Ballard et al v. National Football League Players Association et al

Filing 43

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the NFLPA's motions to dismiss [Ballard # 21; Smith # 26] are granted. IT IS FURTHER ORDERED that the motions to dismiss filed by individual defendants Armstrong and Mawae [Ballard # 22; Smith # 27] are granted. Judgments in favor of the defendants are entered separately this same date. Signed by District Judge Catherine D. Perry on 8/18/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTIAN BALLARD, et al.,
Plaintiffs,
vs.
NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION, et al.,
Defendants.

NEIL SMITH, et al.,
Plaintiffs,
vs.
NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION, et al.,
Defendants.

)
)
)
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) Case No. 4:14CV1267 CDP
)
)
)
)
)

)
)
)
)
) Case No. 4:14CV1559 CDP
)
)
)
)
)

MEMORANDUM AND ORDER
These consolidated cases come before me on nearly identical motions to
dismiss filed by the National Football League Players Association (“NFLPA”) and
two of its former presidents. The plaintiffs, who are former National Football
League players and members of the NFLPA, brought counts based in fraud, civil
conspiracy, and negligence. The fraud and civil conspiracy counts allege breaches

of the duty of fair representation and so are completely preempted by section 9(a)
of the National Labor Relations Act. The negligence counts require an
interpretation of collective bargaining agreements, and they are resultantly
preempted by section 301 of the Labor Management Relations Act. Both sets of
preempted claims are untimely, and they will be dismissed. Finally, the plaintiffs
assert a count for medical monitoring, which is derivative of the other counts and
will also be dismissed. The defendants’ motions will be granted.
Background
Plaintiffs are former players (collectively, “Players”) for various National
Football League (NFL) teams whose careers ranged from 1975 to 2012. They
brought two separate cases against their union, the National Football League
Players Association (NFLPA), and two of its former presidents, Kevin Mawae and
Raymond Lester Armstrong, III (the “Individual Defendants”).
The Ballard case, No. 4:14CV1267 CDP, is a putative class action brought
in this District by Christian Ballard (who played from 2011–2012), Joe Horn
(1996–2007), and Gregory Westbrooks (1975–1981). The Smith case, No.
4:14CV1559 CDP, was brought in state court by thirteen players: Neil Smith
(1988–2000), Ladell Betts (2002–2010), Anthony Davis (1993–2010), Vaughn
Booker (1994–2002), Ron Dugans (2000–2002), Sheddrick Gurley (2002), Chad
Johnson (formerly Chad Plummer, 1999–2001), Kendyll Pope (2004–2005), Corey

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Sawyer (1994–1999), Shevin Smith (1998–2000), Tarlos Thomas (2002),
Tamarick Vanover (1995–1999, 2002), and Kevin Williams (1999–2001). Players
in both cases assert nearly identical claims for fraudulent concealment, fraud,
negligent misrepresentation, negligence, negligent hiring (against the NFLPA
only), negligent retention (against the NFLPA only), medical monitoring, and civil
conspiracy.
The Smith defendants removed that case to this court, and the Honorable E.
Richard Webber denied the Smith players’ motion to remand. See Smith v. Nat’l
Football League Players Ass’n, No. 4:14CV1559 ERW, 2014 WL 6776306, at *1
(E.D. Mo. Dec. 2, 2014), ECF No. 34. In that Order, Judge Webber held that the
Smith players’ claims for fraudulent concealment, fraud, and civil conspiracy were
preempted by the duty of fair representation under the National Labor Relations
Act. Judge Webber also found that the Smith players’ claims for negligent
misrepresentation were preempted under section 301 of the Labor Management
Relations Act. Thereafter, the Smith case was transferred to me and consolidated
with the Ballard case for pretrial purposes.
In both the Ballard and Smith pleadings, the substantive allegations are
nearly identical.1 During their respective careers, Players suffered multiple

1

The primary differences relate to the residency and work history of the individual Plaintiffs and
the class allegations in Ballard.

