EASTERLING et al v. NATIONAL FOOTBALL LEAGUE, INC.

Filing 19

MOTION to Dismiss the Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by NATIONAL FOOTBALL LEAGUE, INC..Certificate of Service. (Attachments: # 1 Memorandum of Law, # 2 Text of Proposed Order, # 3 Declaration of Dennis L. Curran)(KARP, BRAD)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES RAY EASTERLING and his
wife, MARY ANN EASTERLING, et al.,

CIVIL ACTION
Case No. 11-CV-05209-AB

Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE,
INC.,
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF
THE NATIONAL FOOTBALL LEAGUE’S
MOTION TO DISMISS THE AMENDED COMPLAINT

Table of Contents
Page
Table of Authorities ............................................................................................................ ii 
Preliminary Statement......................................................................................................... 1 
Statement of Facts............................................................................................................... 5 
Argument .......................................................................................................................... 15 
I.

PLAINTIFFS’ CLAIMS ARE PREEMPTED BY SECTION 301 OF THE
LMRA ................................................................................................................... 15 
A. 

Plaintiffs’ Claims Are Substantially Dependent on an
Interpretation of the Terms of the CBAs ...................................................17 
1. 
2. 

B. 
II.

Plaintiffs’ Claims Require Interpretation of the CBAs................. 18 
The Case Law Compels Preemption of Plaintiffs’ Claims ........... 24 

Plaintiffs’ Claims Arise Under the CBA ...................................................27 

PLAINTIFFS FAIL TO STATE CLAIMS UPON WHICH RELIEF CAN
BE GRANTED ..................................................................................................... 31 
A. 

Plaintiffs Fail to State a Claim for Concealment .......................................31 

B. 

Plaintiffs Fail to State a Claim for Civil Conspiracy .................................35 

C. 

Plaintiffs Fail to State a Claim for Medical Monitoring ............................37 

Conclusion ........................................................................................................................ 41 

i

Table of Authorities
Page(s)
CASES
Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc.,
404 F.3d 566 (2d Cir. 2005) .................................................................................................... 32
Allegheny General Hosp. v. Philip Morris, Inc.,
228 F.3d 429 (3d Cir. 2000) .................................................................................................... 33
Allis-Chalmers Corp. v. Lueck,
471 U.S. 202 (1985)............................................................................. 15, 16, 18, 23, 27, 29, 30
Althaus ex rel. Althaus v. Cohen,
756 A.2d 1166 (Pa. 2000) ........................................................................................................ 17
Altman v. Fortune Brands, Inc.,
268 A.D.2d 231 (N.Y. App. Div. 2000) .................................................................................. 37
Angst v. Mack Trucks, Inc.,
969 F.2d 1530 (3d Cir. 1992) ............................................................................................ 16, 30
Antol v. Esposto,
100 F.3d 1111 (3d Cir. 1997) .................................................................................................. 15
Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009) .............................................................................................................. 33
Askey v. Occidental Chemical Corp.,
102 A.D.2d 130 (N.Y. App. Div. 1984) .................................................................................. 38
Atwater v. National Football League,
626 F.3d 1170 (11th Cir. 2010) ......................................................................................... 23, 26
Aubrey v. Sanders,
No. 07-CV-0137, 2008 WL 4443826 (W.D. Pa. Sept. 26, 2008)............................................ 18
In re Avandia Mktg., Sales Practices & Prods. Liab. Litig.,
No. 10-CV-2401, 2011 WL 4006639 (E.D. Pa. Sept. 7, 2011) ......................................... 39, 40
Barnes v. Am. Tobacco Co.,
161 F.3d 127 (3d Cir. 1998) .............................................................................................. 17, 39
Beidleman v. Stroh Brewery Co.,
182 F.3d 225 (3d Cir. 1999) .............................................................................................. 15, 18

ii

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)................................................................................................................. 40
Boone v. City of Philadelphia,
668 F. Supp. 2d 693 (E.D. Pa. 2009) ....................................................................................... 40
Bower v. Westinghouse Elec. Corp.,
522 S.E.2d 424 (W. Va. 1999)................................................................................................. 38
Brown v. National Football League,
219 F. Supp. 2d 372 (S.D.N.Y. 2002) ....................................................................... 5, 7, 17, 29
Buck v. Hampton Twp. Sch. Dist.,
452 F.3d 256 (3d Cir. 2006) ...................................................................................................... 5
Burns v. Jaquays Min. Corp.,
752 P.2d 28 (Ariz. Ct. App. 1987) ........................................................................................... 39
Capital Funding, VI, LP v. Chase Manhattan Bank USA, N.A.,
No. 01-CV-6093, 2003 WL 21672202 (E.D. Pa. Mar. 21, 2003) ........................................... 34
Caronia v. Philip Morris USA, Inc.,
No. 06-CV-224, 2011 WL 338425 (E.D.N.Y. Jan. 13, 2011) ............................... 17, 38, 39, 40
Christidis v. First Pa. Mortg. Trust,
717 F.2d 96 (3d Cir. 1983) ...................................................................................................... 32
Clarett v. National Football League,
369 F.3d 124 (2d Cir. 2004) ...................................................................................................... 7
Clarke v. City of New York,
82 A.D.3d 1143 (N.Y. App. Div 2011) ................................................................................... 30
Destefano & Assoc., Inc. v. Cohen,
No. 2775 June Term 2000, 2002 WL 1472340 (Pa. Com. Pl. Ct. May 23,
2002) ........................................................................................................................................ 35
Donini Int’l, S.p.A. v. Satec (U.S.A.) LLC,
No. 03-CV-9471, 2004 WL 1574645 (S.D.N.Y. July 13, 2004) ............................................. 36
Fagan v. AmerisourceBergen Corp.,
356 F. Supp. 2d 198 (E.D.N.Y. 2004) ..................................................................................... 33
Fanty v. Com. of Pa., Dept of Public Welfare,
551 F.2d 2 (3d Cir. 1977) ........................................................................................................ 41

iii

Fisher v. APP Pharms., LLC,
783 F. Supp. 2d 424 (S.D.N.Y. 2011) ..................................................................................... 33
Fox v. Marshall,
88 A.D.3d 131 (N.Y. App. Div. 2011) .................................................................................... 17
Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1 (1983)..................................................................................................................... 16
Gaines v. Krawczyk,
354 F. Supp. 2d 573 (W.D. Pa. 2004)...................................................................................... 32
Gerardi v. Nuclear Util. Servs., Inc.,
566 N.Y.S.2d 1002 (N.Y. Sup. Ct. 1991) ................................................................................ 38
Givens v. Tennessee Football, Inc.,
684 F. Supp. 2d 985 (M.D. Tenn. 2010)................................................ 3, 17, 22, 24, 25, 26, 30
Grose v. Procter & Gamble Paper Prods.,
866 A.2d 437 (Pa. Super. Ct. 2005) ................................................................................... 35, 36
Hampshire Equity Partners II, L.P. v. Teradyne, Inc.,
No. 04-CV-3318, 2005 WL 736217 (S.D.N.Y. Mar. 30, 2005) .............................................. 34
Hayes v. National Football League,
469 F. Supp. 252 (C.D. Cal. 1979) .......................................................................................... 30
Henderson v. Merck & Co., Inc.,
998 F. Supp. 532 (E.D. Pa. 1998) ............................................................................................ 16
Holmes v. National Football League,
939 F. Supp. 517 (N.D. Tex. 1996) ........................................................................................... 5
Houraney v. Burton & Assoc., P.C.,
701 F. Supp. 2d 258 (E.D.N.Y. 2010) ..................................................................................... 32
Hughes v. BCI Int’l Holdings, Inc.,
452 F. Supp. 2d 290 (S.D.N.Y. 2006) ..................................................................................... 17
Hurst v. Consol. Freightways Corp.,
No. 88-CV-0744, 1990 WL 43934 (M.D. Pa. Apr. 5, 1990) ................................................... 30
Int’l Bhd. of Elec. Workers, AFL-CIO v. Hechler,
481 U.S. 851 (1987)................................................................................................................. 18
Jeffers v. D’Allessandro,
681 S.E.2d 405 (N.C. Ct. App. 2009) ...................................................................... 3, 17, 24, 26

iv

Jones v. Utils. Painting Corp.,
198 A.D.2d 268 (N.Y. App. Div. 1993) .................................................................................. 39
Kline v. EDS Relocation & Assignment Servs.,
No. 08-CV-0980, 2008 WL 4822026 (M.D. Pa. Nov. 4, 2008) .............................................. 33
Kottler v. Deutsche Bank AG,
607 F. Supp. 2d 447 (S.D.N.Y. 2009) ..................................................................................... 35
Lefkowitz v. Bank of New York,
676 F. Supp. 2d 229 (S.D.N.Y. 2009) ..................................................................................... 33
Luden’s Inc. v. Local Union No. 6,
28 F.3d 347 (3d Cir. 1994) ...................................................................................................... 31
Majer v. Sonex Research, Inc.,
541 F. Supp. 2d 693 (E.D. Pa. 2008) ....................................................................................... 17
Manti’s Transp., Inc. v. C.T. Lines, Inc.,
68 A.D.3d 937 (N.Y. App. Div. 2009) .................................................................................... 18
McCracken v. Ford Motor Co.,
588 F. Supp. 2d 635 (E.D. Pa. 2008) ................................................................................. 33, 34
McDonough v. Toys ‘R’ Us, Inc.,
638 F. Supp. 2d 461 (E.D. Pa. 2009) ....................................................................................... 41
McKeeman v. Corestates Bank, N.A.,
751 A.2d 655 (Pa. Super. Ct. 2000) ......................................................................................... 37
Medtech Prods. Inc. v. Ranir, LLC,
596 F. Supp. 2d 778 (S.D.N.Y. 2008) ..................................................................................... 35
Musalli Factory For Gold & Jewellry v. JPMorgan Chase Bank, N.A.,
261 F.R.D. 13 (S.D.N.Y. 2009) ............................................................................................... 23
Nolde Bros. v. Local No. 358,
430 U.S. 243 (1977)................................................................................................................. 30
Operative Plasterers’ & Cement Masons’ Int’l Ass’n v. Metro. N.Y. Dry Wall
Contractors Ass’n, Inc.,
543 F. Supp. 301 (D.C.N.Y. 1982) .................................................................................... 36, 37
Remson v. Verizon Commc’ns, Inc.,
No. 07-CV-5296, 2009 WL 723872 (E.D.N.Y. Mar. 13, 2009).............................................. 38

v

In re Rockefeller Ctr. Props., Inc. Sec. Litig.,
311 F.3d 198 (3d Cir. 2002) .................................................................................................... 32
Rosenberg v. Avis Rent A Car Sys., Inc.,
No. 07-CV-1110, 2007 WL 2213642 (E.D. Pa. July 31, 2007) .............................................. 33
Santiago v. Warminster Twp.,
629 F.3d 121 (3d Cir. 2010) .............................................................................................. 34, 36
Sedona Corp. v. Ladenburg Thalmann & Co.,
No. 03-CV-3120, 2011 WL 4348138 (S.D.N.Y. Sept. 15, 2011) ........................................... 32
Sherwin v. Indianapolis Colts, Inc.,
752 F. Supp. 1172 (N.D.N.Y. 1990) ...................................................... 3, 17, 22, 24, 26, 29, 30
Sosna v. Iowa,
419 U.S. 393 (1975)................................................................................................................. 40
St. John v. Int’l Ass’n of Machinists and Aerospace Workers,
139 F.3d 1214 (8th Cir. 1998) ................................................................................................. 30
Stringer v. National Football League,
474 F. Supp. 2d 894 (S.D. Ohio 2007) .............................................................................passim
Summers v. Earth Island Inst.,
555 U.S. 488 (2009)................................................................................................................. 40
Taylor v. Mooney Aircraft Corp.,
265 Fed. Appx. 87 (3d Cir. 2008) ............................................................................................ 31
Thompson v. Ross,
No. 10-CV-479, 2010 WL 3896533 (W.D. Pa. Sept. 30, 2010)........................................ 35, 36
Tran v. Metro. Life Ins. Co.,
408 F.3d 130 (3d Cir. 2005) .................................................................................................... 23
Tuosto v. Philip Morris USA, Inc.,
672 F. Supp. 2d 350 (S.D.N.Y. 2009) ..................................................................................... 34
United Steelworkers of Am. v. Rawson,
495 U.S. 362 (1990)........................................................................................................... 15, 28
Walter v. Magee-Women’s Hospital of UPMC Health System,
876 A.2d 400 (Pa. Super. Ct. 2005), aff’d, 906 A.2d 1194 (2006).......................................... 39
Wegman v. Dairylea Co-op., Inc.,
50 A.D.2d 108 (N.Y. App. Div. 1975) .................................................................................... 36

