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