Dent v. Nat'l Football League

968 F.3d 1126

Richard DENT; Jeremy Newberry ; Roy Green; J. D. Hill; Keith Van Horne; Ron Stone; Ron Pritchard ; James McMahon; Marcellus Wiley, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v.NATIONAL FOOTBALL LEAGUE, a New York unincorporated association, Defendant-Appellee.

No. 19-16017

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2020 San Francisco, California

Filed August 7, 2020

William N. Sinclair (argued), Phillip J. Closius, Steven D. Silverman, and Andrew G. Slutkin, Silverman Thompson Slutkin & White LLC, Baltimore, Maryland, for Plaintiffs-Appellants.

Pratik A. Shah (argued), Daniel L. Nash, and James E. Tysse, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Allen J. Ruby, Jack P. DiCanio, and Patrick Hammon, Skadden Arps Slate Meagher & Flom LLP, Palo Alto, California; for Defendant-Appellee.

Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges.

TALLMAN, Circuit Judge:

Plaintiffs, nine former National Football League (NFL) players, represent a putative class of NFL athletes who played for any NFL-member Club between 1969 and 2014 and allegedly suffered injury from what they claim was a "return to play" business plan prescribed by the NFL. According to Plaintiffs’ Third Amended Complaint (TAC), the NFL negligently facilitated the hand-out of controlled substances to dull players’ pain and return them to the game after injury in order to maximize revenues by keeping marquee players on the field. The NFL allegedly conducted studies and promulgated rules regarding how Clubs should handle distribution of the medications at issue, but failed to ensure compliance with them, with medical ethics, or with federal laws such as the Controlled Substances Act, 21 U.S.C. § 801 et seq ., and the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq . We previously determined that Plaintiffs’ claims, as long as they relate to actions of the NFL itself, and not the Clubs, were not preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 141. See Dent v. Nat'l Football League , 902 F.3d 1109 (9th Cir. 2018) (hereinafter Dent I ). On remand from that decision, the district court remained convinced that Plaintiffs’ allegations center too heavily on the actions of the Clubs and granted the NFL's motion to dismiss for failure to state a claim against the NFL.

Plaintiffs now bring another appeal, challenging the district court's dismissal of their only remaining claim for negligence, which they argue they have sufficiently alleged under three different theories: negligence per se, voluntary undertaking, and special relationship. Though we agree with the district court that two of those theories were insufficiently pled, we conclude that Plaintiffs’ voluntary undertaking theory survives dismissal, given sufficient allegations in the TAC of the NFL's failure to "use its authority to provide routine and important safety measures" regarding distribution of medications and returning athletes to play after injury. Mayall ex rel. H.C. v. USA Water Polo, Inc. , 909 F.3d 1055, 1067 (9th Cir. 2018). If proven, a voluntary undertaking theory could establish a duty owed by the NFL to protect player safety after injury, breach of that duty by incentivizing premature return to play, and liability for resulting damages.

I

Plaintiffs initially filed suit against the NFL in May 2014, followed by an amendment a few months later. At that time, Plaintiffs’ claims included negligence (under a per se theory), negligent hiring and retention, negligent misrepresentation, fraud, and fraudulent concealment on behalf of a class of players who had "received or were administered" drugs by anyone affiliated with the NFL. See Dent I , 902 F.3d at 1115. Plaintiffs sought damages, injunctive and declaratory relief, and medical monitoring. Id. The NFL filed a motion to dismiss, arguing that Plaintiffs’ claims were preempted by § 301 of the Labor Management Relations Act (LMRA), which the district court granted. Id. at 1115–16.