vi

Williams v. National Football League,
582 F.3d 863 (8th Cir. 2009) ............................................................................................. 22, 26
Woods v. Maytag Co.,
No. 10-CV-0559, 2010 WL 4314313 (E.D.N.Y. Nov. 2, 2010) ............................................. 34
Zafarana v. Pfizer Inc.,
724 F. Supp. 2d 545 (E.D. Pa. 2010) ................................................................................. 36, 37
STATUTES AND RULES
29 U.S.C. § 185(a) ......................................................................................................................... 15
Fed. R. Civ. P. 9(b) ................................................................................................................... 31, 32
Fed. R. Civ. P. 12(b)(1) ............................................................................................................. 1, 40
Fed. R. Civ. P. 12(b)(6) ............................................................................................................... 1, 5
Fed. R. Civ. P. 23(a) ...................................................................................................................... 40
Fed. R. Civ. P. 23(c)(5).................................................................................................................. 40
OTHER AUTHORITIES
D. Scott Aberson, Note, A Fifty-State Survey of Medical Monitoring and the
Approach the Minnesota Supreme Court Should Take When Confronted With
The Issue, 32 WM. MITCHELL. L. REV. 1096 (2006) ............................................................... 37
16 AM. JUR. 2D Conspiracy § 64 (2011) ........................................................................................ 37
37 AM. JUR. 2D Fraud and Deceit § 202 (2011) ............................................................................ 34
15A C.J.S. Conspiracy § 9 (2011) ................................................................................................. 35
15A C.J.S. Conspiracy § 15 (2011) ............................................................................................... 36
37 C.J.S. Fraud § 29 (2011) .......................................................................................................... 32

vii

Defendant National Football League (the “NFL”), by its attorneys Paul,
Weiss, Rifkind, Wharton & Garrison LLP and Duane Morris LLP, respectfully submits
this memorandum of law in support of its motion to dismiss the amended complaint
(“Amended Complaint”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).
Preliminary Statement
This action—contending that the NFL breached its duty to regulate the
sport of professional football to minimize the risk of concussions to NFL players—is
fundamentally a labor dispute that depends upon an interpretation of the terms of
collective bargaining agreements and thus is completely preempted under section 301 of
the Labor Management Relations Act (the “LMRA”).
Plaintiffs are seven former players who played in the NFL during various
periods from 1970-2010. Each plaintiff played NFL football pursuant to the terms of a
collective bargaining agreement and the accompanying NFL Constitution and Bylaws
(together, the “CBAs”).

Although the CBAs evolved over time, each is a labor

agreement that painstakingly details and comprehensively governs the relationship
between the NFL, its Member Clubs, and its players. Among numerous other provisions,
the CBAs (i) address the promulgation and review of rules and regulations, including
those relating to player safety; (ii) delegate to the NFL’s Member Clubs and their medical
staff the responsibility for treating player injuries, including making “return-to-play”
decisions; (iii) establish a joint committee whose sole function is to address issues, and
make recommendations, concerning player safety and welfare; (iv) provide for a player’s
right to compensation and other benefits in the event of injury; and (v) set forth the

dispute resolution procedures to be followed in the event of a dispute involving any
provision of the CBAs.
The CBAs—like all collective bargaining agreements affecting interstate
commerce—are governed by section 301 of the LMRA. Section 301 is intended to
ensure that labor disputes are resolved under a uniform body of federal labor law and
adjudicated in accordance with the grievance procedures set forth in collective bargaining
agreements. Thus, section 301 completely preempts state law claims—including tort
claims—that are substantially dependent upon or inextricably intertwined with the terms
of, or arise under, a collective bargaining agreement.
That is the case here. Plaintiffs’ grievance—dressed up as tort claims for
negligence, “concealment,” civil conspiracy, medical monitoring, and loss of
consortium—hinges on allegations that the NFL had a duty to “regulate” and “monitor”
the sport of professional football and to provide “reasonable and appropriate rules” to
reduce the risk of concussions to players, yet purportedly failed to warn players of the
risks of repeated concussions, did not “promulgate rules and regulations” to address
adequately the risks of concussions and return to play, and concealed certain facts
relating to concussions.

At bottom, plaintiffs accuse the NFL of failing to act

“reasonably.”
Adjudication

of

plaintiffs’

claims

substantially

depends

on

an

interpretation of the many CBA provisions addressing player health and safety. For
example, the Court will be required to ascertain what duties, if any, the NFL owed to
plaintiffs and the scope of those duties, in order to evaluate whether the NFL acted
“reasonably.”

Because the CBAs allocate responsibility for treating player injuries

2

generally—and making “return-to-play” decisions specifically—to Member Clubs and
their physicians, a court cannot make such an assessment in a vacuum; it must first
consider the scope of pre-existing duties delegated to the Clubs and their physicians
under the CBAs. Indeed, numerous courts have so held in determining that near-identical
claims against the NFL and its Clubs by former NFL players seeking to impute to others
duties expressly prescribed in the CBAs are preempted under section 301. See, e.g.,
Givens v. Tennessee Football, Inc., 684 F. Supp. 2d 985, 990-91 (M.D. Tenn. 2010);
Stringer v. National Football League, 474 F. Supp. 2d 894, 909-11 (S.D. Ohio 2007);
Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172, 1177-79 (N.D.N.Y. 1990); Jeffers
v. D’Allessandro, 681 S.E.2d 405, 412 (N.C. Ct. App. 2009). The result here should be
no different.
Plaintiffs’ claims are also preempted because they rest on purported
obligations that arise under the CBAs. The crux of the Amended Complaint is that the
NFL failed to implement adequate rules and regulations regarding player health and
safety, and failed adequately to enforce those safety-related rules that it did promulgate.
The CBAs, however, expressly delineate the obligations of the NFL with respect to both
the promulgation and enforcement of health and safety-related rules for NFL players.
But even if all of plaintiffs’ claims were not preempted, plaintiffs’ claims
for “concealment,” civil conspiracy, and medical monitoring cannot survive because they
are deficiently pleaded.
First, plaintiffs fail to allege, let alone with the requisite specificity, the
essential elements of concealment, whether fraudulent or negligent. (Indeed, plaintiffs
fail even to allege adequately which claim they purport to plead.)

3

Plaintiffs’ sole

allegation concerning the supposed concealment is the assertion that the NFL concealed
the “connection” between “concussions” and “brain injury” and contains no detail as to
what specifically was concealed, by whom it was concealed, when it was concealed, or
how the concealment caused plaintiffs’ purported injuries. And as for the many other
required elements of the claim—materiality, intent, and justifiable reliance—plaintiffs
simply do not even try to allege them.
Second, plaintiffs’ claim for civil conspiracy lacks the central element of
the claim: that two or more people agreed to commit an unlawful act. In support of their
conclusory claim—of a purported conspiracy occurring at some unspecified time during
four decades and involving an infinite number of unnamed conspirators—plaintiffs offer
no factual allegations demonstrating an agreement in furtherance of an unlawful act
between the NFL and any other individual or entity.
Finally, plaintiffs’ medical monitoring claim—alleged on behalf of a
putative class of former and current NFL players (notwithstanding that courts routinely
reject attempts to certify medical monitoring claims given, as here, the individual issues
that pervade such a claim)—also rests solely on boilerplate and does not contain a single
supporting allegation. Nor could it. Medical monitoring claims must be premised on
exposure to “proven hazardous substances” that invade the body; “a greater risk of
concussions”—the supposed “substance” alleged by plaintiffs here—is no such thing.
Moreover, plaintiffs—all former NFL players—have no standing to assert medical
monitoring claims on behalf of the alleged subclass of current NFL players.
In sum, the Amended Complaint—a workplace grievance improperly (and
insufficiently) pleaded in tort—should be dismissed with prejudice.

4

Statement of Facts1
The NFL is an unincorporated association of 32 Member Clubs and has its
principal place of business in New York. (See Am. Compl. ¶ 30.) The NFL promotes,
organizes, and regulates the sport of professional football in the United States. Stringer,
474 F. Supp. 2d at 898.
Plaintiffs are seven former professional football players—Charles Ray
Easterling, Wayne Radloff, James McMahon, Gerald Feehery, Joseph E. Thomas,
Michael Thomas Furrey, and Steve Kiner—who played in the NFL during various
periods from 1970 through 2010, and the spouses of four of them. (Am. Compl. ¶¶ 2329.)

1

This summary is based on the allegations of the Amended Complaint—the factual
averments of which the NFL denies but assumes to be true for purposes of this
motion only—and, where applicable, public records and documents integral to
plaintiffs’ claims, including the CBAs. This Court may consider the CBAs in
adjudicating this motion under Rule 12(b)(6) because the CBAs are integral to
plaintiffs’ claims and certain CBAs are publicly available. See Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to dismiss,
we may consider . . . any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, [and] items
appearing in the record of the case.”); Brown v. National Football League, 219 F.
Supp. 2d 372, 376, 386-87 (S.D.N.Y. 2002) (considering CBA provisions in order to
adjudicate NFL’s motion to dismiss); Holmes v. National Football League, 939 F.
Supp. 517, 520 n.2 (N.D. Tex. 1996) (same); cf. Stringer, 474 F. Supp. 2d at 902
(considering CBA provisions and converting the NFL’s motion to dismiss into a
summary judgment motion). The NFL has publicly posted certain CBAs on its
website
at
the
following
address:
http://static.nfl.com/static/content/public/image/cba/nfl-cba-2006-2012.pdf.

5

The NFL Collective Bargaining Agreements
The relationship between the NFL and plaintiffs is defined by the various
CBAs that were operative during each of plaintiffs’ careers.2 The CBAs are the product
of exhaustive arm’s-length negotiations between the NFLMC, the exclusive bargaining
representative of the NFL, and the NFLPA, the exclusive bargaining representative of
NFL players. As “the union for professional football players,” the NFLPA “[r]epresents
all players in matters concerning . . . working conditions and protects their rights as
professional football players.” (www.nflplayers.com/about-us.) The CBAs negotiated
by the NFLPA and the NFLMC, along with the NFL Constitution and Bylaws to which
the NFLPA agreed to be bound, thus “represent[] the complete understanding of the
parties on all subjects covered [t]herein” and are binding on the NFL and on all players

2

Mr. Easterling played in the NFL “during the mid-1970s and into the early 1980s,”
pursuant to the terms of the 1970 Collective Bargaining Agreement between the NFL
Management Council (“NFLMC”) and the NFL Players Association (“NFLPA”),
effective from February 1, 1970 to January 31, 1974 (“1970 CBA”), the 1977
Collective Bargaining Agreement between the NFLMC and the NFLPA, effective
from February 1, 1974 to July 15, 1982 (“1977 CBA”), and possibly the 1982
Collective Bargaining Agreement between the NFLMC and the NFLPA, effective
from July 16, 1982 to August 31, 1987 (“1982 CBA”). (Am. Compl. ¶ 23.) Mr.
Radloff played in the NFL from “approximately 1985 through part of 1991,” pursuant
to the terms of the 1982 CBA. (Id. ¶ 24.) Mr. McMahon played in the NFL from
1982 through 1996, pursuant to the terms of the 1982 CBA and the 1993 Collective
Bargaining Agreement between the NFLMC and the NFLPA (as amended June 6,
1996, February 25, 1998, December 4, 2000, and January 8, 2002), effective from
March 29, 1993 to March 7, 2006 (“1993 CBA”). (Id. ¶ 25.) Mr. Feehery played in
the NFL from 1983 through 1990, pursuant to the terms of the 1982 CBA. (Id. ¶ 26.)
Mr. Thomas played in the NFL from 2007 through 2010, pursuant to the terms of the
2006 Collective Bargaining Agreement between the NFLMC and the NFLPA,
effective March 8, 2006 to March 1, 2011 (“2006 CBA”). (Id. ¶ 27.) Mr. Furrey
played in the NFL from “approximately 2003 through 2010,” pursuant to the terms of
the 1993 and 2006 CBAs. (Id. ¶ 28.) Mr. Kiner played in the NFL from 1970
through 1978, pursuant to the terms of the 1970 and 1977 CBAs. (Id. ¶ 29.)