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repetitive traumatic head impacts and concussions during practices and games.
These injuries were neither acknowledged nor treated while Plaintiffs were players.
Players paid money throughout their careers to the NFLPA as association dues.
The NFLPA assured Players they would protect them and owed them a fiduciary
duty, stating that they would act in Players’ best interests at all times. However,
the NFLPA did not spend significant funds on research into ways to mitigate or
prevent brain trauma, such as developing safer helmets, competition rules, or
football equipment. The NFLPA also failed to certify medical personnel that
treated NFL players, despite having a duty to do such.
Players allege that the Defendants were in a superior position of knowledge,
and they knew the dangers and risks associated with repetitive head impacts and
concussions. They attained this knowledge from the NFLPA’s own medical
consultants and commissioned studies on the subject, the NFLPA’s participation in
the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan,
and the NFLPA’s participation in the Mild Traumatic Brain Injury Committee.
Despite that superior knowledge, the Defendants knowingly concealed the
information from the Players and fraudulently misrepresented there was no link
between head impacts and cognitive decline. The Players allege that these actions
caused or contributed to cause Players to suffer long-term neuro-cognitive injuries,
including dementia, depression, memory loss, and chronic traumatic

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encephalopathy (“CTE”), a condition caused by repetitive sub-concussive and/or
concussive blows to the head. The Players allege that by concealing or omitting
information, the Defendants caused Players to ignore the need for treatment.
In both cases, the NFLPA has filed nearly identical motions to dismiss,
arguing that all the Players’ claims allege that the NFLPA failed in its duty of fair
representation and are thus preempted by the NLRA; that any duty beyond fair
representation would necessarily emanate from the NFL-NFLPA collective
bargaining agreements (CBAs) and, thus, are preempted by section 301 of the
LMRA; and that the Players fail to state a claim. The Individual Defendants have
also filed in both cases nearly identical motions to dismiss that incorporate the
NFLPA’s arguments as well as raise additional arguments, such as the absence of
personal jurisdiction, that are tailored to their status as individuals.
Discussion
The Defendants rely on CBAs attached as exhibits to their supplementary
briefing in support of their motions to dismiss. A motion to dismiss pursuant to
Rule 12(b)(6) must be treated as a motion for summary judgment when matters
outside the pleadings are presented and not excluded by the trial court. McAuley v.
Fed. Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007) (quoting Hamm v. Rhone-Poulenc
Rorer Pharms., Inc., 187 F.3d 941, 948 (8th Cir. 1999)). Where the extraneous
documents are central to the plaintiff’s case, such as the written contract in a

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contract dispute, the court may examine the documents in deciding a motion to
dismiss. See Stahl v. U.S. Dep’t of Agriculture, 327 F.3d 697, 700 (8th Cir. 2003)
(citing Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002)).
This is so even, where the relevant contract documents are attached as exhibits to
the motion to dismiss instead of to the pleadings. See Rosenblum, 299 F.3d at 661.
A court may also consider any documents of which it has taken judicial notice,
such as those in the public record. Stahl, 327 F.3d at 700.
The Defendants have requested that this court take judicial notice of the
various CBAs that the NFLPA attached to its supplementary filings. Although the
Players argue that I should treat the motions as motions for summary judgment
under Rule 56, Fed. R. Civ. P., this is a case where analysis of the CBAs is
necessary to decide whether a claim has been stated. I will take judicial notice of
the CBAS.2 Cf. Dent v. Nat’l Football League, No. C 14-02324 WHA, 2014 WL
7205048 at *2 (N.D. Cal. Dec. 17, 2014) (keeping motion as one to dismiss after
taking judicial notice of CBAs where agreed by the parties and where necessary to
rule on a Rule 12, Fed. R. Civ. P., motion).
Legal Standards
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a Rule 12(b)(6) motion, the court
2

Ballard, 4:14CV1267, ECF No. 38 Exs. 1–8; Smith, 4:14CV1559, ECF No. 45 Exs. 1–8.

