Richard Dent v. Nfl

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD DENT; JEREMY NEWBERRY; No. 15-15143
ROY GREEN; J. D. HILL; KEITH VAN
HORNE; RON STONE; RON D.C. No.
PRITCHARD; JAMES MCMAHON; 3:14-cv-02324-
MARCELLUS WILEY; JONATHAN REX WHA
HADNOT, JR., On Behalf of
Themselves and All Others Similarly
Situated, OPINION
Plaintiffs-Appellants,

v.

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

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Argued and Submitted December 15, 2016
San Francisco, California

Filed September 6, 2018
2 DENT V. NFL

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

Opinion by Judge Tallman

SUMMARY **

Labor Law

The panel reversed the district court’s dismissal on
preemption grounds of an action alleging a variety of state-
law claims brought against the National Football League
(“NFL”) by former professional football players, and
remanded for further proceedings.

The putative class of retired NFL players alleged that the
NFL distributed controlled substances and prescription
drugs to its players in violation of both state and federal laws,
and that the manner in which these drugs were administered
left the players with permanent injuries and chronic medical
conditions.

The panel held that the district court erred in holding that
the players’ claims were preempted by § 301 of the Labor
Management Relations Act. The panel held that as pled, the

*
Judge Tallman was drawn to replace Circuit Judge Alex Kozinski
when Judge Kozinski retired. Judge Tallman has read the briefs and
viewed the digital recording of oral argument. The panel has also
reconferenced on the case.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 DENT V. NFL 3

players’ claims neither arose from collective bargaining
agreements (“CBA”) nor required their interpretation.
Specifically, the panel held that plaintiffs’ negligence claim
regarding the NFL’s alleged violation of federal and state
laws governing controlled substances was not preempted by
§ 301. The panel also held that the players’ negligent hiring
and retention claims, and their negligent misrepresentation
claim, were not preempted because they could be evaluated
without interpreting the CBAs. The panel further held that
the NFL had not identified any CBA provisions that must be
interpreted in order to resolve the players’ fraud claims, and
resolving those claims did not require interpreting CBA
provisions.

The panel held that the players’ loss of consortium claim,
and their requests for declaratory judgment and medical
monitoring were derivative of their other claims. Because
those claims were not preempted, the panel reversed the
dismissal of the derivative claims and remanded.

The panel rejected the NFL’s argument that the dismissal
should be affirmed on the ground that the players failed to
exhaust the grievance procedures required by the CBAs.

COUNSEL

Phillip J. Closius (argued), Andrew G. Slutkin, Steven D.
Silverman, Stephen G. Grygiel, and William N. Sinclair,
Silverman Thompson Slutkin & White, Baltimore,
Maryland; Mark J. Dearman and Stuart Andrew Davidson,
Robbins Geller Rudman, Boca Raton, Florida; for Plaintiffs-
Appellants.
4 DENT V. NFL

Paul D. Clement (argued), Washington, D.C.; Daniel Nash,
Stacey R. Eisenstein, James E. Tysse, Marla S. Axelrod, and
Elizabeth England, Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C.; Rex S. Heinke and Gregory W. Knopp,
Akin Gump Strauss Hauer & Feld LLP, Los Angeles,
California; Allen J. Ruby, Jack P. DiCanio, and Timothy A.
Miller, Skadden Arps Slate Meagher & Flom LLP, Palo
Alto, California; for Defendant-Appellee.

OPINION

TALLMAN, Circuit Judge:

This appeal requires us to decide whether a variety of
state-law claims brought against the National Football
League (NFL) by former professional football players are
preempted by § 301 of the Labor Management Relations Act
(LMRA), 29 U.S.C. § 141.

The district court held that the players’ claims are
preempted and dismissed their suit. We disagree. As pled,
the players’ claims neither arise from collective bargaining
agreements (CBAs) nor require their interpretation.
Therefore, we reverse and remand for further proceedings.

I

The NFL is an unincorporated association of thirty-two
independently owned and operated football “clubs,” or
teams. The NFL “promotes, organizes, and regulates
professional football in the United States,” Williams v. Nat’l
Football League, 582 F.3d 863, 868 (8th Cir. 2009), but it
 DENT V. NFL 5

does not employ individual football players; they are
employees of the teams for whom they play.

Richard Dent is a retired football player who played on
four different NFL teams during his fourteen-year career.
During that time, doctors and trainers allegedly gave him
“hundreds, if not thousands” of injections and pills
containing powerful painkillers in an effort to keep him on
the field. According to Dent, he was never warned about the
potential side effects or long-term risks of the medications
he was given, and he ended his career with an enlarged heart,
permanent nerve damage in his foot, and an addiction to
painkillers.

Since 1968, the NFL, its member teams, and NFL
players have been bound by a series of CBAs 1 negotiated by
the NFL Players’ Association (the players’ bargaining unit)
and the NFL Management Council (the teams’ bargaining
unit). 2 Since 1982, the CBAs have included provisions
regarding “players’ rights to medical care and treatment.”
Those provisions have changed somewhat over the years,
but generally speaking, they have required teams to employ
board-certified orthopedic surgeons and trainers who are
certified by the National Athletic Trainers Association, and
they have guaranteed players the right to access their
medical records, obtain second opinions, and choose their
own surgeons. The CBAs impose certain disclosure
requirements on team doctors; for example, the 1982 CBA

1
There have been two periods of time when a CBA was not in force:
from August 1987 to March 1993, and from March 2011 to August 2011.
Those gaps in CBA coverage are irrelevant to this action.
2
Until 2011, the NFL itself was not a signatory to the CBAs.
However, even prior to 2011, the CBAs were binding on all the relevant
entities, including the NFL.
6 DENT V. NFL

established that “[i]f a Club physician advise[d] a coach or
other Club representative of a player’s physical condition
which could adversely affect the player’s performance or
health, the physician [would] also advise the player.” The
1993 CBA added the requirement that “[i]f such condition
could be significantly aggravated by continued performance,
the physician [would] advise the player of such fact in
writing.” The 2011 CBA established that team physicians
“are required to disclose to a player any and all information
about the player’s physical condition” that the physicians
disclose to coaches or other team representatives, “whether
or not such information affects the player’s performance or
health.”

