Richard Dent, et al v. National Football League

Filing 154

ORDER DENYING 145 DEFENDANT'S MOTION TO DISMISS Signed by Judge William Alsup. (whalc4, COURT STAFF) (Filed on 2/19/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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RICHARD DENT, JEREMY NEWBERRY,
ROY GREEN, J.D. HILL, KEITH VAN
HORNE, RON STONE, RON
PRITCHARD, JAMES MCMAHON, and
MARCELLUS WILEY, on behalf of
themselves and all other similarly situated,

No. C 14-02324 WHA

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

Plaintiffs,
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v.
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NATIONAL FOOTBALL LEAGUE, a New
York unincorporated association,
Defendant.

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INTRODUCTION

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In this putative class action alleging improper administration of pain medications to

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professional football players, defendant moves to dismiss plaintiffs’ third amended complaint.

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For the reasons stated below, the motion is DENIED.

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STATEMENT
This action comes remanded on the heels of six years of litigation and two trips to our

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court of appeals. Prior orders have set forth in detail the well-pled background facts, assumed

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to be true for purposes of the present motion (Dkt. Nos. 106, 135). In brief, defendant National

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Football League is an unincorporated association of 32 separately-owned and independently-

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operated professional football “clubs” or teams. The NFL promotes, organizes, and regulates

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the sport of professional football in the United States. Named plaintiffs are nine retired

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individuals who were employed by and played for a number of those football teams at various

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points in time between 1969 and 2008 (Third Amd. Compl. ¶¶ 17, 18, 28, 37, 46, 56, 65, 75,

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85, 95).1

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Since 1968 onward, the NFL players’ union (“NFLPA”), “which is recognized as the sole

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and exclusive bargaining representative of present and future employee players in the NFL,”

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and the NFL Management Council (“NFLMC”), “which is recognized as the sole and

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exclusive bargaining representative of present and future employer member Clubs of the

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[NFL,]” have entered into various collective-bargaining agreements (“CBAs”) (Curran Exhs.
1–13) (Preamble). The NFL, the clubs, and the players have all been bound by the CBAs’

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United States District Court
Northern District of California

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terms.2

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In May 2014, plaintiffs brought this putative class action against the NFL, followed by a

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second amended complaint in September 2014. They alleged that they sustained various

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injuries— such as muscular/skeletal injuries and internal organ injuries — as result of what

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they have coined the NFL’s “return to play” business plan. Under this plan, which aimed to

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maximize profits, injured players were supplied an endless stream of strong pain medications

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— such as Toradol, opioids, local anesthetics, and combinations thereof — to dull their pain so

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that they could be returned to the filed as quickly as possible, without allowing for proper

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healing time. The medications were distributed, plaintiffs alleged, without proper prescription,

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documentation, or disclosure of medical risks and side effects, in violation of various laws.

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Plaintiffs’ second and then-operative complaint brought nine claims against the NFL arising

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The previous two complaints included former player Jonathan Rex Hadnot as a plaintiff.
Hadnot had played in the NFL as recently as 2012. For that reason, in considering the NFL’s
2014 motion to dismiss the second amended complaint, a prior order took judicial notice of not
just the 1968, 1970, 1977, 1977, 1982, 1993, and 2006 collective bargaining agreements
(“CBAs”), but also the 2011 CBA. The 2011 CBA, however, is not applicable to any of the
plaintiffs in the third amended complaint, as none of them played in the NFL beyond 2008.
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Although the NFL was not a formal signatory to the CBAs until 2011, our court of
appeals held that that the pre-2011 CBAs were nevertheless binding on the NFL. Dent v. Nat’l
Football League, 902 F.3d 1109, 1114 n.2 (9th Cir. 2018) (“Dent I”); see also Atwater v. National
Football League Players Ass’n, 626 F.3d 1170, 1178 (11th Cir. 2010) (“although not a formal
signatory, the NFL is bound by the CBA’s terms.”).
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out of this alleged conduct. Among other claims, plaintiffs brought claims for negligent

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misrepresentation, negligent hiring and retention, and negligence per se. Their negligence

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claim was predicated on per se violations of various federal drug statutes, such as the

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Controlled Substances Act (“CSA”), the Food, Drug, and Cosmetic Act (“FDCA”), and

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corresponding state laws.3

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PROCEDURAL HISTORY.
A.

