Briefing was recently completed in a case between a pro football player and the National Football League that could have ramifications for the resolution of future player-league disputes.
During the Monday Night Football game on October 17, 2022, between the Denver Broncos and the Los Angeles Chargers, Broncos’ linebacker Aaron Patrick tried to make a tackle near the sideline on a punt. He tripped over television cables and mats, and collided with the NFL’s television liaison, the person responsible for coordinating commercial breaks. Unfortunately, Mr. Patrick, an undrafted second-year player, tore his anterior cruciate ligament (better known as “ACL”) in the process, a potentially career-ending injury.
The NFL’s preemption playbook
On November 15, Mr. Patrick sued the NFL, ESPN, the Chargers and the entities that own and operate their stadium, and others, for negligence and premises liability. The NFL and Chargers removed the case, which was originally filed in California state court, to federal court and asked to have the case dismissed, arguing that Mr. Patrick’s claims are preempted by the collective bargaining agreement between the NFL and the NFL Players Association. Mr. Patrick responded with a motion to send the case back to state court.
The NFL/Chargers motion is a familiar one. Whenever the NFL or one of its clubs is sued by a player in court, they argue that the claims (usually state common law tort claims) are “preempted” by Section 301 of the Labor Management Relations Act. Under well-established and controlling Supreme Court precedent, any claim whose resolution is “substantially dependent upon analysis of the terms of” a collective bargaining agreement is preempted. In other words, claims that are “inextricably intertwined” with the terms and provisions of the agreement cannot proceed in court. The intended and frequent result is dismissal of the claims.
The plaintiff-players – including Mr. Patrick – cannot overcome this standard directly. Instead, the parties argue over whether analysis of the claims actually requires interpretation of the agreement. In Mr. Patrick’s case, the NFL and the Chargers argue that the court would be required to analyze Article 39, Section 11, of the agreement. That section establishes and discusses the responsibilities of the joint NFL-Players Association Field Surface Safety & Performance Committee, which establishes and enforces playing field standards, known as the Mandatory Practices.
The NFL and the Chargers contend that the court cannot evaluate whether they were negligent without evaluating whether they complied with the Mandatory Practices. Thus, they argue, Mr. Patrick’s claim is really a breach of contract claim masquerading as a tort claim.
In response, Mr. Patrick argues that “[t]his is a straightforward ‘slip-and-fall’ case,” and that the court should not get distracted by the fact that it occurred during a Monday Night Football game. According to Mr. Patrick, “the claims are garden-variety negligence and premises liability claims that turn simply on whether reasonable live-events broadcast producers would have placed their cords, cables, mats, and personnel which Patrick fell over in similar positions.” Such claims, in Mr. Patrick’s view, do not require analysis of the collective bargaining agreement and thus are not preempted.
The parties dispute whether past cases involving NFL players apply. Perhaps of most relevance is the case of former NFL running back Reggie Bush. In 2016, Mr. Bush sued the St. Louis Rams and their stadium authority when, at the conclusion of a play, he slipped and fell on a concrete surface surrounding the playing field, injuring his knee. A federal court rejected the Rams’ arguments that Mr. Bush’s claims were preempted by the collective bargaining agreement.
In Mr. Patrick’s case, the NFL and the Chargers argue that the Bush court got it wrong. They also note that the Bush case was evaluated under an older agreement that did not include the joint Field Surface Safety & Performance Committee.
Can one grieve a tort claim?
There are bigger issues here concerning the dispute resolution mechanisms under the collective bargaining agreement. The purpose of preemption, as articulated by the Supreme Court, is “to promote the peaceable, consistent resolution of labor-management disputes” via the processes outlined in the agreement. But can one “grieve” a tort claim? The NFL says yes, but Mr. Patrick disagrees. He cites and attaches decisions from 1986 and 1988 in which arbitrators ruled that tort claims brought by NFL players against the NFL and its clubs could not be addressed in arbitration.
The now-settled class action litigation concerning player concussions danced around but did not resolve this issue. The NFL moved to dismiss the plaintiffs’ claims in that case on preemption grounds and by arguing that the claims should have been arbitrated. But the NFL did not explicitly say that an arbitrator would ultimately have jurisdiction to decide the case on its merits.
In approving the settlement of the concussion case, the courts did not seem to fully grasp the issue. The district court stated that a “preemption ruling in this [case] would necessarily require… Plaintiffs to resolve their claims through arbitration rather than in federal court because the CBAs contain mandatory arbitration provisions.” The U.S. Court of Appeals for the Third Circuit affirmed this view. Neither decision addressed the unsettled law regarding whether tort claims could be brought in arbitration.
The NFL collective bargaining agreement has been amended numerous times since the 1980s, and the provisions addressing player health in particular have grown enormously, lending more force to a preemption argument. But interestingly, in its reply brief in the Patrick case, the NFL does not say that the 1980s arbitration decisions no longer apply. Instead, the NFL simply argues that whether Mr. Patrick’s claims could hold up under the agreement is not the appropriate test for preemption.
The statute of limitations problem
The NFL moved to dismiss Mr. Patrick’s claims, not to compel them to arbitration. In its reply brief, the NFL does not address the fact that claims brought under the collective bargaining agreement could fail on statute of limitations grounds. For decades, the agreements have required that grievances be brought within 50 days “from the date of the occurrence or non-occurrence upon which the grievance is based” or from when the player knew or should have known the facts supporting the grievance. This time limitation would have been fatal to the claims brought by the concussion litigants, a fact that the courts in that case did not address.
Although Mr. Patrick filed suit less than 50 days after his accident, he has not filed a grievance.
The underlying arbitration provision
One problem for the NFL and the Chargers is the arguably narrow arbitration provision in the CBA. Article 43 of the CBA, the controlling grievance mechanism in most situations, requires the following:
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, the Practice Squad Player Contract, or any applicable provision of the NFL Constitution and Bylaws or NFL Rules pertaining to the terms and conditions of employment of NFL players, will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement.
The provision, on its face, seems to be limited to contractual disputes. A standard arbitration provision in the employment context requires arbitration of any dispute arising out of or related to the employee’s employment. Although the quoted provision applies to “the NFL Constitution and Bylaws or NFL Rules pertaining to the terms and conditions of employment of NFL players,” it could have been drafted in a way that encompassed more clearly claims like Mr. Patrick’s.
Ready for kickoff
The Aaron Patrick case presents a challenging set of facts and arguments for the court, not all of which are addressed above. If the NFL loses, it may both appeal and move to compel arbitration (knowing that Mr. Patrick has not filed a timely grievance). If Mr. Patrick loses, he too could appeal but may also choose to file a grievance, arguing that his lawsuit should toll the statute of limitations. Either way, the case presents the opportunity for a court to clarify the bounds of the NFL’s collective bargaining agreement.