In 2014, Dent and nine other retired players filed a
putative class action suit against the NFL in the Northern
District of California, seeking to represent a class of more
than 1,000 former players. They alleged that since 1969, the
NFL has distributed controlled substances and prescription
drugs to its players in violation of both state and federal laws,
and that the manner in which these drugs were administered
left the players with permanent injuries and chronic medical
conditions.

Like Dent, the other named plaintiffs allege that during
their years in the NFL, they received copious amounts of
opioids, non-steroidal anti-inflammatory medications, and
local anesthetics. The complaint claims the NFL encouraged
players to take these pain-masking medications to keep
players on the field and revenues high, even as the football
season got longer and the time between games got shorter,
increasing their chances of injury. According to the players,
they “rarely, if ever, received written prescriptions . . . for
the medications they were receiving.” Instead, they say they
were handed pills in “small manila envelopes that often had
 DENT V. NFL 7

no directions or labeling” and were told to take whatever was
in the envelopes. During their years of consuming these
powerful medications, it is further alleged that no one from
the NFL warned them about potential side effects, long-term
risks, interactions with other drugs, or the likelihood of
addiction. The plaintiffs claim that as a result of their use
(and overuse) of these drugs, retired players suffer from
permanent orthopedic injuries, drug addictions, heart
problems, nerve damage, and renal failure.

Each team hires doctors and trainers who attend to
players’ medical needs. Those individuals are employees of
the teams, not the NFL. But the players’ Second Amended
Complaint (SAC) asserts that the NFL itself directly
provided medical care and supplied drugs to players. For
example, the SAC alleges that:

• “The NFL directly and indirectly supplied players
with and encouraged players to use opioids to
manage pain before, during and after games in a
manner the NFL knew or should have known
constituted a misuse of the medications and violated
Federal drug laws.”

• “The NFL directly and indirectly administered
Toradol on game days to injured players to mask
their pain.”

• “The NFL directly and indirectly supplied players
with NSAIDs, and otherwise encouraged players to
rely upon NSAIDs, to manage pain without regard to
the players’ medical history, potentially fatal drug
interactions or long-term health consequences of that
reliance.”
8 DENT V. NFL

• “The NFL directly and indirectly supplied players
with local anesthetic medications to mask pain and
other symptoms stemming from musculoskeletal
injury when the NFL knew that doing so constituted
a dangerous misuse of such medications.”

• “NFL doctors and trainers gave players medications
without telling them what they were taking or the
possible side effects and without proper
recordkeeping. Moreover, they did so in excess,
fostering self-medication.”

• “[M]edications are controlled by the NFL Security
Office in New York . . . .”

• “The NFL made knowing and intentional
misrepresentations, including deliberate omissions,
about the use and distribution of the Medications.”

The named plaintiffs sought to represent a class of
plaintiffs who had “received or were administered” drugs by
anyone affiliated with the NFL or an NFL team. They filed
claims for negligence per se, negligent hiring and retention,
negligent misrepresentation, fraudulent concealment, fraud,
and loss of consortium. They sought relief including
damages, injunctive relief, declaratory relief, and medical
monitoring.

The NFL filed two motions to dismiss, one arguing that
the players’ claims were preempted by § 301 of the LMRA
and the other arguing that the players failed to state a claim
and their claims were time barred. The district court held a
hearing on the preemption issue. It granted the NFL’s
motion to dismiss on preemption grounds and denied the
NFL’s other motion to dismiss as moot. The players timely
appealed.
 DENT V. NFL 9

We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s finding of preemption
under § 301. Cramer v. Consol. Freightways, Inc., 255 F.3d
683, 689 (9th Cir. 2001), as amended (Aug. 27, 2001).

II

Section 301 of the LMRA is a jurisdictional statute that
has been interpreted as “a congressional mandate to the
federal courts to fashion a body of federal common law to be
used to address disputes arising out of labor contracts.”
Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,
1032 (9th Cir. 2016) (quoting Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 209 (1985)). Congress intended for
§ 301 to “protect the primacy of grievance and arbitration as
the forum for resolving CBA disputes and the substantive
supremacy of federal law within that forum.” Alaska
Airlines Inc. v. Schurke, — F.3d —, No. 13-35574, 2018 WL
3636431, at *7 (9th Cir. Aug. 1, 2018) (en banc) (emphasis
omitted). Accordingly, § 301 preempts state-law claims
“founded directly on rights created by collective-bargaining
agreements, and also claims ‘substantially dependent on
analysis of a collective-bargaining agreement.’” 3
Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987)
(quoting Int’l Bhd. of Elec. Workers v. Hechler, 481 U.S.
851, 859 n.3 (1987)). Conversely, claims are not preempted
where the rights at issue are “conferred by state law,
independent of the CBAs” and “the matter at hand can be

3
Section 301 preemption has a long history, which we will not fully
recount here. An interested reader may refer to our opinions in Kobold,
832 F.3d 1024, Burnside v. Kiewit Pac. Corp., 491 F.3d 1053 (9th Cir.
2007), and Cramer, 255 F.3d 683, for more information on the history
of the LMRA and the development of the preemption doctrine.
10 DENT V. NFL

resolved without interpreting the CBAs.” Burnside, 491
F.3d at 1058.