DENT I.

In 2014, the NFL moved to dismiss plaintiffs’ second amended complaint on the ground

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that all the claims stated therein were preempted under Section 301 of the Labor Management

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Relations Act, 29 U.S.C. § 185(a). Section 301 preempts state-law claims, “founded directly

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United States District Court
Northern District of California

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on rights created by collective-bargaining agreements, and also claims substantially dependent

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on analysis of a collective-bargaining agreement.” Caterpillar, Inc. v. Williams, 482 U.S. 386,

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394 (1987) (citation and quotation omitted). A claim that requires interpretation of a CBA is

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substantially dependent on analysis of the CBA and is thus preempted. See Dent I, 902 F.3d at

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1116. A 2014 order granted the NFL’s motion, finding that plaintiffs’ claims required

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interpreting the CBA provisions related to player health and safety (Dkt. No. 106).

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The essence of the then-operative second amended complaint, the 2014 order said, was

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“that the individual clubs mistreated their players and the league was negligent in failing to

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intervene and stop their alleged mistreatment” (Dkt. No. 106 at 3) (emphasis added). That

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order held that plaintiffs’ negligence based claims were preempted because to assess the

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reasonableness of the NFL’s conduct towards the players, it would have been necessary to

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consider the long history of provisions agreed to by the NFL in CBAs intended to protect the

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players. In turn, this consideration of the CBAs triggered the preemption rule within our

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circuit, as exemplified by Cramer v. Consolidated Freightways Inc., 255 F.3d 683, 689–93

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(9th Cir. 2011) (en banc). More specifically, in evaluating whether or not the NFL had acted

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In May 2015, a separate putative class action against the individual clubs involving the
same alleged conduct was filed. See Evans v. Arizona Cardinals Football Club, LLC, No. C 1601030 WHA. That action was deemed related to this action and thus transferred to the
undersigned judge on March 1, 2016.
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negligently “in policing the clubs and in failing to address medical mistreatment by the clubs,”

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various provisions in the CBAs protecting player health and safety would need to be consulted

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and interpreted (id. at 7) (emphasis added). Accordingly, the 2014 order found that that theory

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of liability was preempted by Section 301.

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A fundamental canon of the 2014 order was that the doctors and trainers that treated the
plaintiffs were employees of the clubs, not the NFL — and that plaintiffs’ claims were thereby

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predicated on the NFL’s failure to police the clubs and their physicians who were the ones

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administering and distributing drugs in violation of various laws (allegedly). It thus rejected

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plaintiffs’ argument that their claims against the NFL should fall under the illegality exemption

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to Section 301 preemption first articulated in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212

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Northern District of California

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(1985) (Section 301 “does not grant the parties to a collective-bargaining agreement the ability

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to contract for what is illegal under state law.”).4

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Plaintiffs appealed the 2014 order. In 2018, our court of appeal reversed and remanded.

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Dent v. Nat’l Football League, 902 F.3d 1109, 1118 (9th Cir. 2018) (“Dent I”). As relevant

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here, it held that plaintiffs’ negligence per se theory neither arose from the CBAs nor required

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their interpretation and was thus not preempted by Section 301. It so ruled based on plaintiffs’

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pitch that the thrust of their complaint was that the NFL itself supplied and distributed the

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endless stream of controlled substances alleged, in violation of various federal and state

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statutes regulating their distribution. Our court of appeals agreed with plaintiffs’ reading of

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their second amended complaint, as evidenced by the following exchange between the

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appellate court and counsel for the NFL (Dkt. No. 131-1 at 11) (emphasis added):

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THE COURT:

Counsel, what do we do with the allegation in the
complaint that the NFL directly gave drugs to
athletes?

MR. CLEMENT:

Well, I think what you do is you read it in the
context of the entire complaint, so with respect to
every one of the ten plaintiffs, the specific
allegations are that they were given injections by
the team doctors, the doctors . . .