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assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989). Matters of
public record referenced in a complaint may be considered by the court in
determining a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000).
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a
complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” In Bell Atlantic Corp. v. Twombly, the Supreme Court
clarified that Rule 8(a)(2) requires complaints to contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” 550
U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
Specifically, to survive a motion to dismiss, a complaint must contain enough
factual allegations, accepted as true, to state a claim for relief “that is plausible on
its face.” Twombly, 550 U.S. at 570. The factual allegations must be sufficient to
“‘raise a right to relief above the speculative level.’” Parkhurst v. Tabor, 569 F.3d
861, 865 (8th Cir. 2009) (quoting Twombly, 550 U.S. at 555). The issue in
determining a Rule 12(b)(6) motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Skinner v. Switzer, 562 U.S. 521, 529–530 (2011) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).

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Analysis
Fraudulent Concealment, Fraud, and Civil Conspiracy Claims
In the Order denying remand in the Smith case, Judge Webber already
determined that the Smith players’ state-law claims for fraudulent concealment,
fraud, and civil conspiracy were actually claims for breach of the duty of fair
representation under section 9(a) of the National Labor Relations Act and were
completely preempted. Smith, 2014 WL 6776306, at *6–10 & n.1. I find that
analysis to be correct, and adopt it here:
The duty of fair representation is the duty to act as the exclusive
bargaining agent in a fair manner. Int’l Bhd. of Elec. Workers v.
Foust, 442 U.S. 42, 46 (1979). This duty states “[a] union must
represent fairly the interests of all bargaining-unit members during the
negotiation, administration, and enforcement of collective-bargaining
agreements.” Id. at 47. The duty of fair representation “arises . . .
from the grant under section 9(a) of the NLRA . . . of the union’s
exclusive power to represent all employees in a particular bargaining
unit.” Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No.
6, 493 U.S. 67, 86–87 (1989). “‘The undoubted broad authority of the
union as exclusive bargaining agent in the negotiation and
administration of a collective bargaining contract is accompanied by a
responsibility of equal scope, the responsibility and duty of fair
representation.’” Id. at 88 (quoting Humphrey v. Moore, 375 U.S.
335, 342 (1964)). The NFLPA is bound by the duty of fair
representation.
“A breach of the duty of fair representation occurs only when a
union’s conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S.
171, 190 (1967). This rule does not apply only to union actions with

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regards to the collective bargaining agreement. It applies to all union
activity. Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67
(1991). If the NFLPA has acted towards members of the collective
bargaining agreement in bad faith, it has breached the duty of fair
representation.
The complaint clearly alleges Defendants acted towards
Plaintiffs, members of the collective bargaining unit at the time of the
conduct, in bad faith, by alleging Defendants undertook fraudulent
behavior against Plaintiffs. Any bad faith conduct by the union
against a member of the collective bargaining unit is a breach of the
duty of fair representation. The complaint does not state a claim on its
face for breach of such a duty, but it is clearly present. All claims
regarding bad faith by Defendants are claims of breach of the duty of
fair representation.
Smith, 2014 WL 6776306, at *4 (noting that unlike the preempted counts for
fraudulent concealment, fraud, and civil conspiracy, the remaining counts were for
“mere negligence, which is not a breach of the duty of fair representation”).
Players contend that their claims are independent of the duty of fair
representation because they are retirees. However, Players’ pleadings state that the
NFLPA has known “for decades” that multiple blows to the head can lead to longterm brain injury.3 They allege that they received those multiple head injuries
while represented by the NFLPA as active players.4 They also allege that the
Players relied on Defendants’ omissions and misrepresentations while they were

3

See Ballard 1st Am. Class Action Compl., ECF No. 6 ¶ 37; Smith 1st Am. Pet., ECF No. 4 ¶¶
118, 120.
4

See, e.g., Ballard 1st Am. Class Action Compl. ¶¶ 7, 11, 15, 20; Smith 1st. Am. Pet. ¶¶ 7, 27,
31, 60.