We conduct a two-step inquiry to determine whether
state-law claims are preempted by § 301. First, we ask
whether the cause of action involves “rights conferred upon
an employee by virtue of state law, not by a CBA.” Id. at
1059. If the rights at issue “exist[] solely as a result of the
CBA, then the claim is preempted, and our analysis ends
there.” Id.

Second, if the right exists independently of the CBA, we
“ask whether litigating the state law claim nonetheless
requires interpretation of a CBA, such that resolving the
entire claim in court threatens the proper role of grievance
and arbitration.” Schurke, 2018 WL 3636431, at *8. A
claim that requires interpretation of a collective bargaining
agreement is preempted. Burnside, 491 F.3d at 1059–60.
“‘Interpretation’ is construed narrowly; it means something
more than ‘consider,’ ‘refer to,’ or ‘apply.’” Schurke, 2018
WL 3636431, at *8. (quotation omitted). At this second step,
“claims are only preempted to the extent that there is an
active dispute over the meaning of contract terms. A
hypothetical connection between the claim and the terms of
the CBA is not enough to preempt the claim . . . .” Id.
(quotations omitted).

“The plaintiff’s claim is the touchstone” of the § 301
preemption analysis; “the need to interpret the CBA must
inhere in the nature of the plaintiff’s claim.” Cramer,
255 F.3d at 691. Therefore, a defense based on a CBA does
not give rise to preemption. Caterpillar, 482 U.S. at 300.
Moreover, “a CBA provision does not trigger preemption
when it is only potentially relevant to the state law claims,
without any guarantee that interpretation or direct reliance
on the CBA terms will occur.” Humble v. Boeing Co.,
 DENT V. NFL 11

305 F.3d 1004, 1010 (9th Cir. 2012). Rather, “adjudication
of the claim must require interpretation of a provision of the
CBA.” Cramer, 255 F.3d at 691–92.

Merely consulting a CBA (to, for example, calculate
damages or ascertain that an issue is not addressed by the
CBA) does not constitute “interpretation” of the CBA for
preemption purposes. See Livadas v. Bradshaw, 512 U.S.
107, 125 (1994); Cramer, 255 F.3d at 693. Similarly, “[t]he
need for a purely factual inquiry” that “does not turn on the
meaning of any provision of a collective bargaining
agreement . . . is not cause for preemption” under § 301.
Burnside, 491 F.3d at 1072 (quotation omitted); see also
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407
(1988) (“Each of these purely factual questions pertains to
the conduct of the employee and the conduct and motivation
of the employer. Neither of the elements requires a court to
interpret any term of a collective-bargaining agreement.”).

In sum, for each of the players’ claims, we must
determine whether the claim arises from the CBAs and, if
not, whether establishing the elements of the claim will
require interpretation of the CBAs. Burnside, 491 F.3d at
1059–60. Because this case was decided on a motion to
dismiss, as we perform this analysis we must take the SAC’s
allegations as true and construe them in the light most
favorable to the plaintiffs. See, e.g., Kwan v. SanMedica
Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). We must also be
mindful of the fact that the “LMRA § 301 forum preemption
inquiry is not an inquiry into the merits of a claim; it is an
inquiry into the claim’s ‘legal character’—whatever its
merits—so as to ensure it is decided in the proper forum.”
Schurke, 2018 WL 3636431, at *10 (quoting Livadas,
512 U.S. at 123–24). Therefore, “[o]ur only job is to decide
whether, as pleaded, the claim in this case is ‘independent’
12 DENT V. NFL

of the CBA in the sense of ‘independent’ that matters for
preemption purposes: resolution of the state-law claim does
not require construing the collective-bargaining
agreement.’” Id. (alteration omitted) (quoting Lingle,
486 U.S. at 407).

A

To state a claim for negligence in California, 4 a plaintiff
must establish the following elements: (1) the defendant had
a duty, or an “obligation to conform to a certain standard of
conduct for the protection of others against unreasonable
risks,” (2) the defendant breached that duty, (3) that breach
proximately caused the plaintiff’s injuries, and (4) damages.
Coarles v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009)
(quoting McGarry v. Sax, 70 Cal. Rptr. 3d 519, 530 (Ct. App.
2008)).

The plaintiffs have styled their negligence claim as one
for “negligence per se,” but under California law, negligence
per se is a doctrine, not an independent cause of action.
Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 144–45
(Ct. App. 2006). Therefore, we construe the players’ claim
as a traditional negligence claim, but apply the negligence
per se doctrine.

Under that doctrine, a statute may establish the standard
of care. Therefore, the defendant’s violation of a statute can
give rise to a presumption that it failed to exercise due care
if it “violated a statute, ordinance, or regulation of a public
entity,” that violation proximately caused an injury, the

4
Because plaintiffs seek to represent a nationwide class but have not
identified the specific states whose laws govern their claims, we follow
the district court in applying California law for illustrative purposes.
 DENT V. NFL 13

injury “resulted from an occurrence of the nature which the
statute, ordinance, or regulation was designed to prevent,”
and the person who suffered the injury “was one of the class
of persons for whose protection the statute, ordinance, or
regulation was adopted.” Cal. Evid. Code § 699(a); see also
Elsner v. Uveges, 102 P.3d 915, 927 (Cal. 2004). Many state
and federal laws govern the administration of controlled
substances to alleviate pain.

