Judge's ruling with Redskins footnote

The U.S. district judge presiding over the “bounty” case former New York Giants linebacker Barrett Green launched against the Redskins issued the 21-page ruling with a footnote on the first page. Related: Federal judge takes stance against use of Redskins in court documents

Case Document 53 Filed 07/08/14 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BARRETT GREEN

Plaintiff

v. Civil No.: PJM 13-1961

PRO FOOTBALL, INC. d/b/a
THE WASHINGTON REDSKINS, et al.

Defendants
we
I.
Introduction

Between the years 2000 and 2004, Barrett Green (?Green?) was a professional football
player with, among others, the New York Giants team of the National Football League
Pro Football, Inc. (?Pro Football?) at all relevant times was the owner of the Washington
Redskins team.l Green claims that Pro Football, through at least one of its coaches, established
and/0r tolerated a bounty program wherein its team?s players were given ?nancial rewards for
deliberately injuring opposing players. Green sued Pro Football and Robert Royal, a former
player on the Washington team, in the Circuit Court for Prince George?s County, Malyland,
alleging state law torts Green says he suffered as a result of this bounty program during a game
between the New York and Washington teams.

Pro Football removed the case to this Court on the basis of purported federal question
jurisdiction, and subsequently filed the present Motion to Dismiss, or in the Alternative, Motion

for Summary Judgment (Paper No. 1). Royal has also ?led a Motion to Dismiss, or in the

Pro Football?s team is popularly known as the Washington ?Redskins.? but the Court will refrain from using the
team name unless reference is made to a direct quote where the name appears. Pro Football's team will be referred
to hereafter simply as ?the Washington Team."

Case Document 53 Filed 07/08/14 Page 2 of 21

Alternative, Motion for Summary Judgment (Paper No. 16), joining Pro Football?s arguments.
Green moved to remand the case to state court, but thereafter withdrew his Motion, asserting
jurisdiction in this Court on the basis of diversity of citizenship.2 Supplemental brie?ng having
concluded, the Court now rules on Pro Football?s and Royal?s Motions. For the reasons that
follow, the Court GRANTS-IN-PART and their Motions to Dismiss, or in
the Alternative for Summary Judgment.
II.

Factual Background

According to the Complaint, on December 5, 2004, Green, who was a defensive
linebacker for the New York Giants, was playing in a game with the Washington team at the
Washington team?s Maryland stadium. Compl. 1] 13. Royal was playing for the Washington team
as an offensive tight end. Id. 11 15.

According to the Complaint, the Washington team deemed Green a ?disruptive presence?
in his team?s prior win against the Washington team on September 19. 2014, after Green stopped
Washington?s running game and recovered a fumble, retuming it for a touchdown. Id. 11 12. The
Giant?s next game against the Washington team was the December 5, 2004 encounter. Id. 1 1.3.
Green was listed on the injury report for the week as ?questionable? by reason of a knee injury
he sustained several weeks before. Id. 1] 14. Nevertheless, Green was able to and did play on
December 5. In the third quarter of the game, Royal lined up as a receiver for Washington. Id. 11
15. After the ball was snapped to the Washington quarterback, Royal allegedly ran towards
Green, who was defending for the Giants, lowered his helmet and at full speed dove into Green?s

knees. Id. 1 20. The referee ruled Royal?s action an illegal ?crackback? block under the rules of

2 Green?s Motion to Remand was based on lack of federal questionjurisdiction. He withdrew his Motion after a
status conference with the Court, assertingjurisdiction instead on the grounds that the parties are diverse and that the
amount in controversy exceeds 5575.000. 28 U.S.C. 1332.

Case Document 53 Filed 07/08/14 Page 3 of 21

the game and penalized the Giants.3 Id. 'll 22. As a result ofthc hit, Green was immediately
disabled and had to be assisted off the ?eld. He was later determined to have torn his anterior
cruciate ligament Id. 24-25. Although Green underwent. surgery when the season
ended, he never recovered his form and his football career was effectively over. Id. 1] 26.

At the time of the hit, Green was suspicious that he might have been purposely targeted
and told his head coach of. his suspicion. Id. 1i 35. He also told the New York Post that he thought
Royal?s hit was intentional. Id. 1 36. Green?s head coach. however, told him it was not possible
that the injury was intentional. Id. 1} 37. Green says he relied on this statement, believing that an
investigation had been, or would be made. 1d. 1 38. He also relied on Royal?s own
representations, after Green's press statement, that the injury was unintentional. Id. ii 39.

