Employment & Labor Insider

Tyus Bowser had a respectable career in the National Football League, playing in 98 games over seven seasons with the Baltimore Ravens, Seattle Seahawks, and Miami Dolphins. Nevertheless, he contends his career was cut short after doctors affiliated with the Ravens provided negligent treatment for a 2023 knee injury. The Ravens had designated Bowser’s injury as “non-football-related.” 

In a lawsuit recently filed in Texas state court, Mr. Bowser now also contends that the NFL Players Association failed to properly pursue a grievance over the Ravens’ designation of his injury.

A medical and legal morass

Mr. Bowser suffered a knee injury in the 2023 off-season, the details of which are notably omitted from his lawsuit. The Ravens then designated the injury as “non-football-related” in a letter dated July 18, 2023, and in a roster designation on August 29, 2023. 

Although the collective bargaining agreement between the NFL and the Players Association does not define a “non-football-related injury,” the term seems obvious (until lawyers are involved).  The designation is important because a player is not paid once he is placed on the Nonfootball Injury or Illness List. Mr. Bowser was due to be paid approximately $5.5 million in each of the 2023 and 2024 seasons, and thus faced serious financial consequences as a result of the designation.

The collective bargaining agreement has different filing deadlines depending on the type of grievance. Under Article 43, Non-Injury Grievances (which encompasses most disputes) must be filed within 50 days of the relevant act or omission. Under Article 44, Injury Grievances must be filed within 25 days of the termination of a player’s contract. Injury Grievances are those where a player claims “that, at the time a player’s NFL Player Contract or Practice Squad Player Contract was terminated by a Club, the player was physically unable to perform the services required of him by that contract because of an injury incurred in the performance of his services under that contract.”

Mr. Bowser did not file any type of grievance in the fall of 2023 to challenge the Ravens’ designation.

He missed the 2023 season while trying to rehabilitate his knee. In the course of that treatment, Mr. Bowser alleges that he learned that his knee issues were caused by a staph infection “contracted during a medical treatment by the Club.” 

(Staph infections have been a serious problem in the past for NFL locker rooms – in 2010, the Cleveland Browns settled a lawsuit with former wide receiver Joe Jurevicius concerning a staph infection. In 2017, the Tampa Bay Buccaneers did the same with former kicker Lawrence Tynes.  As a result of those incidents, the NFL and the Players Association consulted with the Duke Infection Control Outreach Network on best practices for infectious diseases.)

On March 13, 2024, according to Mr. Bowser, “the Ravens terminated Bowser’s contract after he refused to provide the Club with copies of his outside medical records.” Mr. Bowser’s refusal is seemingly at odds with the provision in the contract that permits a player to obtain second opinions and to select the surgeon of his choice, so long as he consults with the team’s doctor and provides a report on his condition and diagnosis.

On April 4, 2024, the Players Association filed a grievance on Mr. Bowser’s behalf challenging the 2023 preseason designation that his injury was non-football-related.

The NFL responded by arguing that the grievance was untimely, citing a litany of established precedent.

At some point, the Players Association apparently agreed and allegedly dismissed the grievance without consulting Mr. Bowser.

The union’s duty

Mr. Bowser’s complaint against the Players Association, as well as the union attorney who was responsible for dismissing the grievance, asserts three causes of action: (1) breach of the duty of fair representation, (2) negligence/legal malpractice, and (3) breach of fiduciary duty.

As explained in the lawsuit, under the National Labor Relations Act, the Players Association is the exclusive representative of NFL players for purposes of negotiating the terms and conditions of employment with NFL clubs. Under controlling Supreme Court precedent (here, here), that status obligates the union to represent all of its members fairly, in good faith, and without discrimination.

The Players Association has been here before in a case that will undoubtedly serve as useful precedent. In 1978, the union filed a grievance on behalf of James Peterson, a linebacker for the Tampa Bay Buccaneers. Mr. Peterson suffered an injury during the 1976 season. His contract was terminated during the 1977 training camp after he had passed a preseason physical. 

The union filed an Injury Grievance on Mr. Peterson’s behalf within two weeks, in August 1977.  However, the union realized in February 1978 that the grievance should have been filed as a Non-Injury Grievance, the statute of limitations for which had since passed. An arbitrator therefore dismissed the grievance.

Mr. Peterson sued the union and its attorney, alleging a breach of the duty of fair representation.  A jury agreed with him, but the court vacated the verdict, finding the evidence insufficient. The U.S. Court of Appeals for the Ninth Circuit affirmed, restating “the established principle that a union's negligence cannot give rise to a suit for breach of the duty of fair representation.”

Will Mr. Bowser be bounced?

Mr. Bowser’s lawsuit seems likely to suffer the same fate as his predecessor’s. The Players Association did not pursue a Non-Injury Grievance on Mr. Bowser’s behalf in the fall of 2023 when he was initially placed on the Nonfootball Injury or Illness List. But it would have needed for Mr. Bowser to tell them that the designation was not appropriate – and his complaint makes no allegation that he did.

It is unclear why the Players Association thought the filing of the Non-Injury Grievance on that issue would have been timely. Moreover, there was perhaps a basis to file an Injury Grievance at that time.

In any event, nothing in the lawsuit suggests that the Players Association treated Mr. Bowser’s case poorly because of hostility toward him. At worst, the union may have been negligent, but mere negligence is not enough for the fair representation claim.

In addition, the negligence/legal malpractice and breach of fiduciary duty claims are probably preempted by the NLRA as “disguised” fair representation claims, among other possible deficiencies.