Petition for Writ of Certiorari — Brocail v. Detroit Tigers, Inc. (No. 09-72)

09-72 JUL 16 2009

SS Urricve UF tt CLERK

Weiiam K. Sutar, Ciark

Sn The

Supreme Court of the United States

DOUGLAS K. BROCAIL,

Petitioner.

DETROIT TIGERS, INC.,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals

For The Fourteenth District Of Texas

LEVON G. HOVNATANIAN

MARTIN, DISIERE, JEFFERSON

& WispcM, L.L.P.

808 Travis, Suite 1800

Houston, Texas 77002

(713) 632-1700 — Telephone

(713) 222-0101 — Fax

Altorney for Petitioner

QUESTION PRESENTED

Whether the Labor Management Relations Act,

which preempts only claims whose resolution de-

pends on the interpretation of a collective bargaining

agreement, preempts the state-law tort claims at

issue here.

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioner

The petitioner is Douglas K. Brocail.

Respondent

The respondent is the Detroit Tigers, Inc. The

Detroit Tigers, Inc. is owned by Mike Ilitch. It has no

parent corporation, and no publicly-held company

owns 10% or more of its stock.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT...

STATUTORY PROVISION INVOLVED...............

LAL Ee © COR LES CA ivicciccescscessssssiccssrseesess

REASONS FOR GRANTING THE PETITION..... 10

I. THE FOURTEENTH COURT'S ANALY-

SIS OF BROCAIL’S CLAIM FOR FRAUD-

ULENT INDUCEMENT CONFLICTS WITH

THIS COURTS HOLDINGS ON FEDER-

AL PREEMPTION

THE FOURTEENTH COURT'S ANALYSIS

OF BROCAILS CLAIM FOR THE FAILURE

TO PROVIDE A SECOND OPINION ALSO

CONFLICTS WITH THIS COURT’S HOLD-

INGS ON FEDERAL PREEMPTION

THE COURT SHOULD GRANT REVIEW

TO CLARIFY AND VINDICATE THE STAN-

DARD FOR DETERMINING WHETHER

STATE TORT CLAIMS DEPEND ON THE

MEANING OF A CBA

CONCLUSION

TABLE OF CONTENTS — Continued

APPENDIX

Court of Appeals’ Opinion

Court of Appeals’ Judgment

Trial Court’s Judgment

Notice from Court of Appeals that Court grant-

ed Douglas K. Brocail’s Motion for Extension

of Time to File Motion for Rehearing

Notice from Court of Appeals that Court denied

PROCIOR: TOT TROT GOT oie cecssinevesesarscecssssescescrccees App.

Notice from Supreme Court of Texas that Court

denied Petition for Review......................:..00e App. ¢

Notice from Supreme Court of Texas that Court

granted Motion fer Extension of Time to File

Motion for Rehearing and Filed Motion for

Rehearing on February 27, 2009................... App. !

Notice from Supreme Court of Texas that Court

denied Motion for Rehearing of Denial of Pe-

tition for Review

Section 301(a) of Labor Management Relations

Act (29 U.S.C. § 185(a))

Section 418.315(1) of Michigan Worker’s Disa-

bility Compensation Act

Detroit Tigers, Inc.’s Motion for Summary Judg-

Rs ose Pasnvacvecccccunestises canis ssesanciods and aan App.

Douglas K. Brocail’s Response to Detroit Tigers,

Inc.’s Motion for Summary Judgment

Douglas K. Brocail’s Brief in Court of Appeals ...

TABLE OF CONTENTS — Continued

Page

Detroit Tigers, Inc.’s Brief in Court of Appeals .. App. 111

Douglas K. Brocail’s Petition for Review........ App. 129

Detroit Tigers, Inc.’s Response to Petition for

Review ......... oat pisadnea alas taisisanessiaaohnmoneneds App. 138

Douglas K. Brocail’s Motion for Rehearing in

ARPS COGRITE OF TOMBR.......600ccccscccecsesecosnssee App. 1438

TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985) 14, 16,17

Alvarado v. Hyundai Motor Co., 908 S.W.2d

243 (Tex. App. — San Antonio 1995), aff’d,

G3 & Dat A). Se saaavabeases 11

American Fed’n of State, County & Mun. Em-

ployees v. Board of Educ., 577 N.W.2d 79

acco csan cuuaeibaeabasiniauians) «vikemintseone' 3,

Balcorta v. Twentieth Century-Fox Film Corp.,

208 F.3d 1102 (9th Cir. 2000)

Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90

(Tex. App. — Houston [14th Dist.] 2008, pet.

denied) passim

Brown v. NFL, 219 F.Supp.2d 372 (S.D.N-Y.