At that time and for some time thereafter. however, Green says he was not aware that as
of the time of the hit by Royal, the Washington team had a bounty program in place whereby,
according to Green, its players would receive ?nancial rewards for deliberately injuring
opposing players. It was not until March 3, 2012, when the Washington Post published an article
entitled to investigate Redskins over bounty allegations under [Coach] Gregg Williams,?
which reported that the team?s defense under Williams may have had a system to reward players
with cash for hits that knocked opponents from games, that Green became aware of the program.
Id. 40?41. Also, at about the same time, the NFL announced its findings, after investigation,

that when serving as Defensive Coordinator for the New Orleans Saints team, Williams was

3 The rule against illegal ?crackbaek? blocks in the 2004 NFL Rules of Play states: ?At the snap [of the ball], an
offensive player who is aligned in a position more than two yards laterally outside an offensive tackle, or a player
who is in a back?eld position at the snap and then moves to a position more than two yards laterally outside a tackle.
may not clip an opponent anywhere, nor may he contact an opponent below the waist if the blocker is moving
toward the position where the ball was snapped from, and the contact occurs within an area ?ve yards on either side
ofthe line ol?scrimmage." 2004 Of?cial Playing Rules of the National Football League, Rule 12, Section 2, Article
10.

Case Document 53 Filed 07/08/14 Page 4 of 21

determined to have implemented a bounty program of the same type allegedly in effect with the
Washington team. Id. 1] 42.

Green?s Claims and Defendants? Motions
Once Green learned of the bounty program, he brought his suit in the Circuit Court for
Prince George?s County against Pro Football, Royal, and Williams (who has since been
dismissed from the suit), alleging that Royal?s career?ending hit on him in 2004 was made
pursuant to the Washington team?s bounty program. His suit proceeds on the following counts:
Count I for Battery against Royal; Count ll for Vicarious Liability against Pro Football; Count
for Negligence against Royal; Count for Negligence against Pro Football, and Count V1
for Negligent Supervision against Pro Football.4
In their Motions to Dismiss, or in the Alternative, for Summary Judgment, Pro Football
and Royal argue that Green?s claims are barred by the statute of limitations and, in any case, are
completely preempted by 301 of the Labor Management Relations Act 29 U.S.C.
185(a). In this regard, they argue that Green?s claims are covered by a Collective Bargaining
Agreement in effect between the National Football League, its owners, and players, and
that Green failed to exhaust his remedies as provided in the CBA.
The Court considers these arguments.
IV.

Legal Standard

A

?To survive a motion to dismiss, a complaint must contain suf?cient factual matter,

accepted as true, to ?state a claim to reliefthat is plausible on its face.?? Ashcroft v. Iqbal, 556

4 Count for Negligence against Gregg Williams is no longer in the case.

Case Document 53 Filed 07/08/14 Page 5 of 21

U.S. 662, 678 (2009) (quoting Bel/Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). ?The
plausibility standard requires a plaintiff to demonstrate more than ?a sheer possibility that a
defendant has acted unlawfully.m Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678). ?It requires the plaintiff to articulate facts, when accepted as
true, that ?show? that the plaintiff has stated a claim entitling him to relief, the ?plausibility of
entitlement to relief.? Id. (quoting Iqbal, 556 U.S. at 678).

In considering such a motion, the court ordinarily accepts the complaint?s factual
allegations and draws any reasonable factual inferences in favor of the plaintiff. Robertson v. Sea
Pines Real Estate Companies. Inc., 679 F.3d 278, 284 (4th Cir. 2012).

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56. Fed. R. Civ. P. 12(d); Laughlin v. Metropolitan Washington Airports, 149 F.3d 253,
260-61 (4th Cir. 1998).

B.

The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). A genuine issue of material fact exists when ?the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.? Anderson v. Liberty Lobby. Inc, 477 U.S.
242, 248 (1986). The court must view the facts and all inferences drawn from the facts in the
light most favorable to the nonmoving patty. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). mere existence ofa scintilla of evidence? is not sufficient to create
a genuine issue of material fact. Anderson, 477 U.S. at 251-52. There must be ?suf?cient

evidence favoring the nonmoving party for a jury to return a verdict for that party. If the

Case Document 53 Filed 07/08/14 Page 6 of 21

evidence is merely colorable, or is not signi?cantly probative, summary judgment may be
granted.? Anderson. 477 US. at 249?50 (citations omitted).
V.
Contentions of the Parties

Pro Football and Royal argue ?rst that all of Green?s claims are barred by the Statute of
Limitations. The Complaint, they say, was brought after Maryland?s three year statute expired,
see Ford v. Douglas, 799 A.2d 448, 449 (Md. Ct. Spec. App. 2002) (three years for battery); Md.
Code. Ann., Jud. Proc. 5-101 (three years for negligence), and submit that no exception
tolled the three year period. Because, they say, Green concedes he was immediately aware of his
potential battery claim at the time of Royal ?5 hit, he was charged with investigating all
his potential claims. In opposition, Green argues that his claims are indissolubly linked with the
bounty program, the existence of which he could not reasonably have discovered until the
program was revealed in the press and by the NFL in 2012. He further argues that his claims
were tolled by the fraudulent concealment doctrine.