6

and their heirs, executors, administrators, and representatives.3 (See Ex. 4,4 1977 CBA
Preamble and Art. II § 1; Ex. 5, 1982 CBA Preamble and Art. II § 1; Ex. 6, 1993 CBA
Preamble, Art. III § 1, and Art. LV § 14; Ex. 10, 2006 CBA Preamble, Art. III § 1, and
Art. LV § 14; see also Ex. 3, 1970 CBA Preamble and Art. II § 4.)5
The CBAs cover a broad range of subjects affecting the terms and
conditions of employment for NFL players, including NFL player contracts and salary
provisions, NFL draft rules, and player discipline. (Ex. 3, 1970 CBA Art. II § 2; Ex. 4,
1977 CBA Art. II § 2; Ex. 5, 1982 CBA Art. I § 1; Ex. 6, 1993 CBA Art. II § 1; Ex. 10,
2006 CBA Art. II § 1.) Although the CBAs have changed over time pursuant to the
collective bargaining process, every CBA expressly addresses player health and safety
and provides grievance procedures for the resolution of disputes under the CBAs.
Player Medical Care Provisions
The CBAs delegate to the NFL’s Member Clubs and their medical staff
the responsibility for treating player injuries generally. For example, certain CBAs
3

See Clarett v. National Football League, 369 F.3d 124 (2d Cir. 2004) (“In the
collective bargaining agreement, the union agreed to waive any challenge to the
Constitution and Bylaws and thereby acquiesced in the continuing operation of the
. . . rules contained therein.”); see also Brown, 219 F. Supp. 2d at 386 (“[The NFL
Constitution and Bylaws were] bargained over and included within the scope of the
CBA.”).

4

All exhibits cited in this memorandum are attached to the accompanying Declaration
of Dennis L. Curran, dated November 8, 2011.

5

The NFL has operated continuously under a CBA since 1968, except between 19871993, when no CBA was in place. (See Ex. 5, 1982 CBA Art. XXXVIII § 2 (1982
CBA may be terminated by either party on August 31, 1987); Ex. 6, 1993 CBA Art.
LVIII § 1 (1993 CBA becomes effective March 29, 1993).) As discussed in note 2,
supra, all plaintiffs played professional football pursuant to various CBAs, and this
gap is therefore irrelevant.

7

delegate to Club physicians the responsibility for making “return to play” decisions and
advising players of the risk of continued performance, and set forth the qualifications for
Club medical staff. Thus, the CBAs provide:


“Each Club will have a board-certified orthopedic surgeon as one of its
Club physicians. The cost of medical services rendered by Club
physicians will be the responsibility of the respective Clubs.” (Ex. 5, 1982
CBA Art. XXXI § 1; Ex. 6, 1993 CBA Art. XLIV § 1; Ex. 10, 2006 CBA
Art. XLIV § 1.)



“All full-time head trainers and assistant trainers . . . will be certified by
the National Athletic Trainers Association. All part-time trainers must
work under the direct supervision of a certified trainer.” (Ex. 5, 1982
CBA Art. XXXI § 2; Ex. 6, 1993 CBA Art. XLIV § 2; Ex. 10, 2006 CBA
Art. XLIV § 2.)



“The home team shall provide a physician and an ambulance at each game
available to both teams. Said ambulance facilities shall be located at or
adjacent to the stadium, with the driver in attendance in the ambulance for
the use of both competing teams.” (See, e.g., Ex. 11, 1969 NFL and
American Football League Constitution and Bylaws Art. XIX § 19.5.)



“If a Club physician advises a coach or other Club representative of a
player’s physical condition which adversely affects the player’s
performance or health, the physician will also advise the player. If such
condition could be significantly aggravated by continued performance, the
physician will advise the player of such fact in writing before the player is
again allowed to perform on-field activity.” (Ex. 6, 1993 CBA Art. XLIV
§ 1; Ex. 10, 2006 CBA Art. XLIV § 1; see also Ex. 5, 1982 CBA Art.
XXXI § 1.)



“All determinations of recovery time for major and minor injuries must be
by the Club’s medical staff and in accordance with the Club’s medical
standards . . . . The prognosis of the player’s recovery time should be as
precise as possible.” (See, e.g., Ex. 20, 1980 Supp. to NFL Constitution
and Bylaws Art. XVII.)



“[I]f Player is injured in the performance of his services under this
contract and promptly reports such injury to the Club physician or trainer,
then Player will receive such medical and hospital care during the term of
this contract as the Club physician may deem necessary . . . .” (Ex. 6,
1993 CBA Appx. C § 9; Ex. 10, 2006 CBA Appx. C § 9.)

8

Certain CBAs also set forth player rights and obligations related to
medical care. For example, the CBAs provide that players have the right to investigate
the adequacy of medical care provided by a Club physician and to obtain a second
medical opinion. Thus, the CBAs provide:


“The NFLPA shall have the right to commence an investigation before the
Joint Committee [on Player Safety and Welfare] if the NFLPA believes
that the medical care of a team is not adequately taking care of player
safety.” (Ex. 9, 2002 Am. to 1993 CBA Art. XIII § 1(d); Ex. 10, 2006
CBA Art. XIII § 1(d).)



“A player will have the opportunity to obtain a second medical opinion,”
and the Club shall bear “the responsibility” for “the cost of [these] medical
services.” (Ex. 5, 1982 CBA Art. XXXI § 3; Ex. 6, 1993 CBA Art. XLIV
§ 3; Ex. 10, 2006 CBA Art. XLIV § 3.)



“A player will have the right to choose the surgeon who will perform
surgery . . . . Any such surgery will be at Club expense.” (Ex. 5, 1982
CBA Art. XXXI § 4; Ex. 6, 1993 CBA Art. XLIV § 4; Ex. 10, 2006 CBA
Art. XLIV § 4.)



“Each player will undergo a standardized minimum pre-season physical
examination . . . which will be conducted by the Club physician,” and will
further undergo a “post-season physical examination” at the player or
Club’s request. (Ex. 5, 1982 CBA Art. XXXI § 5; see also Ex. 6, 1993
CBA Art. XLIV § 5; Ex. 10, 2006 CBA Art. XLIV § 5.)
Player Safety Provisions
The CBAs also delineate the manner in which rules, including rules

concerning player safety, are promulgated and enforced. For example, all rule changes
must be presented to the NFL or approved by a standing committee of the NFL vested
with the authority to recommend playing rule changes, and the Clubs, the NFLPA, and
the NFL all are charged with the responsibility for reviewing player safety aspects of
playing rules. Thus, the CBAs provide:


“Playing rules may be amended or changed at any Annual Meeting by the
affirmative vote of not less than three-fourths or 21, whichever is greater,

9

of the members of the League, provided the proposed amendment or
change has been presented to the League in writing fifteen (15) days prior
to the Annual Meeting or a recessed session thereof, or provided the
proposed amendment or change carries the unanimous approval of a duly
appointed standing committee of the League vested with the authority to
make a recommendation on proposed playing rules changes, in which case
notice of at least 12 hours prior to the vote is required; and further
provided that all playing rules proposals from clubs must be submitted in
writing to the League office a minimum of thirty (30) days in advance of
any Annual Meeting of the League. Otherwise unanimous consent is
required for any amendment to the Playing Rules.” (See, e.g., Ex. 24,
1984 NFL Constitution and Bylaws Art. XI § 11.2.)


“A Joint Committee on Player Safety and Welfare (hereinafter the ‘Joint
Committee’) will be established for the purpose of discussing the player
safety and welfare aspects of playing equipment, playing surfaces, stadium
facilities, playing rules, player-coach relationships, and any other relevant
subjects.” (Ex. 5, 1982 CBA Art. XI; Ex. 6, 1993 CBA Art. XIII § 1(a);
Ex. 10, 2006 CBA Art. XIII § 1(a); see also Ex. 3, 1970 CBA Art. V; Ex.
4, 1977 CBA Art. XI.)



“If the NFLPA believes that the adoption of a playing rule change would
adversely affect player safety,” it may seek to investigate and “request an
advisory decision by [an] arbitrator[]” regarding the proposed rule change.
(Ex. 5, 1982 CBA Art. XI § 9; Ex. 6, 1993 CBA Art. XIII § 1(c); Ex. 10,
2006 CBA Art. XIII § 1(c).)



“If . . . the Commissioner determines that the adoption of the playing rule
change could adversely affect player safety, the Commissioner will refer
the proposed playing rule change to [the Joint] Committee for
consideration and recommendation.” (Ex. 4, 1977 CBA Art. XI § 8.)
Player Benefits
The CBAs include numerous provisions regarding players’ rights to

compensation and benefits in the event of injuries, including the right to workers’
compensation, supplemental disability benefits, and termination pay. See, e.g., Ex. 3,
1970 CBA Art. XI; Ex. 4, 1977 CBA Art. IX; Ex. 5, 1982 CBA Art. IX; Ex. 6, 1993
CBA Art. X; Ex. 10, 2006 CBA Art. X (Injury Grievance); Ex. 3, 1970 CBA Art. IV
§ 12; Ex. 4, 1977 CBA Art. XXXII; Ex. 5, 1982 CBA Art. XXXV; Ex. 6, 1993 CBA Art.

10

XXIII; Ex. 10, 2006 CBA Art. XXIII (Termination Pay); Ex. 3, 1970 CBA Art. XV § 7;
Ex. 4, 1977 CBA Art. XXXIII; Ex. 5, 1982 CBA Art. XXXVI; Ex. 6, 1993 CBA Art.
LIV; Ex. 10, 2006 CBA Art. LIV (Workers’ Compensation); Ex. 5, 1982 CBA Art.
XXIV; Ex. 6, 1993 CBA Art. L; Ex. 10, 2006 CBA Art. L (Severance Pay); Ex. 6, 1993
CBA Art. LI; Ex. 10, 2006 CBA Art. LI (Supplemental Disability Benefits); Ex. 6, 1993
CBA Art. LII; Ex. 10, 2006 CBA Art. LII (Benefits Arbitrator); Ex. 10, 2006 CBA Art.
XLVIII-D (88 Benefit); Ex. 4, 1977 CBA Art. X; Ex. 5, 1982 CBA Art. X; Ex. 6, 1993
CBA Art. XII § 1; Ex. 10, 2006 CBA Art. XII § 1 (Injury Protection Benefit). For
example:


“The parties agree to . . . establish a . . . plan . . . to provide medical
benefits to former Players who are . . . determined . . . to have dementia.”
(Ex. 10, 2006 CBA Art. XLVIII-D.)