2002)

California Fed. Savs. & Loan Ass’n v. Guerra,

479 U.S. 272 (1987)

Carter v. Ford Motor Co., 121 F.3d 1146 (8th

IPED 55. c digusatidsinsdadiandsssearsieneue aku needs 20, 2

Caterpillar, Inc. v. Williams, 482 U.S. 386

Dickie adn as dead ches aesca svar eeetnoasadveouie ae: an

Coefield v. Jersey Cent. Power & Light Co., 53:

F.Supp.2d 685 (D.N.J. 2007)

Cramer v. Consolidated Freightways, Inc., 26

F.3d 683 (9th Cir. 2001) (en banc)

TABLE OF AUTHORITIES — Continued

Custom Data Solutions, Inc. v. Preferred Cap-

ital, Inc., 733 N.W.2d 102 (Mich. Ct. App.

SE icisvbsnnchiecscaspadsavcisiitatais cru muiadesmtariaa

Dougherty v. Parsec, Inc., 824 F.2d 1477 (6th

Ar. 1987)...... dbdiaseteaeetcnion Naelsehastuedeeks ueecamusas

Franchise Tax Bd. v. Construction Laborers Va

cation Trust, 463 U.S. 1 (19838) ........ccccccccsccssccess

Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991).......

Garibaldi v. Lucky Food Stores, Inc., 726 F.2d

I er aea se

Gordon v. Thor Power Tool Co., 205 N.E.2d 55

Eaees Ss A CREE ac aPisncopsvavesessuabenduanieedesbhiseueees

Gregory v. Ashcroft, 501 U.S. 452 (1991)..............

Hanks v. General Motors Corp., 906 F.2d 341

SN REN ET ccc nucacavenscudchivesvlas cnntiuasalecdatccerseasis

Harbor Broad., Inc. v. Boundary Waters Broad

casters, Inc., 636 N.W.2d 560 (Minn. Ct. App.

SEN ant evsauiay aiguekcrnds lacs Auden uc maveds eat wauebesbee

Hassberger v. General Builders’ Supply Co.,

Se ls Os wee CEN IEE Dive cte bcecesvcevnssunecscacesesscis

Hawatian Aturlines, Inc. v. Norris, 512 U.S. 246

S|. EEA Sr erento ac iets, Or Pe arma era Rer mma ae TREO AR

Hayden v. Reickerd, 957 F.2d 1506 (9th Cir

Hi-Way Motor Co. v. International Harvester

Co., 247 N.W.2d 813 (Mich. 1976) ......

ees 26

V1l1

TABLE OF AUTHORITIES ~— Continued

Page

Hydropress Envtl. Servs. v. Township of Upper

Mount Bethel, 836 A.2d 912 (Pa. 2003).................. 11

Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1]

De IN ad vlan hed ech bata ndcsbansvaceredennnteneshduuneiaidsnanh 26

International Ass’n of Bridge, Structural, & Or-

namental Iron Workers v. Walcher & Fox,

Bee Fee BF ED ave ccecn vests kconcsduccupenssaccodenes 19

Jones v. Rath Packing Co., 430 U.S. 519 (1977)........ 11

Keehr v. Consolidated Freightways, Inc., 825

Pee EE, BIT) cicnsevcncarcecvccccastecnacesecesss ss ..20

Kidd v. Southwest Airlines Co., 891 F.2d 540

NI ET cds osc ode then kcibue pendek anaes ddemebeasalousenssnus 15

Kirby v. Allegheny Beverage Corp., 811 F.2d 253

RI a og ce ea seddcp nian seens 21

Lingle v. Norge Div. of Magic Chef, Inc., 486

RS IEE ra css cus pikupundakensusndscsaveusaspedssesinins passim

Livadas v. Bradshaw, 512 U.S. 107 (1994)...........0.... 15

Loewen Group Int'l, Inc. v. Haberichter, 65 F.3d

ee MNS ilo ca, sosccesnapsseaciauvadcsieaséadsivess 16

Lundborg v. Keystone Shipping Co., 981 P.2d

854 (Wash. 1999)...................... i pereteat ge alccivscansacll

Major League Baseball Players Ass’n v. Garvey,

nL casvascaibenvenuaasévacexenss 5

Massachusetts Ass’n of Health Maint. Orgs. v.

