negligent misrepresentation / fraudulent concealment | Dent: NFL made affirmative misrepresentations/omissions about medications; reliance and duty are factual questions independent of CBAs | NFL: plaintiffs’ reliance and scope of duties are governed by CBA medical-disclosure provisions, making claims subject to preemption | Not preempted — elements (misrepresentation, intent, reliance, duty) are factual and resolvable without interpreting CBAs; no CBA provision renders reliance manifestly unreasonable |
Key Cases Cited
- Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009) (distinguishes statutory claims not requiring CBA interpretation from common-law claims that do)
- Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024 (9th Cir. 2016) (describes § 301 federal common law and preemption principles)
- Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (U.S. 1985) (§ 301 requires federal common law for labor-contract disputes; CBA cannot sanction illegal action)
- Burnside v. Kiewit Pac. Corp., 491 F.3d 1053 (9th Cir. 2007) (two-step § 301 preemption test: rights from CBA and whether CBA interpretation is required)
- Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) (plaintiff’s claim is the touchstone; CBA must be interpreted to preempt)
- Caterpillar, Inc. v. Williams, 482 U.S. 386 (U.S. 1987) (state-law claims are preempted if they are substantially dependent on CBA; defenses based on CBA do not trigger preemption)
- Livadas v. Bradshaw, 512 U.S. 107 (U.S. 1994) (consulting a CBA is not the same as interpreting it for preemption purposes)
- Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (U.S. 1988) (purely factual questions do not require CBA interpretation)
- Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (U.S. 1994) (causation and factual inquiries do not implicate CBA interpretation)
- Humble v. Boeing Co., 305 F.3d 1004 (9th Cir. 2002) (CBA provisions only potentially relevant do not trigger preemption)
- Atwater v. Nat’l Football League Players Ass’n, 626 F.3d 1170 (11th Cir. 2010) (negligence claim preempted where duty arose from CBA; reliance reasonableness required CBA interpretation)