Pro Football and Royal next argue that Green?s claims, all of which are predicated on
state law, are completely preempted by 301 ofthe LMRA, 29 U.S.C. 185(a), by reason ofthe
CBA in effect in the National Football League, and say further that because Green failed to
exhaust his remedies under the CBA, his suit must be dismissed as a matter of law. Green
disputes that his claims are in any way controlled by the CBA or that his claims are in any way
preempted by the they arise, he says, solely out of state law.

In Supplemental Brie?ng in response to the questions raised by the Court at a motions
hearing, Green argues that an appropriate theory of direct liability against Pro Football (and

Royal, for that matter) would be a civil conspiracy claim, which he says he has suf?ciently

Case Document 53 Filed 07/08/14 Page 7 of 21

alleged in his Complaint. In the altemative. he asks for leave to amend to include a separate civil
conspiracy claim. He submits that a civil conspiracy claim would not be barred by the statute of
limitations for the same reasons his other claims are not barred; that is, he could not reasonably
have discovered his claims until the existence of the bounty program was revealed in 2012. Pro
Football and Royal argue that a civil conspiracy claim would be barred for the same reasons as
the original claims.
VI.
Discussion

There is no question that Green?s Complaint is something ofajumble. He mixes claims
of negligence, gross negligence, and malice in a single count. But, as it stands,5 this much does
emerge from the Complaint: Whatever injury Green sustained, he alleges came about because the
Washington Team had a policy in place to pay its players to deliberately in?ict physical injuries
on opposing players, the so-called ?bounty? program, and submits that Royal deliberately injured
him pursuant to that program. This set of facts would ordinarily give rise to a claim of battery, an
intentional tort. And, of course, if a battery is committed in the scope of his employment by an
employee Royal) against a third person Green), then the employer Pro Football
through the Washington team), may be held responsible according to the well-established
doctrine of respondeat superior.

At the same time, Green has pleaded, presumably as an altemative theory, that both Pro
Football and possibly Royal committed ordinary negligence or gross negligence or acted with
malice when Royal, individually and qua employee, engaged in an alleged hit against him. These

torts of course are not intentional torts; they bespeak neglect or gross neglect of a duty which

5 For the sake of simplicity, the Court will grant Green leave to amend his Complaint to add a count of Civil
Conspiracy against Pro Football and Royal. However, in view ofmlings the Court is making with regard to certain
other of Green?s Counts, the Amended Complaint will need to also take those rulings into account.

Case Document 53 Filed 07/08/14 Page 8 of 21

may even be motivated by ill will or hatred. The distinction between these torts and the
intentional tort of battery is important in this case because, as the Court will now proceed to
explain, while the intentional tort of battery the tort claim tied to the bounty program may be
subject to one disposition as far as the statute of limitations is concerned, the negligence torts are
subject to a different disposition.

VII.

Statute ofLimitations

Does the statute of limitations bar Green?s claims as a matter of law?

Limitations as a bar to a plaintiff?s cause of action constitutes an af?rmative defense that
may be raised by motion pursuant to Fed. R. Civ. P. 12(b)( 6) if the time bar is apparent on the
face of the complaint. Dean v. Pilgrim '3 Pride Corp, 395 F.3d 47 474 (4th Cir. 2005).

motion to dismiss ordinarily should not be granted by a trial court based on the
assertion that the cause of action is barred by the statute of limitations unless it is clear from the
facts and allegations on the face of the complaint that the statute of limitations has run.? Litz v.
Maryland Dep 't ofEnv 76 A.3d 1076, 1086 (Md. 2013); Goodman v. Praxair, Inc, 494 F.3d
458, 464 (4th Cir. 2007) (stating that the ?principle? that the af?rmative defense that a claim is
barred by the Maryland statute of limitations ?may be reached by a motion to dismiss ?led under
[the Federal Rules of Civil Procedure] . . . only applies, however. if all facts necessary to the
af?rmative defense clearly appear on t/zeface oft/1e complaint?) (emphasis in original)
(quotation and citation omitted?.

The question of when a cause of action accrues is ordinarily ?left to judicial
determination.? Frederick Road Ltd. ?ship v. Brown Sturm, 756 A.2d 963, 973 (Md. 2000).

The detemiination ofwhen an action accrued ?may be based solely on law, solely on fact, or on a

Case Document 53 Filed 07/08/14 Page 9 of 21

combination oflaw and fact.? Heclit v. Resolution Trust Corp, 635 A.2d 394, 399 (Md. 1994).
When it is necessary to make a factual determination to identify the date of accrual, however,
those factual determinations are generally made by the trier of fact, and are not decided by the
couit as a matter oflaw. Liiz, 76 A.3d at 1086 (2013), citing O?Hara v. Kovens, 503 A.2d 1313,
1323-24 (Md. 1986).