“[A] player . . . will receive an injury protection benefit [when t]he player
[has] been physically unable, because of a severe football injury in an
NFL game or practice, to participate in all or part of his Club’s last game
of the season of injury, as certified by the Club physician . . . or the player
[has] undergone Club-authorized surgery in the off-season following the
season of injury; and . . . [t]he player [has] undergone whatever reasonable
and customary rehabilitation treatment his Club required of him during the
off-season following the season of injury; and . . . [t]he player [has] failed
the pre-season physical examination given by the Club physician for the
season following the season of injury because of such injury and as a
result his Club must have terminated his contract for the season following
the season of injury. A player who qualifies . . . cannot be waived prior to
such pre-season physician examination.” (Ex. 4, 1977 CBA Art. X; Ex. 5,
1982 CBA Art. X; see also Ex. 6, 1993 CBA Art. XII § 1; Ex. 10, 2006
CBA Art. XII § 1.)
Grievance Procedures
Finally, all CBAs provide for an exclusive dispute resolution procedure to

address disputes arising under the CBAs. Since 1977, all CBAs have contained a broad
arbitration provision that encompasses disputes arising not only from the CBAs

11

themselves, but also from an NFL Player Contract or any provision of the NFL
Constitution and Bylaws that relates to the terms and conditions of NFL players’
employment:


“Any dispute (hereinafter referred to as a ‘grievance’) arising after the
execution of this Agreement and involving the interpretation of,
application of, or compliance with, any provision of this Agreement, the
NFL Player Contract, or any applicable provision of the NFL Constitution
and Bylaws pertaining to terms and conditions of employment of NFL
players, will be resolved exclusively in accordance with the [arbitration]
procedure set forth in this Article except wherever another method of
dispute resolution is set forth elsewhere in this Agreement, and except
wherever the Settlement Agreement provides that the Special Master,
Impartial Arbitrator, the Federal District Court or the Accountants shall
resolve a dispute.” (Ex. 6, 1993 CBA Art. IX § 1; Ex. 10, 2006 CBA Art.
IX § 1; see also Ex. 4, 1977 CBA Art. VII § 1; Ex. 5, 1982 CBA Art. VII
§ 1.)

From 1970 to 1977, the CBA contained a similar dispute resolution procedure that
required the NFL Commissioner to resolve all grievances arising under the CBA. (Ex. 3,
1970 CBA Art. X.)
In addition to this broad arbitration provision, the CBAs expressly forbid
players from bringing “any suit[] against the NFL or any Club with respect to any claim
relating to any aspect of the NFL rules” or “the NFL Constitution and Bylaws.” (Ex. 4,
1977 CBA Art. III § 2; Ex. 5, 1982 CBA Art. III § 2; Ex. 6, 1993 CBA Art. IV § 2; Ex.
10, 2006 CBA Art. IV § 2.)
The Amended Complaint
Notwithstanding that the NFLPA, on behalf of all NFL players, agreed to
CBAs that expressly address issues relating to player health and safety and require that all
disputes arising under the CBAs be resolved through grievance procedures, plaintiffs
filed this action asserting claims for negligence, concealment, civil conspiracy, medical

12

monitoring, and loss of consortium, and seeking, among other relief, compensatory
damages for purported concussion-related injuries sustained during their NFL football
careers. (Am. Compl. ¶¶ 36-63.)
The Amended Complaint alleges that the NFL “assumed a duty . . . to
supervise, regulate, monitor and provide reasonable and appropriate rules to minimize the
risk of injury to the players.” (Id. ¶ 45.) Plaintiffs allege that the NFL breached this duty
by:


“Failing to warn of the risk of unreasonable harm resulting from repeated
concussions” (id. ¶ 47(a));



“Failing to disclose the special risks of long term complications from
repeated concussions and return to play” (id. ¶ 47(b));



“Failing to disclose the role that repeated concussions has [sic] in causing
chronic life-long cognitive decline” (id. ¶ 47(c));



“Failing to promulgate rules and regulations to adequately address the
dangers of repeated concussions and a return to play policy to minimize
long-term chronic cognitive problems” (id. ¶ 47(d); see also id. ¶¶ 10,
35(b));



“Misrepresenting pertinent facts that players needed to be aware of to
make determinations of the safety of return to play” (id. ¶ 47(e));



“Concealing pertinent facts” (id. ¶ 47(f));



“Failing to adopt rules and reasonably enforce those rules to minimize the
risk of players suffering debilitating concussions” (id. ¶ 47(g)); and



“[F]ail[ing] to properly, reasonably and safely monitor, test or otherwise
study whether and when a player has suffered a concussion or subconcussion” (id. ¶ 61).

Based on those alleged acts, the Amended Complaint asserts that the NFL “failed to act
reasonably,” thereby “caus[ing] or increas[ing] the risk that the plaintiffs . . . would suffer
repeated concussions and long-term injury.” (Id. ¶¶ 10, 17; see also id. ¶¶ 16, 18, 50-57.)

13

Specifically, the Amended Complaint challenges the NFL’s rulemaking
with regard to injury prevention. According to the Amended Complaint, in 1979, the
NFL “promulgated a rule [penalizing] players who are found to have used their helmets
to butt, spear or ram an opponent with the crown or top of the helmet”; in 1989, the NFL
“provide[d] referees with the authority to eject a player who is observed using his helmet
in this fashion”; in 1996, the NFL “ma[de] it a personal foul with potential associated
fines to hit with the helmet”; and the NFL adopted the “NOCSAE” standard for football
helmets “to improve upon the safety of helmets and minimize the risk of head injury.”
(Id. ¶¶ 3, 5-7.) Plaintiffs assert that the NFL did not “insist on the strict enforcement” of
these rules in order to “keep[] its fan base excited over the visual excitement generated
by” helmet tackles. (Id. ¶¶ 6-7.)
Plaintiffs also contend that “[f]or more than 35 years,” the NFL “denied
that it knew [of]” and “actively concealed” any connection “between . . . concussions, the
NFL policies regarding tackling methodology or . . . return to play and long-term . . .
problems.” (Id. ¶¶ 2, 15; see also id. ¶¶ 8-9, 14, 16-18.) Plaintiffs further claim that
although the NFL “commissioned” “scientific” “studies” “to assess the health and wellbeing of retired players,” the NFL—as part of its alleged concealment—“disputed the
results” of one of these studies. (Id. ¶¶ 8, 11.)
Finally, plaintiffs conclusorily maintain—absent any supporting factual
allegations—that the NFL “conspired with its team members and/or independent
contractors” to dispute the connection between concussions and long-term injuries, that
the plaintiff spouses “seek to recover for the . . . loss of consortium” suffered as a result
of their husbands’ injuries, and that—because of their purported increased “exposure” to

14

concussions—plaintiffs, and a putative class that purports to include “current players”
even though all of the named plaintiffs are former players, “require specialized testing . . .
for the detection of the long-term effects” of such injuries. (Id. ¶¶ 41, 53, 60-63.)
*

*

*

For the reasons set forth below, plaintiffs’ claims are preempted by section
301 of the LMRA. Plaintiffs further fail adequately to plead claims for concealment,
civil conspiracy, and medical monitoring. Accordingly, the Amended Complaint should
be dismissed.
Argument
I.
PLAINTIFFS’ CLAIMS ARE PREEMPTED BY SECTION 301 OF THE LMRA
It is well settled that section 301 of the LMRA completely preempts all
state law claims—including tort claims—that are substantially dependent on an
interpretation of the terms of, or arise under, a collective bargaining agreement. 29
U.S.C. § 185(a) (codifying section 301); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
213, 220 (1985) (claims that are “substantially dependent upon analysis of the terms of [a
collective bargaining] agreement,” and “state-law rights and obligations that do not exist
independently of [collective bargaining] agreements,” are preempted); see also United
Steelworkers of Am. v. Rawson, 495 U.S. 362, 368 (1990) (“only the federal law
fashioned by the courts under § 301 governs the interpretation and application of
collective-bargaining agreements”); Beidleman v. Stroh Brewery Co., 182 F.3d 225, 23132 (3d Cir. 1999) (same); Antol v. Esposto, 100 F.3d 1111, 1115, 1117 (3d Cir. 1997)
(same).

15

The “preemptive force of § 301 is so powerful” because Congress
intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23 (1983);
Beidleman, 182 F.3d at 234 (“[T]he underlying reason for section 301 preemption [is]
‘the need for uniform interpretation of contract terms to aid both the negotiation and the
administration of collective bargaining agreements’” (quoting Antol, 100 F.3d at 1115));
Henderson v. Merck & Co., Inc., 998 F. Supp. 532, 536 (E.D. Pa. 1998) (“[Q]uestions
relating to what the parties to a labor agreement agreed, and what legal consequences
were intended to flow from branches of that agreement, must be resolved by reference to
uniform federal law”). Moreover, “a central tenet of federal labor-contract law under
§ 301 [is] that it is the arbitrator, not the court, who has the responsibility to interpret the
labor contract in the first instance.” Allis-Chalmers, 471 U.S. at 220. Section 301
preemption thus “preserves the central role of arbitration in our system of industrial selfgovernment” and assures that, in the context (as here) of collective bargaining
agreements with arbitration or other grievance provisions, an arbitrator—not a court—
will resolve the dispute. Id. at 219 (unless courts apply section 301 preemption broadly,
“the arbitrator’s role . . . could be bypassed easily”) (internal quotations and citations
omitted); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1537-58 (3d Cir. 1992) (same).
Plaintiffs’ claims here are completely preempted by section 301 because,
among other reasons, those claims are substantially dependent upon an interpretation of
numerous provisions in the applicable CBAs. Indeed, a federal court, in Stringer v.
National Football League, considered a claim against the NFL nearly identical to this—
premised on the NFL’s alleged failure “to minimize the risk of heat-related illness,” and

16

“establish regulations” to ensure “adequate care and monitoring of players suffering from
heat-related illness”—and, like numerous other courts considering state law tort claims
against the NFL or its Member Clubs by NFL players relating to health and safety
provisions, held that plaintiff’s claim was completely preempted by section 301. 474 F.
Supp. 2d at 903, 909-11; see also Givens, 684 F. Supp. 2d at 990-91 (negligent infliction
of injury, outrageous conduct, and bad faith performance of contract claims against
Member Club preempted); Sherwin, 752 F. Supp. at 1177-79 (negligence, fraud,
negligent misrepresentation, negligent and intentional infliction of emotional distress, and
medical malpractice claims against Member Club preempted); Jeffers, 681 S.E.2d at 412
(negligent retention and intentional misconduct claims against Member Club preempted);
Section I.A.2., infra.6
A.

Plaintiffs’ Claims Are Substantially Dependent
on an Interpretation of the Terms of the CBAs
Plaintiffs’ claims for negligence, concealment, medical monitoring, and

civil conspiracy—each of which is founded on a purported duty owed to plaintiffs7—are
6

But see Brown, 219 F. Supp. 2d at 379-80, 382 (negligence claim against NFL not
preempted because referee hired by NFL owed a duty to the “general public” to “use
due care in throwing small weighted objects” because the “careless throwing of
objects” could have harmed “any bystander”; the alleged duty therefore existed
“independent of any CBA”).