Ruthardt, 194 F.3d 176 (1st Cir. 1999) | 10

Milne Employees Ass’n v. Sun Carriers, Inc.,

960 F.2d 1401 (9th Cir. 1991)........... emepeets |

TABLE OF AUTHORITIES — Continued

Morton v. Essex Town Sch. Dist., 443 A.2d 447

(Vt. 1981)

National Treasury Employees Union v. Chertoff,

385 F.Supp.2d 1 (D.D.C. 2005), modification

denied, 394 F.Supp.2d 137 (D.D.C. 2005),

aff’d in part, rev’d in part on other grounds,

452 F.3d 839 (D.C. Cir. 2006)

Northwestern Ohio Adm’rs, Inc. v. Walcher &

Fox, Inc., 270 F.3d 1018 (6th Cir. 2001)

Operating Eng’rs Pension Trust v. Wilson, 915

F.2d 535 (9th Cir. 1990)

Owens v. Press Pub. Co., 120 A.2d

Pharmaceutical Research & Mfrs. of Am. :

Concannon, 249 F.3d 66 (1st Cir. 2001)...

Pharmaceutical Researer: & Mfrs. of Am. v

Walsh, 538 U.S. G44 (ZOOS)......cccccssccccscsceeess

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008)....

Samuel D. Begola Servs. v. Wild Bros., 534

N.W.2d 217 (Mich. Ct. App. 1995)..

Schoolcraft Mem’l Hosp. v. Michigan Dep't of

Cmty. Health, 570 F.Supp.2d 949 (W.D. Mich

2008)

Silverman ex rel. NLRB v. Major League Base

hall Player Relations Comm., Inc., 516 F.Supp.

588 (S.D.N.Y. 1981)

TABLE OF AUTHORITIES — Continued

St. Louis Cardinals, L.P. v. United States,

F.Supp.2d 1043 (E.D. Mo. 2001)

Stringer v. NFL, 474 F.Supp.2d 894 (S.D. Ohio

2007) seb ebesendensebbencaanuiaicuess ne 20, 24, 20

Synagro-WWT, Inc. v. Rush Tp., Pa., 299

F.Supp.2d 410 (M.D. Pa. 2003)...... 1]

Teamsters v. Lucas Flour Co..,

(1962)

Trans Penn Wax Corp. v. McCandless, 50 F.3d

217 (3d Cir. 1995).......

Trevino v. Ramos, 197 F.3d 777 (5th Cir. 1999).

United States v. Comprehensive Drug Testing,

Inc., 513 F.3d 1085 (9th Cir. 2008), rehearing

en banc granted, 545 F.3d 1106 (9th Cir

2003)...

United Steelworkers of Am. v. Rawson, 495

U.S. 362 (1990)

United Telegraph Workers v. Western Union

Corp., 771 F.2d 699 (3d Cir. 1985).

Voilas v. General Motors Corp., 170 F383

(3d Cir. 1999)

Wells v. Firestone ‘Tire & Rubl

N.W.2d 670 (Mich. 1984)

Wells v. General Motors Corp.,

(5th Cir. 1989)

TABLE OF AUTHORITIES — Continued

STATUTES

28 U.S.C. §

29 U.S.C. §

MiIcH. COMP

RULES

S. Ct. Rule 10(c)

S. Ct. Rule 13.3

OTHER AUTHORITIES

John D. Calamari & Joseph M. Perillo, Th:

Law of Contracts § 9.21 (4th ed. 1998)..

Diana P. Cortes, Same Injury; Different Cover

age: How Privatized Insurance Policies Affect

Injured Elite And Non-Elite Professional Ath

letes, 13 Vill. Sports & Ent. L.J. 133 (2006)

Jeffrey L. Kessler & David G. Feher, What Jus

tice Breyer Could Not Know At His Mother's

Knee: The Adverse Effects Of Brown v. Pro

Football On Labor Relations In Professional

Sports, 14-SPG Antitrust 41 (2000)

Scott R. Rosner, The History And Business Of

Contraction In Major League Baseball, 8

Stan. J.L. Bus. & Fin. 265 (2003

TABLE OF AUTHORITIES — Continued

Kenneth Starr, et al., The Law of Preemption

A Report of the Appellate Judges Conference,

American Bar Association 40 (1991)

Jason S. Weiss, The Changing Face Of Base

ball: In An Age Of Globalization, Is Baseball

Still As American As Apple Pie And Chev

rolet?, 8 U. Miami Int’l & Comp. L. Rev. 123

(1999-2000)

OPINION BELOW

The opinion of the Court of Appeals for the

Fourteenth District of Texas is reported at Brocail v.

Detroit Tigers, Inc., 268 S.W.3d 90 (Tex. App

Houston [14th Dist.] 2008, pet. denied) (App. 1-43).

a

BASIS FOR JURISDICTION IN THIS COURT

On April 3, 2008, the Court of Appeals for the

Fourteenth District of Texas issued its opinion and

judgment affirming the trial court’s grant of summary

judgment to the Detroit Tigers, Inc. App. 1-44. On

April 21, 2008, Douglas K. Brocail timely filed a

motion for extension of time to file a motion for

rehearing in the Court of Appeals for the Fourteenth

District of Texas. App. 46-47.