The players argue that they were injured by the NFL’s
“provision and administration” of controlled substances
without written prescriptions, proper labeling, or warnings
regarding side effects and long-term risks, and that this
conduct violated the Controlled Substances Act, 21 U.S.C.
§ 801 et seq.; the Food, Drugs, and Cosmetics Act, 21 U.S.C.
§ 301 et seq.; and the California Pharmacy Laws, Cal. Bus.
& Prof. Code § 4000 et seq.

The district court believed that the “essence” of the
plaintiffs’ negligence claim “is that the individual clubs
mistreated their players and the league was negligent in
failing to intervene and stop their alleged mistreatment.”
However, as we read the complaint, the plaintiffs are not
merely alleging that the NFL failed to prevent medication
abuse by the teams, but that the NFL itself illegally
distributed controlled substances, and therefore its actions
directly injured players. The SAC alleges that the NFL
“directly and indirectly supplied players” with drugs. It also
alleges that the NFL implemented a “League-wide policy”
regarding Toradol, that “medications are controlled by the
NFL Security Office in New York,” that “the NFL
coordinat[ed] the illegal distribution of painkillers and anti-
inflammatories for decades,” and that “NFL doctors and
14 DENT V. NFL

trainers” gave players medications “without telling them
what they were taking or the possible side effects.” 5

With that reading of the complaint in mind, we turn to
the question whether the plaintiffs’ negligence claim is
preempted.

The first question is whether the right at issue—the
players’ right to receive medical care from the NFL that does
not create an unreasonable risk of harm—arises from the
CBAs. See Burnside, 491 F.3d at 1059. It does not. The
CBAs do not require the NFL to provide medical care to
players, and the players are not arguing that they do. They
are not arguing that the NFL violated the CBAs at all, but
that it violated state and federal laws governing prescription
drugs.

The next question is whether the plaintiffs’ claim
nevertheless requires interpretation of the CBAs. See id. To
answer it, we ask whether the plaintiffs can make out each
element of a prima facie case for negligence without
interpretation of the CBA.

As for the first element, “[a] duty of care may arise
through statute or by contract.” J’Aire Corp. v. Gregory,
598 P.2d 60, 62 (Cal. 1979). It may also be based on “the
general character of the activity in which the defendant
engaged.” Id. California courts consider several factors
when deciding whether a duty exists, including

5
The NFL argues that the doctors and trainers who actually provided
medications to players were employees of the teams, not the NFL. But
at this stage of the litigation, we must take the allegations in the SAC as
true. See Kwan, 854 F.3d at 1096.
 DENT V. NFL 15

the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered
injury, the closeness of the connection
between the defendant’s conduct and the
injury suffered, the moral blame attached to
the defendant’s conduct, the policy of
preventing future harm, the extent of the
burden to the defendant and the
consequences to the community of imposing
a duty to exercise care with resulting liability
for breach, and the availability, cost and
prevalence of insurance for the risk involved.

Regents of Univ. of Cal. v. Superior Court, 413 P.3d 656,
670 (Cal. 2018) (quoting Rowland v. Christian, 443 P.2d
561, 564 (Cal. 1968)). These factors “must be evaluated at
a relatively broad level of factual generality.” Id. (quotation
omitted).

Here, any duty to exercise reasonable care in the
distribution of medications does not arise through statute or
by contract; no statute explicitly establishes such a duty, and
as already noted, none of the CBAs impose such a duty.
However, we believe that a duty binding on the NFL—or
any entity involved in the distribution of controlled
substances—to conduct its activities with reasonable care
arises from “the general character of [that] activity.” See
J’Aire Corp., 598 P.2d at 62. Applying the Rowland factors,
lack of reasonable care in the handling, distribution, and
administration of controlled substances can foreseeably
harm the individuals who take them. That’s why they’re
“controlled” in the first place—overuse or misuse can lead
to addictions and long-term health problems. See, e.g.,
21 U.S.C. §§ 801(2), 812. These types of injuries can be
16 DENT V. NFL

established with certainty, and they are closely connected to
the misuse of controlled substances.

Carelessness in the handling of dangerous substances is
both illegal and morally blameworthy, given the risk of
injury it entails. Imposing liability on those involved in
improper prescription-drug distribution will prevent harm by
encouraging responsible entities to ensure that drugs are
administered safely. And it will not represent an undue
burden on such entities, which should already be complying
with the laws governing prescription drugs and controlled
substances. Thus, we conclude that to the extent the NFL is
involved in the distribution of controlled substances, it has a
duty to conduct such activities with reasonable care.

Of course, establishing that an entity owes a duty does
not necessarily establish what standard of care applies, or
whether it was breached. But when it comes to the
distribution of potentially dangerous drugs, minimum
standards are established by statute. The Controlled
Substances Act, 21 U.S.C. § 801 et seq.; the Food, Drugs,
and Cosmetics Act, 21 U.S.C. § 301 et seq.; and the
California Pharmacy Laws, Cal. Bus. & Prof. Code § 4000
et seq., set forth requirements governing how drugs are to be
prescribed and labeled. 6 21 U.S.C. §§ 331, 352, 353(b)(1),
825, 829. Therefore, under the plaintiffs’ negligence per se
theory, whether the NFL breached its duty to handle drugs
with reasonable care can be determined by comparing the
conduct of the NFL to the requirements of the statutes at

6
The NFL argues that these statutes do not apply to the NFL. But
this argument goes to the merits of the plaintiffs’ negligence per se theory
and not to § 301 preemption. We need not and do not consider it here.
 DENT V. NFL 17

issue. There is no need to look to, let alone interpret, the
CBAs.