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By contrast, in Evans v. Arizona Cardinals Football Club LLC, 2016 WL 3566945 (N.D.
Cal. July 1, 2016), a related litigation brought against the NFL clubs, the undersigned judge held
that the plaintiffs’ claims fell under the illegality exemption and were thus not preempted.
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THE COURT:

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I’m looking at paragraph 17 of the complaint. This
is the second amended complaint, the NFL directly?
I’m going to put some ellipses in here. The NFL
directly supplied players with opioids.

This reading of the complaint drove our court of appeals’ analysis. It construed the
second amended complaint as “not merely alleging that the NFL failed to prevent medication

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abuse by the teams, but that the NFL itself illegally distributed controlled substances, and
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therefore its action directly injured players.” 902 F.3d at 1118 (emphasis in original). “With
that reading of the complaint in mind,” our court of appeals held that “to the extent the NFL is

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involved in the distribution of controlled substances, it has a duty to conduct such activities
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with reasonable care” and that the “minimum standards [of care] are established by statute,”

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such as the CSA and FDCA. Ibid. To the extent the NFL violated those laws, a ruling on
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Northern District of California

plaintiffs' claims did not require interpretation of the CBAs. Id. at 1118–19. Specifically,
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citing Allis-Chalmers, Dent I reasoned that:
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the teams' obligations under the CBAs are irrelevant to the
question of whether the NFL breached an obligation to players by
violating the law. The parties to a CBA cannot bargain for what is
illegal. Therefore, liability for a negligence claim
alleging violations of federal and state statutes does not turn on
how the CBAs allocated duties among the NFL, the teams, and the
individual doctors.

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Id. at 1121 (emphasis in original).
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Accordingly, our court of appeals held that plaintiffs' “negligence claim regarding the

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NFL's alleged violation of federal and state laws governing controlled substances [was] not
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preempted by [Section] 301.” Id. at 1121 (emphasis added). Dent I expressly limited its
holding to the issue of preemption and remanded the action to consider “whether the plaintiffs
have pleaded facts sufficient to support” their negligence claim. Plaintiffs were warned by the
appellate court not to “conflate” actions by the club doctors and trainers with those of the NFL,
as plaintiffs were “limited to claims arising from the conduct of the NFL and NFL personnel.”

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Ibid.
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B.

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DENT II.

Once remanded, plaintiffs were granted leave to file their “best and final” complaint

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(Dkt. Nos. 117 at 1; 118). Their third and operative complaint brought only a single claim for
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negligence. In 2019, the NFL moved to dismiss under Rule 12(b)(6) contending that plaintiffs
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had failed to state a claim. Plaintiffs opposed, contending that they had plausibly alleged
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conduct showing that the NFL owed them an independent duty based on three different
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theories: (1) special relationship; (2) voluntary undertaking; and (3) negligence per se. An
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April 2019 order disagreed with plaintiffs and granted the NFL’s motion to dismiss (Dkt. No.
135). That order dismissed the negligence per se theory because, “nowhere in the third

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amended complaint do plaintiffs allege, as they previously pitched before our court of appeals,
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that the NFL undertook to provide direct medical care and treatment to players such that its

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conduct violated any relevant drug laws” (Dkt. No. 135) (emphasis added).

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Again, plaintiffs appealed. Our court of appeals affirmed in part and reversed in part. It
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affirmed dismissal based on the special relationship and negligence per se theories, but
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reversed based on its finding that plaintiffs had pled a plausible negligence claim based on
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voluntary undertaking. Dent v. Nat’l Football League, 968 F.3d 1126 (9th Cir. 2020) (“Dent

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II”).
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As to negligence per se, our court of appeals noted that the 2019 district court order
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rigidly construed Dent I and “missed the mark somewhat” insofar as it required plaintiffs to
allege the NFL’s “direct” involvement in the handling, distribution, and administration of
controlled substances, as opposed to the NFL’s “indirect” supply or “coordination” of the

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same. It nonetheless held that the 2019 order correctly identified the main deficiency in
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plaintiffs’ third amended complaint: “the dearth of allegations regarding NFL behavior that
violates the duty to ‘comply with federal and state laws’ outlined [therein.]” Id. at 1131.