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actively playing NFL football.5 Thus, contrary to Players’ arguments, the
pleadings allege that the claims arose during the course of each Players’
employment. At those times, the NFLPA would have owed them the duty to fairly
represent their interests, see Vaca, 386 U.S. at 177, and so the Players’ claims are
not independent of that duty.
The Players next argue that “duty of fair representation” preemption under
sections 8(b) and 9(a) of the NLRA is mere “conflict” preemption – not complete
preemption – and thus dismissal is inappropriate. Although the Eighth Circuit has
not addressed the issue, I agree with Judge Webber’s conclusion that federal law
completely preempts state regulation of claims that assert a breach of duty of fair
representation. See Vaca, 386 U.S. at 177 (holding that federal law governs duty
of fair representation claim); see also Thomas v. Nat’l Ass’n of Letter Carriers, 225
F.3d 1149, 1158 (10th Cir. 2000) (affirming summary judgment based on
preemption and statute of limitations); Richardson v. United Steelworkers of Am.,
864 F.2d 1162, 1165–67 (5th Cir. 1989) (affirming finding that federal law
governed and subsequent dismissal under the NLRA’s six-month statute of
limitations).6

5

Ballard 1st Am. Class Action Compl. ¶¶ 121, 132; Smith 1st. Am. Pet. ¶¶ 155, 166.

6

The Players do not argue for the application of any of the exceptions to preemption set forth in
Farmer v. United Bhd. of Carpenters, 430 U.S. 290, 296–97 (1977).

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Negligence Claims
Defendants contend the duty of fair representation also completely preempts
the Players’ negligence, negligent misrepresentation, negligent hiring, and
negligent retention claims.7 The Supreme Court has held that these sorts of claims
do not state a claim for breach of duty of fair representation. See United
Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372–73 (1990)
(citation omitted). Those claims arising in negligence may be preempted
nonetheless under section 301 of the LMRA.
Section 301 of the LMRA provides: “Suits for violation of contracts between
an employer and a labor organization representing employees in an industry
affecting commerce . . . may be brought in any district court of the United States
having jurisdiction of the parties.” 29 U.S.C. § 185. The Supreme Court has held
that any state law claim based upon rights created by a CBA is preempted under
section 301. Trs. of Twin City Bricklayers Fringe Ben. Funds v. Superior
Waterproofing, Inc., 450 F.3d 324, 330 (8th Cir. 2006) (citing Teamsters v. Lucas
Flour Co., 369 U.S. 95, 102–103 (1962)). “[A]ny claim whose resolution is
substantially dependent upon or ‘inextricably intertwined’ with interpretation” of
the CBA terms is likewise preempted. Id. (quoting Allis-Chalmers Corp. v. Lueck,

7

I refer to all defendants here, although the negligent hiring and retention claims are directed
solely against the NFLPA.

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471 U.S. 202, 213, 220 (1985)). Unlike claims that require an interpretation of a
CBA, those that merely reference the CBA are not preempted. Contrast Lividas v.
Bradshaw, 512 U.S. 107, 124–125 (1994) (finding claim free from section 301
preemption because wage formula need only be referenced to calculate damages)
with Allis-Chalmers, 471 U.S. at 215–18 (finding common law fiduciary duty
claim preempted because it required interpretation of CBA’s contractual obligation
of good faith). See also Superior Waterproofing, 450 F.3d at 331 (providing
additional preemption examples). It is the defendant’s burden to establish section
301 preemption, as it is the party asserting federal preemption. See Williams v.
Nat’l Football League, 582 F.3d 863, 880 (8th Cir. 2009).
In any action for negligence, the plaintiff must establish that the defendant
had a duty to protect the plaintiff from injury, the defendant failed to perform that
duty, and the defendant’s failure proximately caused injury to the plaintiff. L.A.C.
ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo.
banc 2002). “Unique among the elements of negligence is duty because the
existence of a duty is a question of law.” Strickland v. Taco Bell Corp., 849
S.W.2d 127, 131 (Mo. Ct. App. 1993).
The Players contend that the Defendants owe a duty independent from the
duty of fair representation. They allege that the Defendants possessed superior
knowledge about the relationship between head impacts in football and brain