On appeal in Dent I , we reversed the district court's preemption decision as to all claims, including negligence. Plaintiffs’ negligence claim was premised on a per se violation of federal statutes like the Controlled Substances Act (CSA) and the Food, Drug, and Cosmetic Act (FDCA), as well as corresponding state laws. Id. at 1117–18. We determined that, although the CSA and FDCA did not provide a cause of action, the NFL did have a duty to use "reasonable care in the handling, distribution, and administration of controlled substances," which arises from the "general character of [that] activity" and the "players’ right to receive medical care from the NFL that does not create an unreasonable risk of harm." Id . at 1118–19 (alteration in original). The claim was not preempted by § 301 of the LMRA because Plaintiffs’ allegations related to the NFL (not the member Clubs), and the NFL's duty to properly handle controlled substances was not defined by the Collective Bargaining Agreements (CBA) between the Clubs and players. Id . at 1121. Though some confusion naturally arose from the fact that the NFL is an unincorporated association comprised of the Clubs (thirty-two of them), and there is much overlap in the membership and governance of those entities by team owners, we instructed that any further proceedings in the case center on the actions of "the NFL and NFL personnel" alone. Id.

Upon remand, Plaintiffs amended their complaint again, to form the operative version on appeal: what is now the TAC.¹ The TAC is limited to a single remaining negligence claim; all other causes of action were voluntarily abandoned. At its core, the claim centers on the theory that "[t]he NFL was required to, or voluntarily undertook the duty to, comply with federal and state laws regulating the manner in which [pain] Medications were administered and distributed," and failed to do so because of its established "business culture in which everyone's financial interest depends on supplying Medications to keep players in the game." The medications at issue include opioids, non-steroidal anti-inflammatories (such as Toradol ), and anesthetics. Passages from the CSA and FDCA are cited in the TAC to bolster Plaintiffs’ negligence per se theory, and documents uncovered during the parallel Evans litigation against the Clubs are quoted to develop Plaintiffs’ narrative alleging the NFL's involvement in the putative drug-distribution scheme. One such document states that "reputational and financial interests ... and the nature of the sport combine to make opioid and other pain medication usage much more prevalent in the NFL than in virtually any other industry, population or endeavor," which "means that there is shared responsibility and joint culpability for the problem."

What is most striking about the TAC, the simplicity of Plaintiffs’ single legal claim notwithstanding, is the painstaking recitation of injuries sustained by Plaintiffs and the medications they recall receiving during their tenure with the NFL. For example, Plaintiff Jim McMahon, a player for six different NFL Club teams during his career, sustained shoulder injuries (among many others) that included dislocation, rotator cuff tears, tendonitis, bone spurs, osteoarthritis, and supraspinatus tears, and he recalls receiving "hundreds, if not thousands, of injections ... and pills," such as Percocet, Novocain, amphetamines, sleeping pills, muscle relaxers, and Toradol. An NFL-created document obtained by Plaintiffs purportedly notes that "the number of prescription medication pills provided to a player on a single occasion, [varies] from as few as one to as many as 40 pills at one time." The named Plaintiffs’ wide-ranging internal organ and musculoskeletal injuries, and substances distributed to manage those injuries (if true), are shocking, even to a reader familiar with the physically demanding nature of professional football and the resulting injuries from playing the game.

The NFL filed a motion to dismiss the TAC under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, which the district court granted in April 2019. The court's order reasoned that the TAC did not plausibly allege negligence under a per se theory because it did not provide evidence of "direct involvement in the handling, distribution, and administration" of controlled substances by "the NFL itself ." The order went on to swiftly dismiss Plaintiffs’ other theories, and thus their negligence claim altogether. Plaintiffs timely appealed.

We have jurisdiction under 28 U.S.C. § 1291 and review the district court's Rule 12(b)(6) dismissal de novo. See Lacey v. Maricopa County , 693 F.3d 896, 911 (9th Cir. 2012) (en banc).

II

In reviewing a complaint at the motion to dismiss stage, we "must accept all material allegations in the complaint as true, and construe them in the light most favorable to the non-moving party." Chubb Custom Ins. Co. v. Space Sys./Loral, Inc. , 710 F.3d 946, 956 (9th Cir. 2013). "To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). We note that "[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Dismissal is only proper where the allegations in the complaint do not factually support a cognizable legal theory. See Chubb Custom , 710 F.3d at 956.

Plaintiffs present three possible theories under which their action might proceed; we address each in turn.

A

Plaintiffs argue that, contrary to the district court's determination, they have sufficiently pled a negligence claim...