A. Magland law

In Maryland, the statute oflimitations for each claim at issue is three years. That is, a
claim for battery or vicarious liability for battery must be brought within three years. Ford v.
Douglas, 799 A.2d 448, 451 (Md. Ct. Spec. App. 2002). Similarly, a claim based in negligence
or negligent supervision must be brought within three years Md. Code. Ann, Jud. Proc.
5?101; Hanscome v. Perry, 542 A.2d 421, 425 (Md. Ct. Spec. App. 1988); Doe v. Archdiocese of
Washington, 689 A.2d 634, 637 (Md. Ct. Spec. App. 1997). A claim of civil conspiracy, which
the Court anticipates Green will. as authorized, add to an Amended Complaint, shares a statute of
limitations with the underlying tort. Prince George ?5 Cm?y. v. Longtin, 19 A.3d 859, 877 (Md.
20] 1) (citing Nader v. Democratic Na! ?1 Comm, 567 F.3d 692, 697 (DC. Cir. 2009)) Civil
conspiracy claim incorporates not only every substantive element of the underlying tort, but also
its statute of limitations?).

?in Maryland, the general rule is that the running of limitations against a cause of action
begins upon the occurrence of the alleged wrong, unless there is a legislative or judicial
exception which applies.? Poole v. Coalcley Williams Const.. Inc, 31 A.3d 212, 236 (Md.

20l I).
One importantjudicial exception to the statute of limitations in Maryland is the

?discovery rule," which ?tolls the accrual date of the action until such time as the potential

Case Document 53 Filed 07/08/14 Page 10 of 21

plaintiff either discovers his or her injury, or should have discovered it through the exercise of
due diligence.? Poole, 31 A.3d at 236. Under the discoveiy rule, limitations begin to run when a
claimant gains knowledge suf?cient to put him or her on inquiry. Lumsden v. Design Tech
Builders, Inc, 749 A.2d 796, 801 (Md. 2000). Being on inquiry notice ?means having
knowledge of circumstances which would cause a reasonable person in the position of the
plaintiffs to undertake an investigation which, if pursued with reasonable diligence, would have
led to knowledge ofthe alleged [cause of action].? Anne Arundel Cnly. v. Halle Den, Inc, 971
A.2d 214, 228 (Md. 2009) (citing 0 ?Hara, 503 A.2d at 1324). A plaintiff?s knowledge of the
?nature? and ?cause? of the injury triggers the running of the limitations period. See,
Dashiel/ v. Meeks, 913 A.2d 10, 21 (Md. 2006); Frederick Road Ltd. P?Ship, 756 A.2d at 973.

Maryland also recognizes the fraudulent concealment doctrine which has the effect of
tolling the statute of limitations. ?If the knowledge of a cause of action is kept from a party by
the fraud of an adverse party, the cause of action shall be deemed to accme at the time when the
party discovered, or by the exercise of ordinary diligence should have discovered the fraud."
5-203. The ?complaint relying on the fraudulent concealment doctrine must also contain
speci?c allegations of how the fraud kept the plaintiff in ignorance of a cause of action, how the
fraud was discovered, and why there was a delay in discovering the fraud, despite the plaintiff?s
diligence.? Dual Inc. v. Lockheed Martin Corp, 857 A.2d 1095, 1 105-06 (Md. 2004) (citing Doe
v. Archdiocese QfWasln'ngton, 689 A.2d 634, 643 (Md. Ct. Spec. App. 1997)).

B. Statute of Limitations for claims relying on the bounty program

Without question, Green?s injury occurred in 2004, and if no exceptions are applicable,

the statute of limitations would bar Green?s claims, all of which were fust ?led in the underlying

state court action in 20l 3.

~10~

Case Document 53 Filed 07/08/14 Page 11 of 21

Pro Football and Royal argue that all facts necessary to the af?nnativc statute of
limitations defense appear on the face of the Complaint, and that no exceptions apply. Defs.?
Suppl. Mem. in Support at 9 (Paper No. 51). As Defendants see things, because Green says in his
Complaint that he was immediately aware that Royal?s hit injured him, and because he was
suspicious that the hit was intentional, he must be deemed as a matter of law to have been aware
of the ?nature? and ?cause? of his injury. He was therefore charged with investigating the
remainder of his claims. Pro Football?s Mem. in Supp. ofMot. to Dismiss at 5-6 (Paper No. l-
3). Green, in response, argues that both the discovery rule and the fraudulent concealment
doctrine tolled the statute of limitations because his claims rest exclusively on the bounty
program, which he, not to mention the public, was unaware of until 2012. Green?s Mem. in Opp.
at l3 (Paper No. 24-1).