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injuries and a “unique vantage point,” obtained through the NFLPA’s participation
in the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan
and in the Mild Traumatic Brain Injury Committee, studies commissioned by the
NFLPA, and the NFLPA’s own medical consultants. Players contend that this
duty required Defendants to disclose their complete knowledge to Players.
Defendants argue that the Court must interpret the applicable CBAs in order
to determine whether the NFLPA owed Players a duty and whether Players’
reliance was justified. They cite to Article 39 of the 2011 CBA,8 which reflects the
NFL’s recognition “that the NFLPA Medical Director has a critical role in advising
the NFLPA on health and safety issues.” Id. at art. 39 § 1(d). Article 39 also
grants the NFLPA representation on the Accountability and Care Committee,
which is charged with providing “advice and guidance regarding the provision of
preventive, medical, surgical, and rehabilitative care for players by all clubs during
the term of this Agreement.” Id. at § 3. Defendants also cite to provisions in each
of the CBAs that establish a Joint Committee,9 which is composed of members of
both the NFL and NFLPA. The Joint Committee traditionally has been tasked with
examining subjects “related to professional football,”10 including “player safety

8

Ballard, 4:14CV1267, ECF No. 38-9; Smith, 4:14CV1559, ECF No. 45-9.

9

Ballard, 4:14CV1267, ECF No. 38 Exs. 1–8; Smith, 4:14CV1559, ECF No. 45 Exs. 1–8.

10

1970 CBA art. V.

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and welfare”11 and reviewing “all current materials on the player safety aspects of
player equipment . . . and other safety matters.”12 These CBAs also granted the
NFLPA the right to employ consultants to assist in these tasks.13
Negligent Misrepresentation
The Players allege that the Defendants, in the course of business and because
of a pecuniary interest, supplied false information regarding the risks of traumatic
head impacts. They allege these misrepresentations occurred before, during, and
after their playing years. Defendants note that the Smith players’ negligent
misrepresentation claim was already held to be preempted by section 301;14 they
argue that the same reasoning used by Judge Webber should apply to all the
Players’ claims.
Players allege that the NFLPA made public statements misrepresenting the
risks of head injuries incurred while playing professional football. Under the
common law, it is the employer that owes a duty to employees to exercise
reasonable care in providing a safe workspace. Int’l Bhd. of Elec. Workers, AFL-

11

1977 CBA art. XI; 1993 CBA art. XIII; 1993 CBA (1995 amend.) art. XIII; 1993 CBA (1998
amend.) art. XIII.
12

1982 CBA art. XI; 1993 CBA (1998 amend.) art. XIII; 2006 CBA art. XIII.

13

See, e.g., 1977 CBA art. XI § 3; 1982 CBA art. XI § 3; 1993 CBA art. XIII § 1(b); 2006 CBA
art. XIII; 2011 CBA art. 50 § 1(b).
14

See No. 4:14CV1559, 2014 WL 6776306 at *9 (E.D. Mo. Dec. 2, 2014), ECF No. 34 (J.
Webber).