7

“The primary element in any negligence cause of action is that the defendant owes a
duty of care to the plaintiff.” Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168
(Pa. 2000); Fox v. Marshall, 88 A.D.3d 131, 135 (N.Y. App. Div. 2011).
“Negligence,” in turn, is an element of both the medical monitoring and negligent
concealment claims (as discussed at p.34 n.12, the Amended Complaint does not
specify whether plaintiffs’ “concealment” claim sounds in fraud or negligence; both
are preempted by section 301 for the reasons discussed herein). See Barnes v. Am.
Tobacco Co., 161 F.3d 127, 138 (3d Cir. 1998); Majer v. Sonex Research, Inc., 541
F. Supp. 2d 693, 713 (E.D. Pa. 2008); Caronia v. Philip Morris USA, Inc., No. 06CV-224, 2011 WL 338425, at *6 (E.D.N.Y. Jan. 13, 2011); Hughes v. BCI Int’l
17

preempted by section 301 of the LMRA because determining whether the NFL, in fact,
owed a duty to plaintiffs to “minimize the risk of injury,” assessing the scope of any such
duty, and deciding whether the NFL breached this purported duty by failing to act
“reasonably” substantially depends on an analysis of the numerous CBA provisions
addressing the health and safety of NFL players. See Int’l Bhd. of Elec. Workers, AFLCIO v. Hechler, 481 U.S. 851, 852 (1987); Allis-Chalmers, 471 U.S. at 213, 220;
Beidleman, 182 F.3d at 231-32; Stringer, 474 F. Supp. 2d at 909-11; Am. Compl. ¶¶ 10,
45, 47.
1.

Plaintiffs’ Claims Require Interpretation of the CBAs

Plaintiffs’ claims, at their core, are premised on the NFL’s alleged “duty
. . . to supervise, regulate, monitor and provide reasonable and appropriate rules to
minimize the risk of injury to the players.” (Am. Compl. ¶ 45; see also id. ¶¶ 10, 16, 17,
19, 47.) As discussed above, plaintiffs contend that the NFL breached that purported
duty by, among other alleged acts, “[f]ailing to promulgate rules and regulations to
adequately address the dangers of repeated concussions,” “[f]ailing to . . . reasonably
enforce” safety rules that have been implemented, failing to adopt “a return to play policy
to minimize long-term chronic cognitive problems,” “fail[ing] to establish a proper and
adequate methodology to monitor and detect when players suffer” concussions, and

Holdings, Inc., 452 F. Supp. 2d 290, 303 (S.D.N.Y. 2006). Similarly, an essential
element of fraudulent concealment is a duty to disclose. See Aubrey v. Sanders, No.
07-CV-0137, 2008 WL 4443826, at *5-6 (W.D. Pa. Sept. 26, 2008); Manti’s Transp.,
Inc. v. C.T. Lines, Inc., 68 A.D.3d 937, 940 (N.Y. App. Div. 2009). Plaintiffs’ civil
conspiracy claim is similarly premised on the allegation that the NFL—in conjunction
with others—breached its duty by “reject[ing] the causal connection between multiple
concussions . . . and . . . the chronic long term effects of these injuries.” (Am. Compl.
¶ 41; compare ¶ 47(a)-(c), (e).)

18

“[f]ailing to warn of the risk of unreasonable harm resulting from repeated concussions.”
(Id. ¶¶ 19, 47, 61.) Those allegations strike at the heart of the myriad health and safety
provisions in the CBAs and plainly require interpretation of them.
As detailed above, the CBAs contain numerous provisions that delegate
certain responsibilities for player health and safety to NFL committees, the NFL’s
Member Clubs and their medical staff, and the NFLPA (or the players themselves).
Regarding the “methodology to monitor and detect” when players are injured,
“warn[ings] of the risk” of injuries, and “return to play” decisions, the CBAs charge Club
medical staff with such obligations. (Id. ¶¶ 19, 47(a), (d).) For example, the CBAs
require that “[i]f a Club physician advises a . . . Club representative of a player’s physical
condition which adversely affects the player’s . . . health, the physician will also advise
the player.

If such condition could be significantly aggravated by continued

performance, the physician will advise the player . . . before the player is again allowed to
perform on-field activity.” (Ex. 6, 1993 CBA Art. XLIV § 1; Ex. 10, 2006 CBA Art.
XLIV § 1; see also Ex. 5, 1982 CBA Art. XXXI § 1.) In addition, the CBAs state that
“[a]ll determinations of recovery time for . . . injuries must be by the Club’s medical staff
and in accordance with the Club’s medical standards.” (See, e.g., Ex. 20, 1980 Supp. to
NFL Constitution and Bylaws Art. XVII.) Moreover, “if Player is injured . . . and
promptly reports such injury to the Club physician . . . then Player will receive such
medical . . . care . . . as the Club physician may deem necessary.” (Ex. 6, 1993 CBA
Appx. C § 9; Ex. 10, 2006 CBA Appx. C § 9.) Likewise, “[t]he home team shall provide
a physician and an ambulance at each game available to both teams.” (See, e.g., Ex. 11,
1969 NFL and American Football League Constitution and Bylaws Art. XIX § 19.5.)

19

The CBAs further mandate that “[a]ll full-time head trainers [be] certified by the National
Athletic Trainers Association,” and that “[a]ll part-time trainers must work under the
direct supervision of a certified trainer.” (Ex. 5, 1982 CBA Art. XXXI § 2; Ex. 6, 1993
CBA Art. XLIV § 2; Ex. 10, 2006 CBA Art. XLIV § 2.)
Regarding the “promulgat[ion of] rules and regulations” on player health
and safety issues, the CBAs task the NFL and Member Clubs with “amend[ing] or
chang[ing]” the NFL “[p]laying rules”; all proposed rule changes voted on by the Clubs
must first be presented to the NFL. (See, e.g., Ex. 23, 1984 NFL Constitution and
Bylaws, Art. XI § 11.2.) In addition, the CBAs establish the “Joint Committee on Player
Safety and Welfare . . . for the purpose of discussing the player safety and welfare aspects
of . . . playing rules,” and require that “[i]f . . . the Commissioner determines that the
adoption of the playing rule change could adversely affect player safety, the
Commissioner will refer the proposed playing rule change to this Committee for
consideration and recommendation.” (Ex. 4, 1977 CBA Art. XI § 8; Ex. 5, 1982 CBA
Art. XI; Ex. 6, 1993 CBA Art. XIII § 1(a); Ex. 10, 2006 CBA Art. XIII § 1(a); Am.
Compl. ¶ 47(d); see also Ex. 3, 1970 CBA Art. V.) The CBAs further mandate that “[i]f
the NFLPA believes that the adoption of a playing rule change would adversely affect
player safety,” it may seek to investigate, and “request an advisory decision” by an
arbitrator regarding the proposed change. (Ex. 5, 1982 CBA Art. XI § 9; Ex. 6, 1993
CBA Art. XII § 1(c); Ex. 10, 2006 CBA Art. XII § 1(c).)
Finally, the CBAs grant NFL players certain rights and obligations
relating to health and safety issues. See, e.g., Ex. 9, 2002 Am. to 1993 CBA Art. XIII §
1(d); Ex. 10, 2006 CBA Art. XIII § 1(d) (empowering the “NFLPA . . . to commence an

20

investigation before the Joint Committee if the NFLPA believes that the medical care of a
team is not adequately taking care of player safety”); Ex. 5, 1982 CBA Art. XXXI § 3;
Ex. 6, 1993 CBA Art. XLIV § 3; Ex. 10, 2006 CBA Art. XLIV § 3 (“A player will have
the opportunity to obtain a second medical opinion” at Club’s expense); Ex. 5, 1982 CBA
Art. XXXI § 4; Ex. 6, 1993 CBA Art. XLIV § 4; Ex. 10, 2006 CBA Art. XLIV § 4
(guaranteeing a player’s “right to choose the surgeon who will perform surgery” on the
player); Ex. 5, 1982 CBA Art. XXXI § 5; see also Ex. 6, 1993 CBA Art. XLIV § 5; Ex.
10, 2006 CBA Art. XLIV § 5 (“[e]ach player will undergo a standardized minimum preseason physical examination . . . which will be conducted by the Club physician,” and a
“post-season physical examination” shall be conducted at the player’s or Club’s request).
As these (and other) CBA provisions make clear, an assessment of
plaintiffs’ claims necessarily and substantially depends on an interpretation of the CBAs.
Plaintiffs allege that the NFL “failed to act reasonably” in several respects: by failing to
“identify at risk players,” “alert players” regarding injury risks, “develop appropriate and
necessary guidelines for return to play,” implement “rules to minimize the risk of injury,”
and “enforce” safety rules it had adopted. (Am. Compl. ¶¶ 10, 16, 17, 45, 47(g), 61.) But
as discussed above, the CBAs already delegate responsibility for each of these tasks:
Club physicians are tasked with monitoring player injuries, warning players about injury
risks, and making return to play decisions; the NFL and its Member Clubs are responsible
for implementing safety-related rules and regulations; the Clubs, the NFLPA, and the
NFL share responsibility for commenting on such rules; and the NFLPA is further
empowered to investigate player safety issues.

21

Thus, a court cannot evaluate the scope of the NFL’s purported duties to
plaintiffs or whether the NFL acted “reasonably” without first considering these
preexisting obligations regarding player health and safety imposed by the CBAs. For
example, determining whether, as plaintiffs allege, the NFL failed to act “reasonably” by
not “develop[ing] guidelines for return to play”—and what conduct would be
“reasonable” under the circumstances—would first require interpretation of the provision
that “[a]ll determinations of recovery time for . . . injuries must be by the Club’s medical
staff and in accordance with the Club’s medical standards.” (Id. ¶ 10; Ex. 20, 1980 Supp.
to NFL Constitution and Bylaws Art. XVII.) See Stringer, 474 F. Supp. 2d at 910-11
(wrongful death claim preempted where player’s spouse sought to impute to NFL healthrelated duties assigned to others under CBA); see also Givens, 684 F. Supp. 2d at 990-91
(tort claims preempted where former player sought to impute to Member Club healthrelated duties assigned to Club physician under CBA).
Simply put, the NFL’s alleged duty—even if “assumed” as plaintiffs
allege—cannot be considered in a “vacuum,” but must be calibrated according to the
scope of the duties contractually delegated to others by the CBAs. Stringer, 474 F. Supp.
2d at 910-11; Sherwin, 752 F. Supp. at 1177-79 (fraud claim against Member Club
preempted because CBA establishes “duty of a club physician, and arguably the club,” to
inform player of adverse physical conditions); Am. Compl. ¶¶ 45, 47.
In addition, the Court cannot determine whether plaintiffs justifiably relied
on the NFL’s alleged concealment without interpreting the CBAs’ health and safety
provisions. See Williams v. National Football League, 582 F.3d 863, 881 (8th Cir. 2009)
(finding players’ fraud claim—that the NFL knew that a supplement contained a banned

22

substance but failed to warn the players—was “preempted because the Players cannot
demonstrate the requisite reasonable reliance . . . without resorting to the CBA,” which
tasked specific individuals with responsibility for knowing the contents of supplements);
see also Atwater v. National Football League, 626 F.3d 1170, 1183 (11th Cir. 2010)
(finding former players’ negligent misrepresentation claim—that the NFL provided
inaccurate background information regarding investment advisors for the players—was
preempted

because

“whether

Plaintiffs

reasonably

relied

on

Defendants’

misrepresentations is substantially dependent on the CBA’s language,” which delegated
responsibility for player finances to specific individuals). Courts must consider the
“relationship of the parties . . . and the nature of the transaction when determining
whether one party’s reliance . . . is justifiable.” Tran v. Metro. Life Ins. Co., 408 F.3d
130, 135 (3d Cir. 2005) (internal quotations and citations omitted); Musalli Factory For
Gold & Jewellry v. JPMorgan Chase Bank, N.A., 261 F.R.D. 13, 28 (S.D.N.Y. 2009).
Thus, any analysis of plaintiffs’ purported reliance necessarily depends on an
interpretation of the numerous CBA provisions that define the obligations of the NFL,
Member Clubs, Club physicians, and players regarding player health and safety and, as
the parties bargained, expressly delegate those duties to the Member Clubs and their
medical staff.
In sum, all of plaintiffs’ claims are “substantially dependent on analysis
of” the numerous health and safety-related CBA provisions and are thus preempted by
section 301. Allis-Chalmers, 471 U.S. at 213.