As for causation, whether the NFL’s alleged violation of
the statutes caused the plaintiffs’ injuries is a “purely factual
question[]” that “do[es] not ‘requir[e] a court to interpret any
term of a collective-bargaining agreement.’” Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994) (quoting
Lingle, 486 U.S. at 407).

The Eighth Circuit reached a similar conclusion in
Williams, 582 F.3d 863. There, NFL players who had been
suspended after testing positive for a banned substance
brought a variety of claims against the NFL, including
common-law claims and a state-law claim based on a
Minnesota statute governing drug testing. Id. at 872–73.
The NFL argued that all the claims were preempted by
§ 301, but the Eighth Circuit held that the statutory claim
was not preempted, because “a court would have no need to
consult the [CBA] in order to resolve the Players’ [statutory]
claim.” Id. at 876. Instead, “it would compare the facts and
the procedure that the NFL actually followed with respect to
its drug testing of the Players with [the statute’s]
requirements.” Id. Similarly, here, a court would have no
need to consult the CBAs to resolve the plaintiffs’
negligence claim. Instead, it would compare the NFL’s
conduct with the requirements of state and federal laws
governing the distribution of prescription drugs.

We recognize that the Eighth Circuit held that the
Williams plaintiffs’ common-law claims, including a
negligence claim, were preempted by § 301. Id. at 881–82.
But that negligence claim is distinguishable from the claim
here. There, the plaintiffs argued that the NFL was negligent
because it failed to warn players that a certain supplement
contained a banned substance. Id. at 881. But the players
18 DENT V. NFL

had procured the supplements on their own; in fact, they
were taking supplements against the advice of the NFL. Id.
at 869. The Eighth Circuit held that under these
circumstances, determining whether the NFL had a duty to
warn players about the supplement would require
“examining the parties’ legal relationship and expectations
as established by the CBA and the [Drug] Policy,” which
explicitly stated that players who took supplements did so
“at [their] own risk.” Id. at 869, 881.

Here, on the other hand, no examination of the CBAs is
necessary to determine that distributing controlled
substances is an activity that gives rise to a duty of care. The
NFL has a duty to avoid creating unreasonable risks of harm
when distributing controlled substances that is completely
independent of the CBAs. Therefore, unlike in Williams, no
CBA interpretation is required to determine whether the
NFL owed the players a duty and whether it breached that
duty. 7

7
The NFL also points to Atwater v. Nat’l Football League Players
Ass’n, 626 F.3d 1170 (11th Cir. 2010). There, the Eleventh Circuit held
that a negligence claim arising from the NFL’s vetting of financial
advisors was preempted by § 301. But in Atwater, the NFL’s duty to
perform such vetting arose from the CBA itself, so the claim was
preempted at the first step of the Burnside analysis. See id. The Eleventh
Circuit did go on to say that even if the duty at issue had not arisen from
the CBA, it would “still have to consult the CBA to determine the scope
of the legal relationship between Plaintiffs and the NFL and their
expectations based upon that relationship.” Id. at 1182. But in that case,
the CBA explicitly stated that players were “solely responsible for their
personal finances,” id. at 1181; interpreting that provision would be
necessary to establishing the scope of the NFL’s duty. Here, there is no
analogous CBA provision that must be interpreted in order to establish
the scope of the NFL’s duty as it concerns the provision of prescription
drugs to players.
 DENT V. NFL 19

The NFL argues that to determine what duty, if any, it
owed plaintiffs, a court must “interpret the CBAs to
determine the scope of the obligations the NFL and Clubs
have adopted vis a vis the individual clubs’ physicians and
trainers.” Similarly, the district court noted that the CBAs
place medical disclosure obligations “squarely on Club
physicians, not on the NFL.” But the teams’ obligations
under the CBAs are irrelevant to the question of whether the
NFL breached an obligation to players by violating the law.
The parties to a CBA cannot bargain for what is illegal.
Allis-Chalmers, 471 U.S. at 212; see also Cramer, 255 F.3d
at 695. Therefore, liability for a negligence claim alleging
violations of federal and state statutes does not turn on how
the CBAs allocated duties among the NFL, the teams, and
the individual doctors. Regardless of what (if anything) the
CBAs say about those issues, if the NFL had any role in
distributing prescription drugs, it was required to follow the
laws regarding those drugs. To the extent that the plaintiffs
allege they were injured by the NFL’s violation of those
laws, their claims can be assessed without any interpretation
of the CBAs.

The district court also stated that the negligence claim
was preempted because “in deciding whether the NFL has
been negligent . . . it would be necessary to consider the
ways in which the NFL has indeed stepped forward and
required proper medical care,” i.e., the provisions of the
CBAs that establish minimum standards for the medical care
teams provide to players. We are not so sure. The
negligence analysis is not an equation, whereby one careless
act can be canceled out by a careful act in a related arena—
especially when the careful act is to be performed by a
different party. In other words, the fact that the CBAs
require team doctors to advise players in writing if a medical
condition “could be significantly aggravated by continued
20 DENT V. NFL

performance” does not address the NFL’s liability for
injuring players by illegally distributing prescription drugs.