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CIO v. Hechler, 481 U.S. 851, 859 (1987). The employer’s duty includes a duty
“to inform himself of those matters of scientific knowledge” that relate to the
hazards of his business and to relay that knowledge to his employees. Marsanick
v. Luechtefeld, 157 S.W.2d 537, 541 (Mo. Ct. App. 1942). The duty to provide
safe a workplace does not extend to the employee’s union, Hechler, 481 U.S. at
859, although the union may take on such a duty in a collective bargaining
agreement. Cf. Rawson, 495 U.S. at 373 (hypothesizing that unions might “assume
duties traditionally viewed as the prerogatives of management”) (citations
omitted).
The NFLPA had a CBA-mandated advisory role, which at times required it
to review current player safety materials. The extent to which the Players were
justified in relying on the NFLPA’s statements will necessarily depend upon an
interpretation of the various CBAs. The claim of negligent misrepresentation is
preempted by section 301 of the LMRA.
Negligence
The Players allege that the Defendants voluntarily studied and reported on
neurocognitive injuries in former professional football players, thereby incurring
the duty to exercise reasonable care when reporting their findings. They allege that
the Defendants breached that duty when they failed to publicize to the Players and
to the public at large “the mounting evidence in the scientific literature” linking

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football injuries to neuro-cognitive problems. This count differs from the
negligent misrepresentation claim in that it relies on omissions rather than
affirmative misrepresentations.
Nondisclosure constitutes a misrepresentation only where there exists the
duty to disclose the omitted information. Kesselring v. St. Louis Grp., Inc., 74
S.W.3d 809, 814 (Mo Ct. App. 2002). The duty to disclose arises either where
there is a relation of trust and confidence between the parties or where one party
has superior knowledge or information not within the fair and reasonable reach of
the other party. Andes v. Albano, 853 S.W.2d 936, 943 (Mo. banc 1993).
The Players contend that Defendants owed them a duty because Defendants
possessed superior knowledge that was unavailable to the Players. But, the
Players’ own pleadings establish that the link between concussions and footballrelated head trauma and CTE was published in numerous medical journals,
including the Journal of the American Medical Association, Neurology, The New
England Journal of Medicine, Lancet, and Neurosurgery among others.15 As such,
the second potential source of duty under Andes is foreclosed to the Players, and
they must rely on a relation of trust and confidence.

15

Smith 1st. Am. Pet., ¶¶ 95, 107–08, 110; Ballard 1st Am. Class Action Compl., ¶¶ 61, 73–74,
76.

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This brings the Players full-circle, for it is only through the CBA and the
Defendants’ status as Players’ union (or as executives thereof) that such a
relationship can exist. Indeed, any argument to the contrary is undermined by the
Players’ own pleadings. They alleged the NFLPA assured them that, “as duespaying members of the NFLPA,” it owed them a “fiduciary duty” and would act in
their best interests at all times and that the NFLPA incurred its duty, in part,
through its position on Retirement Board of the Bert Bell/Pete Rozelle NFL Player
Retirement Plan.16 The Retirement Board manages the Players’ retirement plan
and personal disability benefits. See, e.g., 1970 CBA art. 6 (requiring the
Retirement Board to develop medical standards to administrate disability benefits);
1977 CBA art. XXXI §§ 6, 8(d) (distinguishing disability benefits incurred from
general injury from one that “results from a football injury incurred while an active
player”); 2011 CBA art. LII (requiring that the benefit arbitrator apply procedures
adopted by the Retirement Board when adjudicating disagreements over disability
benefits). Any duty arising from the NFLPA’s status as part of the Retirement
Board or because of its fiduciary status will necessarily require an analysis of the
various CBAs, as will a determination of the extent to which Players were justified
in relying on the NFLPA’s statements and omissions. As such, section 301 of the
LMRA preempts the Players’ claim for negligence.
16

Smith 1st Am. Pet., ¶¶ 61–62, 69; Ballard 1st Am. Class Action Compl., ¶¶ 21–22, 36.