The Court ?nds that on the face of the Complaint, Green has suf?ciently pleaded
applicability of the reasonable discovery and the fraudulent concealment doctrines, which, if
proven, would toll limitations in the case. The exceptions potentially apply because the
gravamen of the Complaint is Pro Football?s alleged bounty program. Green speci?cally alleges
that no one (presumably apart from Pro Football and Coach Williams or the Washington team?s
coaching staff) had knowledge of the bounty program until March 3, 2012, when the Washington
Post article first suggested that the Washington team had a bounty program under former
Assistant Coach Williams. Compl. 1] 41. Green also alleges that Pro Football and Royal
conspired to create the program. and that no one knew it existed until former players broke their
silence over the existence of the program in the Washington Post article in 2012. Id. 35?4].
Green points out that Royal told the press at the time that the hit was not intentional, a statement

representing a flat-out denial and misrepresentation of what Green now says was the actual case.

N112

Case Document 53 Filed 07/08/14 Page 12 of 21

Id. ii 39. These allegations suffice to suggest that Green might not reasonably have discovered
the bounty program until it was revealed in 2012, and that Pro Football and Royal fraudulently
concealed the cause of the action. This part of Green?s Complaint, therefore, survives the
Motions to Dismiss and/or for Summary Judgment. The ultimate trier of fact, the ju1y, will
be able to weigh the facts and determine if Green?s delayed discovery was reasonable and/or the
fraudulent concealment doctrine applies. See Bacon v. Arey, 203 Md. App. 606, 653, cert.
denied, 427 Md. 607, 50 A.3d 606 (Md. Ct. Spec. App. 2012) (?When there are questions of fact
relating to when the statute of limitations began to 11m, those questions should be determined, in
ajury trial. by the jury and not the trial judge") (citations omitted).

Pro Football and Royal rely on Doe v. Archdiocese of Washington for the proposition that
?[o]nce on notice of one cause of action, a potential plaintiff is charged with responsibility for
investigating, within the limitations period, all potential claims and all potential defendants with
regard to the injury.? 689 A-2d 634, 644 (Md. Ct. Spec. App. 1997). They argue that in a battery
case, ?the invasion of the Victim?s dignitary interest is invariably concurrent with the actions that
constitute the intentional tort itself." Id. at 643. Thus, ?compensible [sic] harm occurs at the time
of the battery, regardless of whether the victim is aware that the act is wrong or of the full extent
of the harm.? Id. These cases fail to persuade.

The battery in Doe is distinguishable from the battery that Green alleges. ln Doe, plaintiff
alleged that a priest had sexually abused him as a minor and the statute oflimitations was tolled
because he did not know the conduct was wrongful or actionable until years later when his
marriage dissolved. The Court of Special Appeals rejected plaintist arguments about exceptions
to the statute of limitations (both under a repression theory and a latent disease themy), noting

that under such an argument, a plaintiff?would be in subjective control of the limitations period?

Case Document 53 Filed 07/08/14 Page 13 of 21

which ?would defeat the twin goals of promoting diligent pursuit of viable claims. and allowing
repose to defendants when claims have become stale.? Id.

Unlike Doe, Green was not in subjective control of the limitations. The discovery that
Royal?s hit was conceivably legally actionable was first raised by outside events, by the
news articles disclosing the alleged bounty program. In an injury case involving professional
football players in the course of play, such as purportedly occurred here, given that strong, even
violent physical impact is part and parcel of the game, it would not be immediately apparent that
a player?s ?dignitary interest? had been invaded. A number of nonliability hypotheses could
explain the hit, such as the reasonable belief that Royal was telling the truth following the game
that his hit was unintentional, as well as Green?s own Coach?s reassurance that the hit was
unintentional. See, Geisz v. Greater Baltimore Med. Ctr-1, 545 A.2d 658 (Md. 1988)
(referring to fraud case where ?a variety of nonliability hypotheses could have explained the
facts known to the plaintiffs so that limitations was a fact question?) (citing O?Hara v.
Kovens, 503 A.2d 1313, 1314 (Md. l986)). Accordingly, the Court cannot determine, at this
stage, whether Green?s investigation of his claims was or was not reasonably diligent at the time
of the hit. particularly in light of Pro Football?s alleged concealment of the bounty program. This

will be a determination to be made at a later date, as a fact question for the jury.6

6 In Maryland, a claim for civil conspiracy requires proof of the following elements: 1) a confederation of two or
more persons by agreement or understanding; 2) some unlawful or tortious act done in furtherance of the conspiracy
or use of unlawful or tortious means to accomplish an act not in itselfillcgal; and 3) actual legal damage resulting to
the plaintiff. Lloyd v. Gen. Motors Corp, 916 A.2d 257, 284 (Md. 2007). Because this tort, which the Court has
authorized Green to add in the Amended Complaint. essentially alleges an agreement or understanding between Pro
Football and Royal to commit a battery on Green, the same rationale that vanquishes the Motions to Dismiss and/or
for Summary Judgment on statute of limitations grounds as to the straight battery claim also apply to the civil
conspiracy claim. It remains in the case.