We express no opinion regarding the merits of the
plaintiffs’ negligence claim, which will require the players
to establish that the relevant statutes apply to the NFL, the
NFL violated those statutes, and the alleged violations
caused the players’ injuries. Perhaps plaintiffs can prove
these elements; perhaps not. That must await completion of
discovery. We hold only that the plaintiffs’ negligence claim
regarding the NFL’s alleged violation of federal and state
laws governing controlled substances is not preempted by
§ 301.

We do note that at many points in the SAC, the plaintiffs
appear to conflate the NFL and the teams. But the plaintiffs
are pursuing a theory of direct liability, not vicarious
liability. And they have attempted to vindicate virtually
identical claims against the clubs themselves in separate
litigation. 8 Therefore, on remand, any further proceedings
in this case should be limited to claims arising from the
conduct of the NFL and NFL personnel—not the conduct of
individual teams’ employees. We leave it to the district

8
See Evans v. Arizona Cardinals Football Club, LLC, No. C 16-
01030, 2016 WL 3566945 (N.D. Cal. July 1, 2016) (holding that players’
claims against teams were not preempted by § 301, and denying teams’
motion to dismiss); Evans v. Arizona Cardinals Football Club, LLC,
252 F. Supp. 3d 855 (N.D. Cal. May 15, 2017) (granting teams’ motion
to dismiss players’ amended complaint as to certain claims, and granting
summary judgment for teams on some remaining claims); Evans v.
Arizona Cardinals Football Club, LLC, 262 F. Supp. 3d 935 (N.D. Cal.
July 21, 2017) (granting summary judgment for teams on all remaining
claims), appeal docketed, No. 17-16693 (9th Cir. 2017).
 DENT V. NFL 21

court to determine whether the plaintiffs have pleaded facts
sufficient to support their negligence claim against the NFL.

B

Ordinarily, “[a]n employer may be liable to a third
person for the employer’s negligence in hiring or retaining
an employee who is incompetent or unfit.” Phillips v. TLC
Plumbing, Inc., 91 Cal. Rptr. 3d 864, 868 (Cal. Ct. App.
2009) (quotation omitted). To establish liability, a plaintiff
must demonstrate the familiar elements of negligence: duty,
breach, proximate causation, and damages. Id. There are
“two elements necessary for a duty to arise in negligent
hiring and negligent retention cases—the existence of an
employment relationship and foreseeability of injury.” Id.
at 870–71 (quoting Abrams v. Worthington, 861 N.E.2d 920,
924 (Ohio Ct. App. 2006)).

The SAC alleges that “NFL doctors and trainers gave
players medications without telling them what they were
taking or the possible side effects and without proper
recordkeeping.” It also alleges that the NFL hired
individuals “charged with overseeing, evaluating, and
recommending changes to distribution of Medications,” and
that the NFL knew or should have known that those
individuals were incompetent. As a result, the players say
they were “deceived about the nature and magnitude of the
dangers to which they were subjected by the Medications”
and ultimately injured.

If the NFL did in fact hire doctors and trainers to treat
players, or hire individuals to oversee the league’s
prescription-drug regime, there is clearly an employment
relationship between the NFL and those individuals. Injury
arising from their incompetence is foreseeable, given the
dangers associated with controlled substances. See
22 DENT V. NFL

21 U.S.C. §§ 801(2), 812. Therefore, to the extent that the
NFL employed such individuals, it had a common-law duty
to use reasonable care in hiring and retaining them.

That duty did not arise from the CBAs, which do not
require the NFL to hire employees to treat players or oversee
the distribution of medications. Nor does determining
whether the NFL breached that duty require interpreting the
CBAs, which—because they do not require the NFL to hire
such employees in the first place—do not specify any
qualifications for them. Thus, the plaintiffs’ negligent hiring
and retention claims are not preempted by § 301. See
Burnside, 491 F.3d at 1059; Ward v. Circus Circus Casinos,
Inc., 473 F.3d 994, 999 (9th Cir. 2007) (holding plaintiff-
employees’ negligent hiring, training, and supervision
claims were not preempted because they did “not invoke or
refer to any duty arising from the CBA” and did not require
interpretation of the CBA).

The NFL has not identified CBA provisions whose
interpretation would be required in order to adjudicate the
negligent hiring and retention claims. See Cramer, 255 F.3d
at 691–92. The NFL argues, and the district court held, that
a court could not assess these claims without interpreting
various CBA provisions regarding medical care, including
the requirement that each team retain a “board-certified
orthopedic surgeon” and that all full-time trainers be
“certified by the National Athletic Trainers Association.”
But those provisions relate to the teams’ obligations, not the
NFL’s.

We recognize that it is not entirely clear that the NFL did
hire doctors, trainers, or individuals to supervise
medications. The complaint provides very little detail about
the employees who were purportedly “charged with
overseeing” medication distribution, and the SAC is devoid
 DENT V. NFL 23

of any allegation of an agency relationship that would render
the NFL liable for the conduct of particular doctors who
treated specific players.

But if the plaintiffs have failed to make the factual
allegations necessary to support their claim, that is a
pleading problem, not a preemption problem. The issue in
this appeal is not whether plaintiffs have plausibly pled the
NFL’s liability, but whether plaintiffs’ claims as pled are
preempted. See Schurke, 2018 WL 3636431, at *10. We
hold that the players’ negligent hiring and retention claims
are not preempted, because they can be evaluated without
interpreting the CBAs.