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Negligent Hiring and Negligent Retention
The Players allege that the NFLPA negligently hired and retained persons to
serve as its representatives on the Mild Traumatic Brain Injury Committee (the
“MTBI Committee”), which was created by the NFL to research and study
traumatic brain injuries affecting NFL players. They allege that the MTBI
Committee attacked or attempted to suppress studies that linked CTE to
concussions received by NFL players.17 The Players allege that by interjecting
themselves into the public discourse through the actions of the MTBI Committee,
the NFLPA violated duties owed to NFL players and retired players as well as to
the public at large. The Defendants argue that any duty owed to the Players must
have arisen from the various CBAs, and so the two claims are preempted under
section 301 of the LMRA.
The Players’ negligent hiring and retention claims could survive section 301
preemption if they were based on a duty owed to the public at large. Cf. Rawson,
495 U.S. at 371. If, however, the duty underlying the torts was assumed in a CBA,
then the claims are preempted. Id.
The pleadings allege that the MTBI Committee was formed by the NFL and
staffed, in part, by the NFLPA, in order to opine on the effect of concussions

17

Smith 1st Am. Pet., ¶¶ 93, 97–98, 105; Ballard 1st Am. Class Action Compl., ¶¶ 59, 63–64,
71.

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suffered by NFL players. Although the pleadings allege that the MTBI Committee
produced findings that were deceptive to the NFL players and the public at large,
they repeatedly state that the MTBI was focused on undermining studies relating to
NFL players’ response to concussions. The CBAs contain numerous sections
related to the creation by the NFLPA and NFL of a Joint Committee focused on the
NFL players’ safety and empowered to employ consultants. See, e.g., 1970 CBA
art. V §§ 1, 4–5; 1977 CBA art. XI; 1982 CBA art. XI; 1993 CBA art. XIII; 1993
CBA (1995 amend.) art. XIII; 1993 CBA (1998 amend.) art. XIII; 2006 CBA
art. XIII; 2011 CBA art. 50. The 2011 CBA also created a joint Accountability
and Care Committee tasked with providing advice and guidance regarding the
preventative, medical, surgical, and rehabilitative care for players, including the
development of an educational protocol to inform players of the primary risks
associated with playing professional football and treatment of common injuries.
2011 CBA art. 39 § 3. To the extent that the pleadings allege any duty by the
NFLPA to properly staff the MTBI Committee, that duty appears to be one derived
from the CBAs and not owed to the public at large. The Players’ negligent hiring
and retention claims will necessarily depend upon an analysis of these provisions
to determine whether the CBAs impose such a duty and whether they specify a
standard of care. As such, they are preempted by section 301. See Trs. of Twin

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City Bricklayers Fringe Ben. Funds v. Superior Waterproofing, Inc., 450 F.3d 324,
331 (8th Cir. 2006)
The Players’ claims are all either preempted or, in the case of their counts
for medical monitoring, derivative of preempted claims.18 Duty of fair
representation claims brought by a worker against a union are subject to a sixmonth statute of limitations. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.
151, 170–72 (1983) (applying section 10(b) of the NLRA). Section 301 of the
LMRA likewise imposes a six-month statute of limitations. Williams v. George P.
Reintjes Co., 361 F.3d 1073, 1074 (8th Cir. 2004).
The pleadings allege that the Defendants made misrepresentations and
omissions as recently as December 2010. They allege that by October 2011, the
MTBI Committee had been replaced with a new committee that began making
corrective statements regarding the validity of the MBTI Committees’ studies.
Defendants argue – and Players do not dispute – that any preempted claims are
time barred. Because I find that the Players’ claims are preempted and untimely, I
need not address the additional arguments raised by Defendants.
Accordingly,

18

Medical monitoring is merely a remedy, and so is derivative of other causes of action. See
also Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 716–17 (Mo. banc 2007) (referring to
medical monitoring as a form of damages); see also Ratliff v. Mentor Corp., 569 F. Supp. 2d 926
(W.D. Mo. 2008) (limiting availability of medical monitoring to toxic tort claims).

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IT IS HEREBY ORDERED that the NFLPA’s motions to dismiss
[Ballard # 21; Smith # 26] are granted.
IT IS FURTHER ORDERED that the motions to dismiss filed by
individual defendants Armstrong and Mawae [Ballard # 22; Smith # 27] are
granted.
Judgments in favor of the defendants are entered separately this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of August, 2015.

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