In December 2014, United States District Judge for the Northern District of California, the Honorable William Alsup, granted the National Football League’s (“NFL”) motion to dismiss based on preemption under Section 301 of the Labor Management Relations Act of 1947 (“LMRA”) in Dent v. NFL. Section 301 of the LMRA applies to breaches of collective bargaining agreements (“CBA”) between an employer and a labor organization, which result in federal law governing them. Section 301 seeks to create a uniform interpretation of CBAs by using federal law because of the excessive burden of creating an agreement that complies with every state’s laws. Furthermore, as Green v. Ariz. Cardinals Football Club, LLC, 21 F. Supp. 3d 1020, 1025 (E.D. Mo. 2014) noted, applying state law to CBA analyses “might lead to inconsistent results since there could be as many state law principles as there are States.” Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 693 (9th Cir. 2001) summed it up by declaring, “[A] state law claim is not preempted under [Section] 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute.”
The court in Dent found that all of plaintiffs’ claims were preempted under Section 301, and therefore the matter must be arbitrated in accordance with the CBA between the NFL and the National Football League Players Association (“NFLPA”). In deciding this way, the court tracked the expansion of player medical rights under the CBA and acknowledged the need to reference the CBA to prove whether the NFL has been negligent. It also noticed how the CBA allocates much of the health-related responsibilities to the individual teams, thus negating any duty at the League level.
Arbitration gives the NFL a noticeable advantage over the players, as both the NFLPA and the NFL Management Council must approve the arbitrators. See NFL CBA (2011) art. 44, § 7 at 195. Commentators have acknowledged that “[w]hile plaintiffs in employment disputes succeed in thirty-six percent of federal court cases, only twenty-five percent of such plaintiffs succeed through arbitration, with the average award being less than eighteen percent of what prevailing [plaintiffs] receive on average from federal courts.” John Guccione, Moving Past a “Pocket Change” Settlement: The Threat of Preemption and How the Loss of Chance Doctrine Can Help NFL Concussion Plaintiffs Prove Causation, 22 J.L. & Pol’y 907, 924 (2014). Arbitration also requires adjudication using contract law rather than tort law, making punitive damages unavailable to the players, which would help deter team physician medical malpractice in the future. Finally, arbitration requires the proceedings to be confidential, hindering the parties from disclosing the truth to the public. For example, during the concussion litigation, the NFL never had to admit any fault during the negotiations nor did it have to admit it knew of the dangers of repeated hits to the head.
Because of the difficulty of circumventing the CBA, legitimate medical malpractice claims against team physicians often pass without the NFL having to disclose hardly any information regarding the specifics of the incident(s). Thus, arbitration has the potential to continually allow the NFL to provide inadequate medical care to its players and not confront the inherent problem of team physicians serving both the player and the team simultaneously.