~13~

Case Document 53 Filed 07/08/14 Page 14 of 21

C. Statute of limitations for claims that do not rely on the bounty program

To the extent Green seeks to recover for his injuries independently of the bounty
program, it is clear his claims are barred by the statute oflimitations. The Court raised this issue
at the hearing, and Green?s counsel conceded the issue:

[I]f the allegation was simply that Defendant Royal intentionally injured the

plaintiff . . . it would be a different argument for purposes of the Statute of

Limitations. And the reason why is this is a different complaint than a complaint

that argued or alleged that Defendant Royal with malice of forethought attempted

to injure the plaintiff during a football game December, 2004. If that were the

allegation, if that were the cause of action, then I would agree that under the

defendant?s case law, the Statute of Limitations began in September, 2004. But

this complaint is based upon the Bounty Program and the allegation that the

Bounty Program did not come to light in any way, shape [until 2012]

Mot. Hr?g Tr. 59: 2-3, 8-18, Nov. 25. 2013.

The Court concludes, therefore, that Green cannot bring a pure negligence or battery
claim independent of the bounty program, because all of the elements of these torts would have
been immediately apparent as of 2004.

The Court therefore will dismiss with prejudice any and all claims based on negligence,
gross negligence (and malice), as well as battery not tied to the existence of the bounty program.

To the extent Green?s claims rely on the bounty program, however, the Motion to
Dismiss and/or for Summary Judgment are not subject to resolution at this juncture and the
Motions will be denied.

mm
Pro Football and Royal also argue that Green?s claims are barred as a matter of law

because the CBA preempts the state law claims.

Section 30] of the LMRA provides that:

Case Document 53 Filed 07/08/14 Page 15 of 21

[s]uits for violations of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as de?ned in this
chapter, or between any such labor organizations, may be brought in any district

court of the United States having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. 185(a).

Applying 301, the Supreme Court has held that a state tort action is governed by federal
law if it is ?inextricably intertwined? with a collective bargaining agreement. Allis-Chalmers
Corp. v. Lueclc, 47] US. 202. 213, 220 (1985). To preserve uniformity in the federal law, the
Supreme Court has held that 301 preempts state law claims that: derive from a duty
created by a collective bargaining agreement; or (2) turn on the meaning of a collective
bargaining agreement. Id.; see also United Steel Workers of Am. v. Rawson, 495 US 362, 369,
(1990) (preempting plaintiffs? state law tort claims). However, not every ?state tort suit brought
by an employee covered by a CBA is preempted by the Brown v. National Football
League, 219 F. Supp. 2d 372, 378 (S.D.N.Y. 2002); see also Allis?Chalmers Corp, 471 U.S. at
220. ?[T]he bare fact that a collective-bargaining agreement will be consulted in the course of
state-law litigation plainly does not require the claim to be extinguished.? Livaa?as v. Bradshaw,
512 US. 107, 124 (1994). State-law claims that have no relation to a CBA?other than the fact
they are asserted by an employee covered by a CBA?are not preempted by 301. Smith v.
Giant Food, LLC, 931 F. Supp. 2d 717, 721 (D. Md. 2013) (citing Caterpillar v. Williams, 482
US. 386, 396 n. 10 (1987)). Section 301. for example, does not grant the parties to a collective
bargaining agreement the ability to contract for what is illegal under state law. Allis?Chalmers
C0771. 471 US. at 2l2; see also Lee 12. Pfeifer, 916 F. Supp. 501, 509 (D. Md. 1996) (?Because

an assault is an illegal action, any provision of the contract which purported to give management

the right to assault [plaintiff] would be illegal?); Galvez v. Kuhn, 933 F.2d 773. 777 (9th Cir.

Case 8213-CV-01961-PJM Document 53 Filed 07/08/14 Page 16 of 21

1991) (?The prohibition against [battery and assault] exists independent of any contract, as does
the state law standard de?ning their commission?)

All of Green?s claims, to be sure, arise under state law. He alleges battery, negligence,
negligent supervision, vicarious liability, and potentially civil conspiracy. The Court examines
the elements oftlre remaining claims to determine whether it would need to interpret the CBA in
resolving them. See Jenkins v. PBG, Inc, 268 F. Supp. 2d 593, 596-97 (D. Md. 2003); see also
Foy v. Pratt Whitney Grp., 127 F.3d 229, 233 (2d Cir. 1997) (citing Lingle v. Norge Division
ofMaglc Chef; Inc. 486 US. 399, 413, n. 12 (1988)).