C

To state a claim for negligent misrepresentation, a
plaintiff must allege “[m]isrepresentation of a past or
existing material fact, without reasonable ground for
believing it to be true, and with intent to induce another’s
reliance on the fact misrepresented; ignorance of the truth
and justifiable reliance on the misrepresentation by the party
to whom it was directed; and resulting damage.” Shamsian
v. Atlantic Richfield Co., 132 Cal. Rptr. 2d 635, 647 (Ct.
App. 2003). As with all negligence claims, “responsibility
for negligent misrepresentation rests upon the existence of a
legal duty . . . owed by a defendant to the injured person.”
Eddy v. Sharp, 245 Cal. Rptr. 211, 213 (Ct. App. 1988).

The plaintiffs argue that the NFL “continuously and
systematically” misrepresented the risks associated with the
medications at issue, that they reasonably relied on those
misrepresentations, and they were injured as a result.

As we have said, none of the CBA provisions address the
NFL’s responsibilities with regard to the distribution of
24 DENT V. NFL

prescription drugs. Thus, any duty the NFL had to act with
reasonable care when making representations regarding the
medications arises from state law, not the CBAs. Therefore,
the question is whether assessing the plaintiffs’ negligent
misrepresentation claim will require interpretation of the
CBAs. See Burnside, 491 F.3d at 1059. We hold that it will
not.

Whether the NFL made false assertions, whether the
NFL knew or should have known they were false, whether
the NFL intended to induce players’ reliance, and whether
players justifiably relied on the NFL’s statements to their
detriment, are all factual matters that can be resolved without
interpreting the CBAs. See Galvez v. Kuhn, 933 F.2d 773,
778 (9th Cir. 1991) (“[T]he question in this case is simply a
factual issue and one of intent . . . . Interpretation of the CBA
can hardly help resolve these factual questions.”). As for the
NFL’s duty, if the players are correct that the NFL directly
supplied drugs to them, then the NFL certainly owed them a
duty to exercise reasonable care when making
representations about those drugs. See Shamsian, 132 Cal.
Rptr. 2d at 647; see also Garcia v. Superior Court, 789 P.2d
960, 964 (Cal. 1990) (holding that although a parole officer
had no duty to make disclosures about the dangerousness of
a parolee, once he chose to do so, he “had a duty to use
reasonable care”).

The NFL argues that assessing the scope of the NFL’s
duty would require interpreting CBA provisions related to
medical care, including those that give players the right to
access medical facilities, view their medical records, and
obtain second opinions. But these provisions do not relate
to the NFL’s duty to use reasonable care when making
representations about the safety of medications.
 DENT V. NFL 25

The NFL also argues that it is impossible to assess
whether the plaintiffs reasonably relied on the NFL’s
representations without interpreting CBA provisions related
to team doctors’ disclosure obligations. But California law
does not require a detailed weighing of various parties’
disclosure responsibilities to determine whether reliance was
justified; the question is whether the “circumstances were
such to make it reasonable for [the plaintiffs] to accept [the
defendants’] statements without an independent inquiry or
investigation.” See Goodwardene v. ADP, LLC, 209 Cal.
Rptr. 3d 722, 744 (Ct. App. 2016) (quoting OCM Principal
Opportunities Fund, L.P. v. CIBC World Mkts. Corp.,
68 Cal. Rptr. 3d 835, 864 (Ct. App. 2007)). Plaintiffs are
denied recovery for lack of justifiable reliance “only if
[their] conduct is manifestly unreasonable in the light of
[their] own intelligence or information.” OCM Principal, 68
Cal. Rptr. 3d at 865 (quotation marks and citation omitted).
We need only “look to” the CBAs to determine that none of
them contain any provisions that would render reliance on
the NFL’s representations regarding prescription drugs
manifestly unreasonable. See Cramer, 255 F.3d at 692.

We acknowledge that two of our sister circuits have held
misrepresentation claims by NFL players preempted
because determining whether players’ reliance was
reasonable would require interpreting the CBAs. See
Williams, 582 F.3d at 881; Atwater, 626 F.3d at 1183. But
in both of those cases, specific provisions in the CBAs
arguably rendered the players’ reliance on the NFL’s
representations unreasonable, which meant that
interpretation of the CBAs would be required to assess the
plaintiffs’ claims.

In Atwater, players brought claims based on the NFL’s
alleged negligence in conducting background checks on
26 DENT V. NFL

potential financial advisers. 626 F.3d at 1174–75. But the
CBA provision that dealt with the relevant program
explicitly stated that players were “solely responsible for
their personal finances.” Id. at 1181. The Eleventh Circuit
held that determining whether the plaintiffs’ reliance on the
NFL’s representations was reasonable would require
interpreting that particular provision. Id. at 1182.

In Williams, players argued that the NFL owed them a
duty to disclose that a certain dietary supplement contained
a banned substance, even though the NFL itself “strongly
encourage[d] [players] to avoid the use of supplements
altogether.” 582 F.3d at 869, 881. But the NFL’s drug
policy, which had been incorporated into the CBA, stated
that “if you take these products, you do so AT YOUR OWN
RISK!” and that “a positive test result will not be excused
because a player was unaware he was taking a Prohibited
Substance.” Id. at 868. The Eighth Circuit stated that the
reasonableness of the players’ reliance on the absence of a
warning about the supplement could not “be ascertained
apart from [those] terms of the Policy.” Id. at 882.