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Importantly, in Dent II, plaintiffs again flip-flopped, that is, they retreated from their winning
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pitch in Dent I that the NFL itself had violated the controlled substances statutes. At oral
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argument before the appellate court, plaintiffs’ counsel conceded that:

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the phrase “NFL doctors and trainers,” as used in the TAC, does
not actually refer to any employees of the NFL itself.
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the Club doctors and trainers appear to be the only relevant actors
purportedly in violation of statutory requirements.
Id. at 1131. This deficiency doomed plaintiffs’ negligence per se theory, even at the court of

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appeals.
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As to voluntary undertaking, Dent II held that plaintiffs had plausibly alleged such a
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theory of negligence under California law, and that the 2019 district court order had erred in its
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ruling to the contrary. In our court of appeals’ own words, the following factual allegations
supported the complaint’s allegation “that the NFL ‘voluntarily undertook the duty’ to ‘ensure
the proper recordkeeping, administration and distribution of Medications,’ but ultimately failed
to protect players due to its ‘business culture in which everyone’s financial interest depends on
supplying Medications to keep players in the game’ ”:

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[T]he NFL created a drug oversight program in 1973,
which “required teams and their doctors to report to the NFL
regarding the administration of Medications.”
Beginning in at least the early 1990s, the NFL allegedly “began
auditing clubs’ compliance with [federal drug] laws,” such as “the
types of drugs being administered, the amounts in which they were
administered,” and related information.
Plaintiffs also claim that the NFL has “mandated procedures to
control the drug distribution system,” including the registration of
the Clubs’ facilities as storage facilities for controlled substances,
the use of tracking software by SportPharm, and periodic drug-use
audits by the NFL Security Office. NFL Club trainers and
doctors are supposedly “mandated by the NFL to meet on a yearly
basis” with NFL officials, and doctors provide “reports directly to
the League about the Medications.”
The NFL also purportedly funded studies on Toradol use, which
resulted in Toradol guidelines that were not followed.
Furthermore, Plaintiffs claim that the NFL is aware of improper
handling of pain medications and that its “standard of treatment for
professional athletes [is] ‘outside the lines.’ ” A document written
by a non-Club doctor, which was apparently commissioned by the
NFL, bluntly states that both “appropriate (properly prescribed and
monitored) and inappropriate opioid and non-opioid pain
medication use” are “much more prevalent in the NFL than in
virtually any other industry, population or endeavor,” which
“means that there is a shared responsibility and joint culpability for
the problem.” And the NFL was alerted, via the same report, that
players “who would otherwise not play or play at the same level of
competitiveness may be induced by a pain medication and their
personal financial/reputational incentives to play under conditions
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that could exacerbate their injuries and hinder their recovery,” and
“will be at longer-term risk for developing abuse or addiction.”
The NFL has promulgated rules such as the “NFL Prescription
Drug Program and Protocol,” with the purpose (as that document
allegedly states) of “provid[ing] guidelines for the utilization of all
prescription drugs provided to players and team personnel by
physicians and other healthcare providers and associated the [sic]
NFL clubs” and “to ensure [ ] appropriate handling (purchase,
distribution, dispensing, administration and recordkeeping)” in
compliance with “regulations of the Federal Drug Enforcement
Administration (DEA) as they apply to controlled substances.”
And yet, “when the DEA investigated the clubs [in 2010], nothing
had changed. The clubs still did not understand — and were in
woeful non-compliance with — the law regarding controlled
substances, as evidenced by the many, many violations thereof.”
Players continued to face the heightened risks associated with
playing through their injuries while receiving improperly handled
and administered medications, and the NFL allegedly was aware of
this from its audit results but nonetheless turned a blind eye to
maximize its revenues.
The TAC paints a picture of the NFL’s “mandated” and “required”
audits, oversight, and procedures regarding drug distribution across
member Clubs, as well as the NFL’s failure to enforce rules that it
knows are necessary to avoid further injury to players.

