Can you grieve a tort claim?
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.
- Senior Counsel
Chris is an attorney with more than thirteen years of experience at law firms, in-house, and in academia, with extensive expertise in sports, litigation, and labor and employment. He represents and advises employers with respect to ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Kelly McGrath
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010