23

2.

The Case Law Compels Preemption of Plaintiffs’ Claims

A long line of NFL preemption precedent supports the conclusion that
plaintiffs’ tort claims are “substantially dependent” on an analysis of the CBAs. See, e.g.,
Givens, 684 F. Supp. 2d at 990-91; Stringer, 474 F. Supp. 2d at 909-11; Sherwin, 752 F.
Supp. at 1177-79; Jeffers, 681 S.E.2d at 412.
Stringer v. National Football League—holding that a claim against the
NFL founded on allegations substantially similar to those advanced here was preempted
under section 301—is on point. 474 F. Supp. 2d at 909-11. In Stringer, the widow of an
NFL player, Korey Stringer, brought a wrongful death claim against the NFL (and others)
after Stringer died from heatstroke suffered at the Minnesota Vikings’ training camp.
Like plaintiffs here, the Stringer plaintiff alleged that the NFL assumed a duty to its
players “to use ordinary care in overseeing, controlling, and regulating practices, policies,
procedures, equipment, working conditions and culture of the NFL teams . . . to minimize
the risk of heat-related illness,” and that the NFL breached this duty by “fail[ing] to
provide . . . competent information . . . to . . . trainers, physicians and coaches regarding
heat-related illness.” Id. at 899; cf. Am. Compl. ¶¶ 45, 47. Specifically—and, again, like
plaintiffs here—the Stringer plaintiff asserted that the NFL “fail[ed] to establish
regulations” to ensure “adequate care and monitoring of players suffering from heatrelated illness” and “regulation of . . . return to practice.” Stringer, 474 F. Supp. 2d at
903-04; cf. Am. Compl. ¶ 47(d)-(e).

Indeed, except for substituting the word

“concussion” for “heat-related illness” in their Amended Complaint, plaintiffs’
allegations mimic nearly verbatim the facts alleged in Stringer and thus are preempted for

24

the same reasons. Compare Am. Compl. ¶¶ 5-7, 45-47 with Stringer, 474 F. Supp. 2d at
899, 903-05.
The Stringer court determined that plaintiff’s claim was preempted
because it was “substantially dependent upon an analysis of certain CBA provisions
imposing duties on the Clubs with respect to medical care and treatment of NFL players.”
Id. at 909 (internal quotations omitted). Specifically, and among other reasons, the court
found because the CBA “places primary responsibility” for treating the players’ physical
conditions on the team physicians, the CBA provisions doing so “must, therefore, be
taken into account in determining the degree of care owed by the NFL and what was
reasonable under the circumstances.” Id. at 910-11. The court thus held that, even if the
NFL had voluntarily assumed a duty, “the degree of care owed cannot be considered in a
vacuum” but instead “must be considered in light of pre-existing contractual duties
imposed by the CBA on the individual NFL clubs concerning the general health and
safety of the NFL players.” Id. at 910.
Indeed, Stringer is consistent with numerous other decisions holding that
player injury claims that seek to impute to NFL Clubs duties owed by others under the
CBA are preempted because they require interpretation of CBA terms. For example, in
Givens v. Tennessee Football, Inc., a former player alleged that an NFL Club failed to
inform him of a knee defect that was detected by the Club physician, and that plaintiff
continued to play football until a subsequent injury caused the defect to “crumble”
thereby ending his career. 684 F. Supp. 2d at 988. The court, relying on the same CBA
provisions considered by the Stringer court, concluded that plaintiff’s claims were
preempted by section 301: “The questions raised by the Complaint, such as whether a

25

physician’s failure to advise a player of his medical condition should be imputed to the
club or whether the club has a duty independent of the physician to advise a player of his
medical condition, are ‘inextricably intertwined’ with the provisions of the CBA.” Id. at
990-91; Sherwin, 752 F. Supp. at 1177-78 (finding former NFL player’s claims that Club
provided negligent medical treatment and fraudulently concealed the extent of the
player’s injury were preempted because Club “did not owe a duty to provide medical care
to the plaintiff independent of the relationship established in the” CBAs, and because the
CBAs established “the duty of a club physician, and arguably the club, to inform a player
of physical conditions,” and whether the physician and the club both owed this duty
presented “precisely the type of question which must be reserved for the arbitrator”);
Jeffers, 681 S.E.2d at 412 (finding former NFL player’s claims against Club—that team
physician performed unauthorized procedures during knee surgery—preempted because
the claims were substantially dependent on an analysis of CBA provisions setting forth
the Clubs’ and players’ rights and duties in connection with medical care); see also
Williams, 582 F.3d at 881 (finding negligence claim against the NFL preempted because
“whether the NFL . . . owed the Players a duty to provide . . . a warning [that a
supplement contained a banned substance under the NFL Drug Policy] cannot be
determined without examining the parties’ legal relationship and expectations as
established by the CBA and the Policy”); Atwater, 626 F.3d at 1182 (finding former
players’ negligence, negligent misrepresentation, and breach of fiduciary duty claims
against the NFL—premised on allegations that they were victims of Ponzi scheme
conducted by financial advisors who had been improperly vetted by NFL—were
preempted, in part, because the court “would . . . have to consult the CBA to determine

26

the scope of the legal relationship between Plaintiffs and the NFL and their expectations
based upon that relationship”).
So, too, here.
B.

Plaintiffs’ Claims Arise Under the CBA
Plaintiffs’ claims are preempted by section 301 for an additional reason:

They are premised on rights and obligations that arise under the CBAs. See AllisChalmers, 471 U.S. at 213.
The CBAs define the relationship between—and are binding as to—the
NFL, its Member Clubs, and the players. (See Ex. 4, 1977 CBA Art. II § 1; Ex. 5, 1982
CBA Art. III § 1; Ex. 6, 1993 CBA Art. III § 1; Ex. 10, 2006 CBA Art. III § 1; see also
Ex. 3, 1970 CBA Art. II § 1 (CBAs “represent[] the complete understanding of the parties
on all subjects covered [t]herein”); Ex. 3, 1970 CBA Art. II § 1; Ex. 4, 1977 CBA Art. I
§ 1; Ex. 5, 1982 CBA Art. II § 2; Ex. 6, 1993 CBA Art. III § 1; Ex. 10, 2006 CBA Art. III
§ 1 (incorporating by reference the NFL Constitution and Bylaws).)
As the Amended Complaint makes clear, plaintiffs’ claims hinge
fundamentally on the NFL’s purported failure to promulgate adequate rules regarding
player health and safety. (See, e.g., Am. Compl. ¶ 10 (the NFL “failed to . . . develop[]
. . . rules regarding return-to-play criteria”); id. ¶ 35(b) (plaintiffs “played in the NFL
under the same inadequate rules”); id. ¶ 45 (the NFL “assumed a duty . . . to . . . provide
. . . appropriate rules to minimize the risk of injury”); id. ¶ 47(d) (the NFL failed “to
promulgate rules . . . to adequately address the dangers of repeated concussions and a
return to play policy”); id. ¶ 47(g) (the NFL failed to “reasonably enforce those rules
[already implemented] to minimize the risk of” injury).)

27

The CBAs, however, establish the duty of the NFL and its Clubs to
implement and enforce rules regarding professional football generally, and health and
safety-related rules in particular. Indeed, the CBAs delegate to the NFL and its Clubs the
obligation to “amend[] or change[]” all NFL “[p]laying rules,” and further require that all
proposed rule changes be presented to the NFL prior to a vote. (See, e.g., Ex. 23, 1984
NFL Constitution and Bylaws, Art. XI § 11.2; see also Ex. 4, 1977 CBA Art. XI; Ex. 5,
1982 CBA Art. XI; Ex. 6, 1993 CBA Art. XIII § 1(a); Ex. 10, 2006 CBA Art. XIII § 1(a)
(forming the “Joint Committee on Player Safety and Welfare” which is tasked with
addressing “the player safety and welfare aspects of . . . playing rules”); Ex. 4, 1977 CBA
Art. XI § 8 (requiring the NFL to refer rules that may adversely affect player safety to the
Joint Committee for consideration and recommendation); Ex. 5, 1982 CBA Art. XI § 9;
Ex. 6, 1993 CBA Art. XIII § 1(c); Ex. 10, 2006 CBA Art. XIII § 1(c) (empowering the
NFLPA to investigate potentially hazardous rules).) Thus, the NFL’s alleged duty—to
implement “appropriate rules to minimize the risk of injury”—arises under the CBAs.8
(Am. Compl. ¶ 45.)
That this purported obligation arises under the CBAs is confirmed by the
fact that the duty does not exist independent of the CBAs: The NFL does not owe duties
to promulgate rules regarding player health and safety to the “general public” or “any
human being.” See Rawson, 495 U.S. at 371 (holding a state law right only arises outside

8

The Stringer court concluded that the NFL’s alleged duties did not arise under the
CBA. Unlike the Stringer plaintiff—who alleged “that in issuing the [Hot Weather]
guidelines,” the NFL assumed a duty and breached it because the Guidelines were
allegedly “incomplete and contrary to the best practices”—plaintiffs here allege that
the NFL “[f]ail[ed] to promulgate” and enforce “rules” relating to player health and
28

of a CBA where defendant is “accused of acting in a way that might violate the duty of
reasonable care owed to every person in society”); Brown, 219 F. Supp. 2d at 378 (“To
be independent of the CBA, a tort claim must allege a violation of a duty ‘owed to every
person in society’ as opposed to a duty owed only to employees covered by the collective
bargaining agreement” (quoting Rawson, 495 U.S. 362 (1990)); Sherwin, 752 F. Supp. at
1178 (finding fraud claim arose under CBA because “[t]he Colts owed a duty to . . .
provide truthful information regarding medical treatment and diagnoses . . . only to their
players covered by the standard player agreement and the CBA,” not “to every person in
society” (quoting Rawson, 495 U.S. at 371)); but see Stringer, 474 F. Supp. 2d at 908
(suggesting Brown’s reading of Rawson is “too broad,” and stating “the relevant inquiry
. . . is not to whom the duty is owed, but how it came into being”). Plaintiffs do not
allege and cannot credibly maintain, for example, that the NFL was obligated to
“develop[] . . . rules regarding return-to-play criteria” for every football player at any
level. (Am. Compl. ¶ 10.) On the contrary, the duties alleged by plaintiffs all concern
the implementation and enforcement of rules pertaining to the health and safety of solely
NFL players.
Accordingly, plaintiffs’ claims—all of which are premised on CBA
provisions regarding rulemaking and all of which thus involve duties allegedly owed to
NFL players only—arise under the CBAs and are preempted by section 301. See AllisChalmers, 471 U.S. at 213.
*

*

*

safety—obligations that are, as discussed, created by the CBAs. Stringer, 474 F.
Supp. 2d at 905; Am. Compl. ¶ 47(d); see also id. ¶¶ 10, 35(b), 45, 47(g).