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Dent II, 968 F.3d at 1132–1133 (quoting Third Amd. Compl. ¶¶ 159–182, 305). The foregoing

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allegations supported “[p]laintiffs’ theory that the NFL undertook ‘the duty of overseeing [the]

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administration’ of the distribution of pain medications to players and is aware that it should be

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providing protections.” Id. at 1134 (quoting Third Amd. Compl. ¶ 162).

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In finding that plaintiffs had stated a plausible voluntary undertaking claim, Dent II relied

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mainly on Mayall on Behalf of H.C. v. USA Water Polo, Inc., 909 F.3d 1055 (9th Cir. 2018).

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There, the plaintiffs, youth water polo players, alleged that USA Water Polo breached its

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voluntary undertaken duty to protect their health and safety by “failing to establish a

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concussion-management and return-to-play protocol for its youth water polo league.” Id. at

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1066–67. Dent II linked the breach alleged by plaintiffs here — “physical harm that resulted

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from their premature return to play after suffering otherwise debilitating injuries masked by

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over-prescription of pain-relieving medications” — to “the alleged failure on the part of USA

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Water Polo to ‘use its authority to provide routine and important safety measures’ regarding

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return-to-play methods after an injury has been sustained.” 968 F.3d at 1134 (quoting Mayall,

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909 F.3d at 1067). It noted that:
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Despite the NFL’s one-step-removed relationship to the players, it
was within the NFL’s control to promulgate rules or guidelines that
could improve safety for players across the league.

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The [complaint] even alleges that the NFL has already
demonstrated its ability to create better policies, regarding Toradol
use for example, but has failed to enforce them.

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Ibid. As to the last element of a claim for voluntary undertaking, Dent II held that plaintiffs’

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allegations supported their claim that “the NFL’s alleged carelessness in allowing drugs to be

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distributed as they were increased the risk of harm to plaintiffs.” Id. at 1135. It reasoned that:

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In the TAC, each player recounts the drugs he recalls being given
during his NFL career and the injuries he suffered on the field that
were allegedly “caused, aggravated, extended, worsened,
prolonged, exacerbated, intensified, perpetuated, protracted, or
made permanent by the wrongful administration of Medications to
him.” Plaintiffs state that some “doctors they saw after their
careers concluded . . . that some of their ailments might be the
result of the amount of Medications they took during their NFL
careers.” Additionally, we have already previewed Plaintiffs’
contention that the NFL received a medical report stating that
the organization's policies regarding drug distribution create “short
and long term risks of pain medication use and abuse.”

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Northern District of California

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Id. 1134–35. For the foregoing reasons, our court of appeals concluded that plaintiffs had
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properly pled all elements of a voluntary undertaking claim under California law.
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Our court of appeals did not rule, however, on the issue of whether or not plaintiffs’

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voluntary undertaking theory of negligence was preempted under Section 301 of the LMRA.
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Plaintiffs had not pled a voluntary undertaking claim in Dent I and our court of appeals thus
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had not occasion to consider it then. Noting that the preemption issue lurked in the
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background, it remanded this action for this Court to consider whether the voluntary
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undertaking claim was preempted “in light of the relevant CBAs and [its] guidance in Dent I.”

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Specifically, Dent II gave the following instruction:
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We said [in Dent I] that “[t]he negligence analysis is not an
equation, whereby one careless act can be canceled out by a careful
act in a related arena — especially when the careful act is to be
performed by a different party.” Dent I, 902 F.3d at 1121. The
district court should examine afresh whether the NFL’s general
disclaimer of liability for individual players’ medical treatment is
relevant to the sufficiently pled allegations of the organization’s
inaction, where audit results demonstrate failure to safely distribute
pain killers to keep marquee players in the game and maximize
television revenues.
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968 F.3d at 1135–36.
*

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*

*

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The NFL now moves to dismiss plaintiffs’ third amended complaint, claiming that

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plaintiffs’ sole negligence claim is preempted because their voluntary undertaking theory is a

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reincarnation of the theory deemed preempted by the 2014 order (i.e., that the NFL failed to

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curb the clubs’ health abuses), and thus should be deemed preempted for the same reasons:

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namely, that plaintiffs’ claim is substantially dependent on and would require interpretation of