Here, unlike in Atwater or Williams, no CBA provisions
directly address the subject of the litigation: who was
responsible for disclosing the risks of prescription drugs
provided to players by the NFL. In Atwater and Williams,
the nature of the claims and the content of the CBAs meant
that adjudicating the claim would require interpreting the
CBAs. But here, no provisions of the CBAs even arguably
render the players’ reliance on the NFL’s purported
representations unreasonable. 9 Therefore, interpretation of

9
The only possible exception to this statement is a disclaimer in the
2011 CBA which states that nothing in the agreement should “be deemed
to impose or create any duty or obligation upon either the League or the
 DENT V. NFL 27

the CBAs will not be required, and the negligent
misrepresentation claim is not preempted.

D

The elements of fraud are (1) misrepresentation;
(2) knowledge of falsity; (3) “intent to defraud, i.e., to induce
reliance;” (4) justifiable reliance; and (5) resulting damage.
Engalla v. Permanente Med. Grp., Inc., 938 P.2d 903, 917
(Cal. 1997). The elements of fraudulent concealment are
“(1) concealment or suppression of a material fact; (2) by a
defendant with a duty to disclose the fact to the plaintiff;
(3) the defendant intended to defraud the plaintiff by
intentionally concealing or suppressing the fact; (4) the
plaintiff was unaware of the fact and would not have acted
as he or she did if he or she had known of the concealed or
suppressed fact; and (5) plaintiff sustained damage as a
result of the concealment or suppression of the fact.”
Hambrick v. Healthcare Partners Med. Grp., Inc., 189 Cal.
Rptr. 3d 31, 60 (Ct. App. 2015).

The players can establish each of these elements without
relying on the CBAs. The SAC alleges that “[t]he NFL
knew, or should have known, that its provision and
administration of Medications . . . created a substantial risk

[players’ union] regarding diagnosis, medical care and/or treatment of
any player.” But the plaintiffs assert claims arising between 1969 and
2012, and the 2011 CBA provision would apply to only a sliver of those
claims. Moreover, if the NFL undertook to provide direct medical care
and treatment to players, as the plaintiffs allege, then the disclaimer—
which only states that nothing in the CBA should be interpreted as giving
rise to duties regarding medical care—would not relieve the NFL of its
duty not to misrepresent the effects of the drugs it was giving to players.
Cf. Cramer, 255 F.3d at 697 (“Because a CBA cannot validly sanction
illegal action, we hold the terms of the CBA were irrelevant to plaintiffs’
claim.”).
28 DENT V. NFL

of causing addictions and related physical and mental health
problems.” It also alleges that the NFL intentionally
withheld this information from players with the intent to
deceive them.

The NFL has not identified any CBA provisions that
must be interpreted in order to resolve the players’ fraud
claims. As with the negligent misrepresentation claim, the
NFL argues that assessing whether the NFL had a duty to
make disclosures, and whether the players reasonably relied
on the NFL’s representations, would require interpreting
CBA provisions requiring team doctors to make certain
disclosures. But as explained above, because the players’
claims are about the NFL’s conduct, resolving these claims
does not require interpreting CBA provisions regarding team
doctors’ disclosure obligations.

E

The players’ loss of consortium claim, as well as their
requests for declaratory judgment and medical monitoring,
are derivative of their other claims. Because we hold that
their claims are not preempted, we reverse the district court’s
dismissal of the derivative claims and remand.

F

The NFL argues that we should affirm the dismissal of
all claims on the ground that the players failed to exhaust the
grievance procedures required by the CBAs. For more than
forty years, each CBA has included provisions that require
players to follow certain dispute-resolution procedures for
“[a]ny dispute . . . involving the interpretation or application
of, or compliance with, provisions of [the CBA].”
 DENT V. NFL 29

However, the players are not arguing that the NFL failed
to comply with the terms of the CBA. Nor do their claims
require the interpretation or application of the CBAs, for the
reasons already described. Therefore, we reject the NFL’s
argument that we should affirm the dismissal of the
plaintiffs’ claims on this ground.

III

Preemption under § 301 “extends only as far as
necessary to protect the role of labor arbitration in resolving
CBA disputes.” Schurke, 2018 WL 3636431, at *1. As pled,
the players’ claims do not constitute a dispute over the rights
created by, or the meaning of, the CBAs. Their claim is that
when the NFL provided players with prescription drugs, it
engaged in conduct that was completely outside the scope of
the CBAs. The meaning of CBA terms governing team
doctors’ disclosure obligations, the qualifications of team
medical personnel, and players’ rights to obtain second
opinions or examine their medical records is simply
irrelevant to the question of whether the NFL’s conduct
violated federal laws regarding the distribution of controlled
substances and state law regarding hiring, retention,
misrepresentation, and fraud. Therefore, no interpretation of
the terms of the CBAs is necessary, and there is no danger
that a court will impermissibly invade the province of the
labor arbitrator. See id. at *8.

We express no opinion about the ultimate merits of the
players’ claims. They may be susceptible either to a motion
for a more definite statement under Rule 12(e) or a motion
to dismiss for failure to state a claim under Rule 12(b)(6),
and they may not survive summary judgment under Rule 56.
But the fact that the claims may have been inadequately pled
is not a reason for finding them preempted. The complaint
alleges claims that do not arise from the CBAs and do not
30 DENT V. NFL

require their interpretation. Therefore, they are not
preempted by § 301.

Each party shall bear its own costs.

REVERSED and REMANDED.