A. Battery and Civil Conspiracy

The intentional torts alleged (or potentially alleged) are battery and civil conspiracy.

Under Maryland law. a battely occurs when one intends a harmful or offensive contact
with another without that person?s consent. Nelson v. Carroll, 735 A.2d 1096, 1099 (Md. 1999).
While this claim arguably may involve some reference to the ?Rules of Play? incorporated into
the CBA, the battery alleged here a block intentionally designed to cause physical injury
pursuant to a bounty program could not conceivably be authorized under the CBA, and
therefore is not inextricably intertwined with it.7 In short. the Court does not need to consult the
NFL Rules of Play to determine whether a hit, intentionally designed to injure pursuant to a
bounty program, if it occurred, was tortious conduct.

As for a claim for civil conspiracy (which Green may include in an amended Complaint,
see again that requires l) a confederation of two or more persons by agreement or
understanding; 2) some unlawful or tortious act done in furtherance of the conspiracy or use of

unlawful or tortious means to accomplish an act not in itselfillegal; and 3) actual legal damage

7 At least one Court has suggested that the NFL Rules are not incorporated by reference into the CBA. Brown 1).
Nal Football League, 219 F. Supp. 2d 372, 387 (S.D.N.Y. 2002).

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Case Document 53 Filed 07/08/14 Page 17 of 21

resulting to the plaintiff. Lloyd v. Gen. Motors Corp, 916 A.2d 257, 284 (Md. 2007). As with the
elements "for battery, none of these elements is inextricably intertwined with the CBA.

Interpretation of the CBA ?is not required to determine either whether a duty of care
exists or to define the nature and scope of that duty? for these types of claims. See Lee v. Pfezfer,
916 F. Supp. 501, 509 (D. Md. 1996) (referring to action for assault under Maryland law). By
extension, Green?s allegations, if true, are based on a bounty program that paid players to
deliberately injure opposing players. Again. the CBA has nothing that speaks to that scenario.

Other cases involving the CBA con?rm this conclusion. See, e. Brown v.
National Football League, 219 F. Supp. 2d 372, 382 (S.D.N.Y. 2002) (?Courts of appeals have
frequently held that claims of intentional torts like assault or battery brought by employees
covered by CBAs against fellow-employees are not preempted by federal labor

Smith v. Houston Oilers, Inc., 87 F.3d 717 (5th Cir. 1996) bears extended comment.
There the Fifth Circuit addressed intentional torts such as battery in the CBA context:

Where the complained-of actions consist entirely of an employer?s physical

battery of an employee, there is no need for reference to a labor agreement; in

such cases. it typically makes sense to say that, because the CBA at issue could

not have condoned such conduct, resolution of the plaintiffs claim for battery

does not depend on the meaning of the terms of the CBA. This comports with an

underlying appreciation that the employer?s physical attack on the employee is

properly regarded as an issue of state law, not a matter of federal labor concern.
Smith, 87 .3d at 720. To be sure, the court found preemption in that case because the underlying
labor dispute over termination pay could not be divorced from the team?s conduct in forcing
players to choose between terms of termination and participating in an excessively demanding
rehabilitation program. Resolution ofthe claims, it held, was too dependent on analysis of the

CBA to escape preemption. By way of contrast, nothing in Green?s Complaint amounts to a

labor dispute. He is alleging an intentional physical injury by a player on an opposing team

Case Document 53 Filed 07/08/14 Page 18 of 21

pursuant to that team?s program to deliberately cause (and rewarding players for causing) such
injuries, as well as a conspiracy to cause these injuries.

Indeed, professional football players have successfully brought suits for intentional
injuries in court systems in the past, unblocked (so to speak) by the existence of a CBA. In
Hac/rbart v. Cincinnatti Bengals, Inc, 435 F. Supp. 352 (D. Colo. 1977), Dale Hackbart, a player
for the Denver Broncos team, brought suit against the Cincinnati Bengals team and Charles
Clark, a player for the Bengals, when Clark allegedly struck a blow to the back ot?Hackbart?s
head during a game. Although not speci?cally addressing the issue of preemption, the district
court acknowledged that within the CBA, there was ?no provision for disputes between players
of different teams.? Hackbart, 435 F. Supp. at 354, rev 601 F.2d 516 (10th Cir. 1979). While
it is true that Hackbart dealt with an earlier version of the CBA, Pro Football and Royal have not
speci?cally pointed to any provisions in the current CBA that have changed since Hackbart. The
short of the matter is that Haekbart?s tort claims, like Green?s, did not arise from the they
were also traditional state law claims. Any doubt in this regard was erased when the Tenth
Circuit reversed the District of olorado?s ?nding that, because the injury had occurred during
the course of a football game, it should not be subject to the restraints of the law. The Tenth
Circuit found that ?[t]he general customs of football do not approve the intentional
punching or striking of others.? Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 521 (10th
Cir. 1979). Accordingly, the appellate court held that the ?trial court?s ruling that this case had to
be dismissed because the injury was inflicted during a professional football game was error."
Hue/(barf, 601 F.2d at 524.