29

In sum, all of plaintiffs’ claims are preempted under section 301 and
should be dismissed.9 Givens, 684 F. Supp. 2d at 991-92 (“[B]ecause preempted claims
must first be presented through the arbitration procedure established in a collective
bargaining agreement, those claims should be dismissed” (citing Allis-Chalmers, 471
U.S. at 219-20)); see also Angst, 969 F.2d at 1537 (“Under federal labor law, aggrieved
employees must exhaust their CBA’s grievance and arbitration procedures before filing a
complaint in federal court”). To the extent that plaintiffs have a claim for a violation of the
CBAs, that claim may only proceed pursuant to the grievance procedures set forth in the
CBAs. (Ex. 4, 1977 CBA Art. VII § 1; Ex. 5, 1982 CBA Art. VII § 1; Ex. 6, 1993 CBA
Art. IX § 1; Ex. 10, 2006 CBA Art. IX § 1; see also Ex. 3, 1970 CBA Art. X.) See AllisChalmers, 471 U.S. at 220-21 (noting tort claim should have been “dismissed for failure to
make use of the grievance procedure established in the collective-bargaining agreement . . .
or dismissed as pre-empted by § 301”) (citation omitted)).10

9

The plaintiff spouses’ loss of consortium claims are derivative of the former players’
claims and should therefore be dismissed. Hurst v. Consol. Freightways Corp., No.
88-CV-0744, 1990 WL 43934, at *5 (M.D. Pa. Apr. 5, 1990) (finding spouse’s loss of
consortium claim failed where husband’s state-law claims were preempted by § 301);
see also St. John v. Int’l Ass’n of Machinists and Aerospace Workers, 139 F.3d 1214,
1217 n.1 (8th Cir. 1998) (same); Clarke v. City of New York, 82 A.D.3d 1143, 1144,
(N.Y. App. Div 2011) (loss of consortium claim is derivative of underlying claims);
cf. Sherwin, 752 F. Supp. at 1179 (staying loss of consortium claim pending
arbitration of underlying preempted claims).

10

Although it is unclear whether plaintiffs’ claims allegedly accrued during periods in
which no CBA was in place (i.e., 1987-1993), “expiration of the [CBA] between the
[NFL and NFLPA] does not excuse an otherwise existing requirement to exhaust the
[CBA’s] grievance procedures.” Hayes v. National Football League, 469 F. Supp.
252, 254 (C.D. Cal. 1979); Sherwin, 752 F. Supp. at 1174-75 & n.2 (“[T]he [expired]
1982 CBA continues to govern the relationship of the parties at least with respect to
arbitration since the parties have continued to honor and utilize the arbitration
provisions of the 1982 CBA.”); see also Nolde Bros. v. Local No. 358, 430 U.S. 243,
30

II.
PLAINTIFFS FAIL TO STATE CLAIMS
UPON WHICH RELIEF CAN BE GRANTED
To the extent that this Court finds that plaintiffs’ claims for concealment,
civil conspiracy, and medical monitoring are not preempted, these claims should be
dismissed because they lack the requisite elements of each claim and are not, where
applicable, pleaded with the particularity prescribed by Federal Rule of Civil Procedure
9(b).11
A.

Plaintiffs Fail to State a Claim for Concealment
Plaintiffs do not adequately allege a claim for “concealment.” To state a

claim for fraudulent concealment, plaintiffs must allege that (1) defendant concealed a
material fact (2) that defendant knew would be material to plaintiffs; (3) defendant had a
255 (1977) (“[T]he parties’ failure to exclude from arbitrability contract disputes
arising after termination, far from manifesting an intent to have arbitration obligations
cease with the agreement, affords a basis for concluding that they intended to arbitrate
all grievances arising out of the contractual relationship.”); Luden’s Inc. v. Local
Union No. 6, 28 F.3d 347, 357-58 (3d Cir. 1994) (same).
11

Plaintiffs purport to allege claims for concealment and civil conspiracy under the laws
of all fifty states, and to assert a claim for medical monitoring under New York law.
(See Am. Compl. ¶ 21.) While Pennsylvania courts focus on four factors when
conducting a substantive choice of law analysis—(i) the alleged place of misconduct,
(ii) the parties’ domiciles, (iii) the alleged place of injury, and (iv) the place where the
relationship between the parties is centered—plaintiffs have only alleged facts
regarding the place of alleged misconduct (New York) and the parties’ domiciles
(Arizona, Georgia, New York, Pennsylvania, South Carolina, Virginia, Washington,
West Virginia). See Taylor v. Mooney Aircraft Corp., 265 Fed. Appx. 87, at *2 n.4
(3d Cir. 2008); Am. Compl. ¶¶ 2-20, 23-30. As discussed below, plaintiffs fail to
state claims for concealment, conspiracy, and medical monitoring under the laws of
these eight potentially applicable jurisdictions or any other jurisdiction. For ease of
discussion, the NFL primarily cites New York and Pennsylvania case law in this brief
because plaintiffs identify New York law as the primary state law governing their
claims, and Pennsylvania is the forum state. (Am. Compl. ¶¶ 21-22.)

31

duty to disclose that fact; (4) defendant intended to mislead plaintiffs; (5) plaintiffs
justifiably relied on the information provided by defendants; and (6) plaintiffs were
injured as a result. See Gaines v. Krawczyk, 354 F. Supp. 2d 573, 585 (W.D. Pa. 2004);
Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 582 (2d Cir. 2005); 37
C.J.S. Fraud § 29 (2011).
As with all claims for fraud, a fraudulent concealment claim must comply
with Rule 9(b), which requires plaintiffs to allege “the circumstances constituting fraud
. . . with particularity.” Fed. R. Civ. P. 9(b); Christidis v. First Pa. Mortg. Trust, 717 F.2d
96, 99 (3d Cir. 1983); Houraney v. Burton & Assoc., P.C., 701 F. Supp. 2d 258, 261
(E.D.N.Y. 2010). Rule 9(b) thus requires plaintiffs to plead “all of the essential factual
background that would accompany the first paragraph of any newspaper story—that is,
the who, what, when, where, and how of the events at issue.” In re Rockefeller Ctr.
Props., Inc. Sec. Litig., 311 F.3d 198, 216-17 (3d Cir. 2002) (citations omitted); Sedona
Corp. v. Ladenburg Thalmann & Co., No. 03-CV-3120, 2011 WL 4348138, at *3
(S.D.N.Y. Sept. 15, 2011).
Plaintiffs’ conclusory pleading falls far short.

First, plaintiffs’ only

allegations that the NFL concealed a material fact are the conclusory claims that “[s]ince
the early 1970s . . . . the defendant has taken an active role in concealing . . . any
causative connection between concussions . . . and brain injury/illness.” (Am. Compl.
¶ 9; see also id. ¶¶ 15, 17, 37 (same).) Plaintiffs do not, as they must, assert any factual
allegations as to who purportedly concealed any information from plaintiffs, what exactly
they concealed, when the alleged fraud occurred, or how the NFL perpetrated this
supposed fraud—beyond the bare assertion that the NFL “disputed the results of a

32

scientific study it funded.” (Id. ¶ 11.) Nor do plaintiffs allege—in even conclusory
terms, let alone with the requisite specificity—that the purportedly concealed information
would have been material to any decisions they made.

Such an “unadorned, the

defendant-unlawfully-harmed-me accusation” is insufficient to survive a motion to
dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); McCracken v. Ford Motor Co.,
588 F. Supp. 2d 635, 644 (E.D. Pa. 2008) (dismissing claim because plaintiff “does not
allege the date, place or time of these misrepresentations”); Fisher v. APP Pharms., LLC,
783 F. Supp. 2d 424, 432-33 (S.D.N.Y. 2011) (same); Kline v. EDS Relocation &
Assignment Servs., No. 08-CV-0980, 2008 WL 4822026, at *5 (M.D. Pa. Nov. 4, 2008)
(“Plaintiffs fail to sufficiently plead that the alleged . . . omission . . . was material”);
Lefkowitz v. Bank of New York, 676 F. Supp. 2d 229, 266 (S.D.N.Y. 2009) (same).
Plaintiffs also do not allege, as they must, that the NFL knew this
purported link was important to plaintiffs and deliberately concealed the connection. Nor
do plaintiffs allege with specificity how the NFL’s purported concealment caused
plaintiffs’ injuries. Instead, the Amended Complaint asserts only that the NFL “has
known . . . from its supervisory and management role” about the link between
concussions and long-term injury since “the early 1970s,” and speculates conclusorily
that the NFL’s concealment of this link was the “proximate cause” of plaintiffs’ injuries.
(Am. Compl. ¶¶ 9, 38.) Plaintiffs’ boilerplate is insufficient. See, e.g., Rosenberg v. Avis
Rent A Car Sys., Inc., No. 07-CV-1110, 2007 WL 2213642, at *5 (E.D. Pa. July 31,
2007) (“[Plaintiff] fails to allege with particularity that defendant . . . had knowledge of
the falsity of the alleged representation”); Fagan v. AmerisourceBergen Corp., 356 F.
Supp. 2d 198, 218 (E.D.N.Y. 2004) (same); Allegheny General Hosp. v. Philip Morris,

33

Inc., 228 F.3d 429, 445-46 (3d Cir. 2000) (“[P]roximate cause is lacking due to the
remoteness of the . . . injury in relation to the [alleged misconduct] and the
speculativeness of damages”); Hampshire Equity Partners II, L.P. v. Teradyne, Inc., No.
04-CV-3318, 2005 WL 736217, at *4 (S.D.N.Y. Mar. 30, 2005) (same).
As for the other required elements of fraud—intent to defraud and
justifiable reliance—plaintiffs simply do not even try to allege them. See Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (“To determine the sufficiency of a
complaint . . . a court must . . . [f]irst . . . take note of the elements a plaintiff must plead
to state a claim.” (quoting Iqbal, 129 S. Ct. at 1947, 1950)); Capital Funding, VI, LP v.
Chase Manhattan Bank USA, N.A., No. 01-CV-6093, 2003 WL 21672202, at *6 (E.D.
Pa. Mar. 21, 2003) (dismissing claim where plaintiff did not allege “that [defendants] . . .
intended to defraud [plaintiff]”); Woods v. Maytag Co., No. 10-CV-0559, 2010 WL
4314313, at *9 (E.D.N.Y. Nov. 2, 2010) (same); McCracken, 588 F. Supp. 2d at 644
(dismissing claim, in part, because plaintiff “does not allege . . . whether he relied on
[alleged omissions] when purchasing” automobile “or how any such reliance was
justified”); Tuosto v. Philip Morris USA, Inc., 672 F. Supp. 2d 350, 363 (S.D.N.Y. 2009)
(same). Accordingly, plaintiffs’ deficiently pleaded fraudulent concealment claim should
be dismissed.12

12

Plaintiffs do not specify whether their “concealment” claim sounds in fraud or
negligence. To the extent that plaintiffs purport to plead “negligent concealment,”
their claim fares no better. “[M]any states do not recognize a cause of action for
negligent nondisclosure.” 37 AM. JUR. 2D Fraud and Deceit § 202 (2011). Those
that do require elements that generally track the elements of a negligent
misrepresentation claim and include, for example, (1) a misrepresentation of a
material fact; (2) made under circumstances in which the misrepresenter ought to
have known its falsity; (3) with an intent to induce another to act on it; (4) which
34

B.

Plaintiffs Fail to State a Claim for Civil Conspiracy
Plaintiffs’ civil conspiracy claim is equally deficient. Although state laws

differ regarding the elements of conspiracy, all require that plaintiffs plead the foundation
of the claim: that two or more people agreed to do an unlawful act. See Grose v. Procter
& Gamble Paper Prods., 866 A.2d 437, 440 (Pa. Super. Ct. 2005); Kottler v. Deutsche
Bank AG, 607 F. Supp. 2d 447, 463 (S.D.N.Y. 2009); see also 15A C.J.S. Conspiracy § 9
(2011). Plaintiffs “who allege civil conspiracy must plead some fact, such as meetings,
conferences, telephone calls or joint signatures on relevant forms, or allege facts inferring
conspiratorial conduct.” Thompson v. Ross, No. 10-CV-479, 2010 WL 3896533, at *7
(W.D. Pa. Sept. 30, 2010) (internal quotation marks and citations omitted); Medtech
Prods. Inc. v. Ranir, LLC, 596 F. Supp. 2d 778, 794-95 (S.D.N.Y. 2008) (plaintiff’s
conspiracy allegation—that defendants “conspired, agreed, and planned to use
[plaintiff’s] confidential and proprietary information”—were “too conclusory and lacking
in factual detail to survive . . . Motions to Dismiss”).
Plaintiffs’ sole allegation regarding the NFL’s purported conspiratorial
conduct—that the NFL “conspired with its team members and/or independent
contractors” by “direct[ing them] to . . . reject the . . . connection between multiple
results in injury to a party acting in justifiable reliance on the misrepresentation; and
(5) a duty owed by one party to another. See, e.g., Destefano & Assoc., Inc. v. Cohen,
No. 2775 June Term 2000, 2002 WL 1472340, at *2 (Pa. Com. Pl. Ct. May 23, 2002)
(applying the elements of a negligent misrepresentation claim to a negligent
concealment claim). As discussed above, plaintiffs have failed to plead either the
NFL’s alleged concealment or the causative link between such concealment and
plaintiffs’ injuries with the requisite particularity. Plaintiffs have further failed to
allege that the purportedly concealed facts were material or that plaintiffs justifiably
relied on allegedly incomplete information provided by the NFL. See Section II.A.,
supra.