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many of the CBAs’ health and safety provisions to determine whether it acted negligently

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(Dkt. No. 150). Plaintiffs oppose. This order follows full briefing and oral argument.
ANALYSIS

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Northern District of California

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As an initial matter, there’s some ambiguity in our court of appeals’ instruction that this

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Court “examine afresh whether the NFL’s general disclaimer of liability for individual players’

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medical treatment is relevant” to the preemption inquiry. Our court of appeals did not provide

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a citation as to which CBA or which section(s) thereof it was referring to. The NFL says that

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the appellate court was alluding to a disclaimer in the 2011 CBA, a disclaimer it had

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previously referenced in Dent I. See 902 F.3d at 1124 n.9. That disclaimer states that nothing

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in the 2011 CBA should “be deemed to impose or create any duty or obligation upon either the

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[NFL] or the NFLPA regarding diagnosis, medical care and/or treatment of any player”

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(Curran Exh. 11 at Article 39, Section 3) (2011). The NFL does not rely on this disclaimer for

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purposes of its present motion and no similar disclaimer appears in previous CBAs. At the

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hearing, both parties conceded that, with Jonathan Rex Hadnot no longer a plaintiff, the 2011

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CBA has no application to the current plaintiffs named in the third amended complaint, though

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it may become relevant if and when a class is certified. Accordingly, at this stage of litigation,

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the general disclaimer of liability is irrelevant.

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Having considered the applicable CBAs, the NFL’s motion to dismiss is DENIED
to raising all the preemption points again on summary judgment or at

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WITHOUT PREJUDICE

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trial. While the NFL says that the “core” injury plaintiffs allege arises out of their premature

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“return-to-play” — an issue the CBAs cover — other injuries, such as the harmful and long10

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term side effects from over-administration of prescription medications, are also implicated.

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And, unlike “return-to-play,” the proper administration and distribution of medications is not a

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subject the CBAs explicitly cover. Counsel for plaintiffs insist they can prove the voluntary

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undertaking claim without reference to any of the CBAs, such as through voluntary programs

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that the NFL allegedly imposed on the individual clubs. To illustrate the viability of their

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proposed method of proof, there will need to be a matching of each such undertaking against

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the CBAs to assess the extent to which interpretations of the CBAs are intertwined with the

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voluntary programs.
Another problem is whether the plaintiffs’ proof and theory will be that the undertaking

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itself was negligently carried out, as opposed to whether the NFL failed to intervene and stop

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Northern District of California

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the clubs’ alleged abuses of controlled substances in the face of receiving information to that

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effect. For example, plaintiffs point to the NFL’s audits of the clubs’ use of prescription drugs,

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which allegedly showed or should have showed that the clubs were supplying copious amounts

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of painkillers to players. Now, if the theory is that the audits themselves were negligently

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conducted (such that they failed to reveal the true extent of the problem), then little or no

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interpretation of any CBA will be required. On the other hand, if the theory is that the audits

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showed rampant misuse of painkillers by the clubs and that the NFL’s failure to intervene

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constituted negligence, then in evaluating whether the NFL failed to do enough, we will need

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to look at what the NFL committed to do on that subject (if anything) in the CBAs. And, we

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will need to evaluate the extent to which the terms of any CBA need to be “interpreted.” At

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the hearing, the NFL’s counsel was unable to identify a single provision of any CBA that was

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ambiguous and needed “interpretation.” See Dent I, 902 F.3d at 1116 (“claims are only

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preempted to the extent that there is an active dispute over the meaning of contract terms.”)

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(citation and quotation omitted)).

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This case has been to the court of appeals twice and the NFL has failed to win an

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affirmance of prior dismissals. Rather than a third dismissal and overindulgence in judicial

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notice, the Court believes the record for the court of appeals will be more complete and true to

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history if we proceed to trial and/or summary judgment.
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CONCLUSION

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For the foregoing reasons, the NFL’s motion to dismiss is DENIED WITHOUT PREJUDICE.
A case management order will follow.

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IT IS SO ORDERED.
Dated: February 19, 2021.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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United States District Court
Northern District of California

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