Ton-y'anovich v. California Sports, Inc, No. I979 WL 2l0977 (SD. Tex. Oct.

10, I979), involving an intentional injury to one professional basketball player by a member of

Case Document 53 Filed 07/08/14 Page 19 of 21

the opposing team, is also instructive. Rudy Tomjanovich, who played for the Houston Rockets
team of the National Basketball Association, sued the Los Angeles Lakers team under a theory of
respondeat superior after Lakers player Kermit Washington punched Tomjanovich in the face,
shattering his face and jaw, during an on-court ?ght in 1977. See omjanovich, 1979 WL
210977; see also ?Shattered and Shaken,? Sports Illustrated, January 2, 1978. The case was tried
by a jury, which awarded Tomjanovich a $3.25 million verdict against the Lakers. Although
there appears to have been no preemption analysis in the case, the fact that the case went to a
jury in the normal court system suggests that the ordinary court system was seen as an
appropriate venue for such a case, and that the theory of respondeat superior was an appropriate
theory for Vindicating intentional injuries in professional team sports contexts. omjanovich,
1979 WL 210977.

Again, insofar as the battery claim is tied to the existence of the bounty program, the
claim, for now, survives the Motions to Dismiss or, in the Alternative, Motions for Summary
Judgment.

B. Grievance Procedures

Pro Football and Royal refer to a number of exclusive grievance procedures in the CBA
they say Green failed to exhaust.

They argue that Article IX, Section 1 of the CBA provides a blanket prohibition on ?ling
suits for non?injury grievances:

Any dispute . . . involving the interpretation of, application of, or compliance

with, any provision of the the NFL Player Contract, or any applicable

provision of the NFL Constitution and Bylaws pertaining to terms and conditions

of employment of the NFL players, will be resolved exclusively in accordance

with the procedure set forth in this Article.

These procedures involve appointment of a mediator to resolve the grievance.

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Case Document 53 Filed 07/08/14 Page 20 of 21

Pro Football and Royal also point to Article ofthe NFL Constitution apply, which
vests the Commission with

full, complete, and ?nal jurisdiction and authority to arbitrate . . . [a]ny dispute

between or among players, coaches, and/or other employees of any member club

or clubs of the League, other than disputes unrelated to and outside the course and

scope of the employment of such disputants within the League.

Because the Court has already determined that none of Green?s remaining claims arise
from, or are inextricably intertwined with, the CBA, these grievance procedures quite simply do
not apply to his state law claims. Paying players to deliberately injure players on opposing teams
cannot plausibly be said to be included in ?terms and conditions of employment? or the ?course
and scope of employment." Such a contract is no more enforceable, even if lesser in degree, than
a contract to kill, the universally illegal contract. See, e. Allis-Chalmers Corp, 471 US. at 212
(Parties cannot contract for what is illegal under state law).8 Suggesting that the intended target
of the mayhem could in any way be bound by a CBA to yield his right to seek legal redress in the
face of such deliberate aggression is not only inadmissible; it is ludicrous.

IX.
Conclusion

Having concluded that the statute of limitations does not bar Green?s battery and civil
conspiracy claims (but that it clearly bars the claims related to negligence), and that the battery
and civil conspiracy claims are not preempted by the LMRA or otherwise controlled by the
CBA, Pro Football and Royal?s Motions to Dismiss, or in the Alternative, for Summary

Judgment (Paper Nos. 1 and 16) are and DENTED-IN-PART. The

8 Insofar as allowing this case to go forward will ?open the ?oodgates? for any aggrieved player to sue For potential
injuries in the inherently violent game of football. the Court does not believe that should be a concern. Green has
pleaded with particularity that a deliberately injurious bounty program was established, as corroborated by quotes
from players, and, moreover, that the speci?c assistant coach who has already been implicated in a bounty program
at another team, was also involved in the homily program that brought about Green?s injury.

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Case Document 53 Filed 07/08/14 Page 21 of 21

Motions are GRANTED insofar as any claims related to negligence, gross negligence or malice
are dismissed with prejudice. The Motions are DENIED insofar as Green?s claims related to
battery, respondeat superior for the battery, and civil conspiracy suwive. Green?s request to
amend the Complaint is GRANTED.

A separate Order will ISSUE.

PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
July 7, 2014