35

concussions . . . and . . . long term effects”—is devoid of any concrete information
regarding the alleged conspiracy. (Am. Compl. ¶ 41.) Indeed, plaintiffs have alleged a
nearly infinite number of possible co-conspirators (while identifying none specifically),
have suggested that the purported conspiracy occurred sometime during “the decades of
the 1970s, 1980s, 1990s, and 2000s,” and have offered not a shred of factual support—no
“meetings, conferences, telephone calls or joint signatures”—demonstrating who at the
NFL orchestrated this purported conspiracy or how they achieved it. Thompson, 2010
WL 3896533, at *7; Am. Compl. ¶ 10; see also id. ¶ 7. This “threadbare conspiracy
cause of action with no factual corroboration” should be dismissed. Thompson, 2010 WL
3896533, at *7; see also Santiago, 629 F.3d at 130 (“allegations that . . . are no more than
conclusions, are not entitled to the assumption of truth”); Donini Int’l, S.p.A. v. Satec
(U.S.A.) LLC, No. 03-CV-9471, 2004 WL 1574645, at *3, 4 (S.D.N.Y. July 13, 2004)
(same).
Moreover, many states—including New York and Pennsylvania—also
require plaintiffs to plead malice, “i.e., an intent to injure,” an essential element of
conspiracy. Grose, 866 A.2d at 440, 441; see also Wegman v. Dairylea Co-op., Inc., 50
A.D.2d 108, 114 (N.Y. App. Div. 1975) (same); 15A C.J.S. Conspiracy § 15 (2011). In
those jurisdictions, “[i]t must be alleged that the sole purpose of the conspiracy was to
injure the [p]laintiffs.” Zafarana v. Pfizer Inc., 724 F. Supp. 2d 545, 559 (E.D. Pa. 2010)
(dismissing claim against pharmaceutical companies where plaintiffs did not aver that
defendants’ sole purpose was to injure, but to maximize profits); Operative Plasterers’ &
Cement Masons’ Int’l Ass’n v. Metro. N.Y. Dry Wall Contractors Ass’n, Inc., 543 F.
Supp. 301, 313 (D.C.N.Y. 1982) (same). Here, plaintiffs allege that the NFL concealed

36

the connection between concussions and long-term injuries to further its “interest in
keeping its fan base excited and interested,” thus conceding that the conspiracy’s “sole
purpose” was not to injure plaintiffs. Zafarana, 724 F. Supp. 2d at 559; Operative
Plasterers’ & Cement Masons’ Int’l Ass’n, 543 F. Supp. at 313; Am. Compl. ¶¶ 6-7.
In addition, under the state laws of most jurisdictions, conspiracy is not
independently actionable; liability depends on the performance of a separate, intentional
tort. See 16 AM. JUR. 2D Conspiracy § 64 (2011). As discussed, plaintiffs fail to state a
claim for fraudulent concealment and assert no other intentional tort. Accordingly, their
conspiracy claim should be dismissed. See McKeeman v. Corestates Bank, N.A., 751
A.2d 655, 660 (Pa. Super. Ct. 2000) (dismissing claim for lack of underlying tort);
Altman v. Fortune Brands, Inc., 268 A.D.2d 231, 232 (N.Y. App. Div. 2000) (same).
C.

Plaintiffs Fail to State a Claim for Medical Monitoring
Finally, plaintiffs fail adequately to allege a claim for medical monitoring.

As a threshold matter, this claim is not viable in most states. See generally D. Scott
Aberson, Note, A Fifty-State Survey of Medical Monitoring and the Approach the
Minnesota Supreme Court Should Take When Confronted With The Issue, 32 WM.
MITCHELL. L. REV. 1096 (2006). Those jurisdictions that recognize the claim require
plaintiffs to plead substantially similar elements:
(1) exposure at greater than background levels; (2) to a proven hazardous
substance; (3) caused by defendant’s tortious conduct; (4) as a proximate
result of the exposure, plaintiff faces an elevated risk of contracting a
serious latent disease; (5) a monitoring procedure exists that makes early
detection possible; (6) the monitoring program is different than the
program normally prescribed in the absence of exposure; and (7) the
monitoring program is reasonably necessary according to contemporary
scientific principles.

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See, e.g., Caronia, 2011 WL 338425, at *7 (E.D.N.Y. Jan. 13, 2011).
Plaintiffs’ medical monitoring claim is infirm for numerous reasons. First,
plaintiffs fail to plead the claim’s essential element—namely, that plaintiffs were exposed
to a “proven hazardous substance” that invaded the body. Id. Instead, plaintiffs allege
that they have “been exposed to a greater risk of concussions . . . which then have an
increased risk of . . . long-term injury.” (Am. Compl. ¶ 55.) An “increased risk of
concussions” is not a “proven hazardous substance” under settled law, which permits
medical monitoring claims only on the basis of exposure to a tangible, harmful substance
that physically enters the body. See, e.g., Remson v. Verizon Commc’ns, Inc., No. 07CV-5296, 2009 WL 723872, at *4 (E.D.N.Y. Mar. 13, 2009) (noting “plaintiff must
allege exposure to the allegedly toxic material” and that “alleged exposure to industrial
chemicals” sufficed); Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 136 (N.Y.
App. Div. 1984) (noting that “liability grows out of invasion of the body by the foreign
substance” and finding “exposure to . . . toxic chemicals emanating from the landfill”
satisfies this element); Gerardi v. Nuclear Util. Servs., Inc., 566 N.Y.S.2d 1002, 1003-04
(N.Y. Sup. Ct. 1991) (stating plaintiff must plead “invasion of the body by toxic
substances” and finding “exposure . . . to toxic asbestos” sufficient); see also Bower v.
Westinghouse Elec. Corp., 522 S.E.2d 424, 427, 433 (W. Va. 1999) (holding “plaintiff
must present scientific evidence demonstrating a probable link between exposure to a
particular compound and human disease” and suggesting “expos[ure] to . . . deleterious

38

substances” including “arsenic,” “beryllium,” “MTBE,” and “PCB compounds” is
sufficient).13
“Hazardous conditions” do not suffice.

See, e.g., Walter v. Magee-

Women’s Hospital of UPMC Health System, 876 A.2d 400, 405 (Pa. Super. Ct. 2005),
aff’d, 906 A.2d 1194 (2006) (dismissing claim where plaintiffs “claim they were exposed
to dangerous and unsafe medical care . . . and attempt to equate this with exposure to a
proven hazardous substance”).14
Second, where, as here, the “claim for medical monitoring essentially
tracks the elements of the claim, but without any specific facts alleged (e.g., as to what
medical monitoring procedure exists . . . ),” such “generalized allegations are legally
insufficient to state a claim.” In re Avandia Mktg., Sales Practices & Prods. Liab. Litig.,
No. 10-CV-2401, 2011 WL 4006639, at *3 (E.D. Pa. Sept. 7, 2011); see also Jones v.
Utils. Painting Corp., 198 A.D.2d 268, 268 (N.Y. App. Div. 1993) (dismissing claim
because “complaint fails to specifically allege actual exposure to asbestos, at toxic levels,
sufficient to state a cause of action”). Here, plaintiffs fail to plead any facts to support
13

Indeed, so limiting “proven hazardous substances” accords with the public policy that
justifies “medical monitoring” as a means to “promote[] early diagnosis and treatment
of disease resulting from exposure to toxic substances.” Barnes, 161 F.3d at 139-40;
see also Burns v. Jaquays Min. Corp., 752 P.2d 28, 33 (Ariz. Ct. App. 1987) (medical
monitoring “subjects polluters to significant liability when proof of the causal
connection between the tortious conduct and the plaintiffs’ exposure to chemicals is
likely to be most readily available”).

14

To the extent plaintiffs have alleged that they have been exposed to concussions, and
not merely a “greater risk” of concussions, their claim is similarly unavailing. (See
Am. Compl. ¶ 57.) As discussed, plaintiffs must allege exposure to a proven
hazardous substance that invades the body. Caronia, 2011 WL 338425, at *5 (only
“one who has suffered an invasion of the body by [a] foreign substance” can recover
under claim). A concussion is neither a tangible substance nor can it invade the body.

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their allegations, which merely repeat the elements of the claim nearly verbatim without
providing any factual allegation regarding, for example, a “normal” background level for
concussions or the alleged concussion-exposure monitoring procedure. See Caronia,
2011 WL 338425, at *7; Am. Compl. ¶¶ 55-58. Such pleading is the exact type of
“formulaic recitation” of elements that courts have found “legally insufficient to state a
claim.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Avandia,
2011 WL 4006639, at *3.
Finally, to the extent that plaintiffs have asserted medical monitoring
claims on behalf of current NFL players, those claims should be dismissed because
plaintiffs lack standing under Federal Rule of Civil Procedure 12(b)(1) to bring them.
“The doctrine of standing . . . requires federal courts to satisfy themselves that the
plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant
his invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S.
488, 493 (2009) (citations omitted). Thus, in putative class actions a class representative
“must be a member of the class which he or she seeks to represent.” Sosna v. Iowa, 419
U.S. 393, 403 (1975); see also Fed. R. Civ. P. 23(a) (same). Each subclass, in turn, must
also be “treated as a class,” and must therefore be represented by a named class
representative. Fed. R. Civ. P. 23(c)(5); Boone v. City of Philadelphia, 668 F. Supp. 2d
693, 706 (E.D. Pa. 2009).
Here, although the named plaintiffs consist only of former NFL players,
plaintiffs nonetheless seek to certify a subclass defined as, “All current NFL players”
who have or will experience a concussion and who have not been properly monitored
(“Subclass E”). (Am. Compl. ¶ 32; see also id. ¶ 59.) Because none of the named

40

plaintiffs is a current NFL player, and therefore no class representative exists for Subclass
E, the claims that plaintiffs seek to bring on behalf of this class must be dismissed due to
plaintiffs’ lack of standing. See Fanty v. Com. of Pa., Dept of Public Welfare, 551 F.2d
2, 7 n.4 (3d Cir. 1977) (dismissing claims where no class representatives were members
of subclasses); McDonough v. Toys ‘R’ Us, Inc., 638 F. Supp. 2d 461, 473 (E.D. Pa.
2009) (same).
Conclusion
For the foregoing reasons, the NFL respectfully submits that the Amended
Complaint should be dismissed with prejudice.
Dated: New York, New York
November 9, 2011

Respectfully submitted,
By:

/s/ Brad S. Karp

PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
Brad S. Karp
Theodore V. Wells, Jr.
Bruce Birenboim
Beth A. Wilkinson
Lynn B. Bayard
1285 Avenue of the Americas
New York, New York 10019-6064
[phone]
DUANE MORRIS LLP
John J. Soroko (Pa. Atty. ID 25987)
Dana B. Klinges (Pa. Atty. ID 57943)
30 South 17th Street
Philadelphia, PA 19103-4196
[phone]
Attorneys for Defendant

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