On May 8, 2008, the Court of Appeals for the

Fourteenth District of Texas issued its order granting

the motion for extension of time and setting May 19,

2008 as the deadline for the motion for rehearing.

App. 46-47. Brocail timely filed a motion for

rehearing on May 19, 2008. App. 46-48. On Sep-

tember 25, 2008, the Court of Appeals for the

Fourteenth District of Texas issued its order denying

the motion for rehearing. App. 48.

Brocail timely filed a petition for review in the

Supreme Court of Texas on November 4, 2008. App.

129-137. The order of the Supreme Court of Texas

denying the petition for review was issued on

January 30, 2009. App. 51.

On February 27, 2009, Brocail timely filed a

motion for extension of time to file a motion for

rehearing in the Supreme Court of Texas. App. 50.

Also on February 27, 2009, Brocail submitted his

motion for rehearing to the Supreme Court of Texas.

App. 50.

On March 3, 2009, the Supreme Court of Texas

granted the motion for extension of time and filed the

motion for rehearing as of February 27, 2009. App.

50. The Supreme Court of Texas issued its order

denying the motion for rehearing on April 17, 2009.

App. 51.

This petition for writ of certiorari was filed

within 90 days of the date the Supreme Court of

Texas denied Brocail’s timely-filed motion for re-

hearing. As such, this petition for writ of certiorari is

timely filed under Rule 13.3 of the Rules of the

Supreme Court of the United States.

This Court has jurisdiction pursuant to 28 U.S.C.

- 19R%.

© 125%7(a).

2

STATUTORY PROVISION INVOLVED

Section 301(a) of the Labor Management Rela-

tions Act:

Suits for violation of contracts between an

employer and a labor organization represent-

ing employees in an industry affecting com-

merce as defined 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) (App. 52).

¢ —

STATEMENT OF THE CASE

For decades, management and unions have

negotiated collective bargaining agreements as a way

to achieve their respective labor goals. American

Fed’n of State, County & Mun. Employees v. Board of

Hduc., 577 N.W.2d 79, 84 (Mich. 1998). CBAs govern

various, and usually many, aspects of union members’

employment. See id.; Owens v. Press Pub. Co., 120

A.2d 442, 445 (N.J. 1956). Their “very purpose” is “to

supersede individual contracts with terms which

reflect the strength and bargaining power and serve

the welfare of the group.” Morton v. Essex Town Sch.

Dist., 443 A.2d 447, 449 (Vt. 1981).

4

“Unlike contracts of adhesion, parties to a collec-

tive bargaining agreement usually are able to nego-

tiate on an even playing field.” American Fed’n, 577

N.W.2d at 84. That allows employers and unions to

fairly work out the terms of their contracts, and to

frequently agree on key provisions relating to the

business. Id.

This case involves Major League Baseball’s CBA,

which “establishles] the terms and conditions of em-

ployment of Major League Baseball players.” Szlver-

man ex rel. NLRB v. Major League Baseball Player

Relations Comm., Inc., 516 F.Supp. 588, 591 (S.D.N.Y.

1981). Baseball’s CBA was negotiated by a group

representing the players and a group representing

the teams’ owners. Jeffrey L. Kessler & David G.

Feher, What Justice Breyer Could Not Know At His

Mother’s Knee: The Adverse Effects Of Brown v. Pro

Football On Labor Relations In Professional Sports,

14-SPG Antitrust 41, 44-45 (2000). “The CBA is

enforceable by and against all players and owners

within the sport, regardless of whether or not an

individual player agrees with the terms of the CBA.”

Diana P. Cortes, Same Injury; Different Coverage:

Flow Privatized Insurance Policies Affect Injured Elite

And Non-Elite Professional Athletes, 13 Vill. Sports &

Ent. L.J. 133, 152 n.123 (2006).

Baseball’s CBA addresses numerous issues in-

volving the game and its players, including the

players’ compensation and benefits’; free agency’;

steroid testing’; the grievance process’; revenue dis-

parities between the teams, the level of revenue shar-

ing, and competitive imbalance’; how games would be

conducted if a city outside the United States and

Canada received rights to a team, and how to handle

the expenses, funds, and revenues that international

play would generate’; and of course the general rules

and regulations of the sport’. But “([a] collective bar-

gaining agreement, which is a generalized code to

govern a myriad of unanticipated cases, involves too

' St. Louis Cardinals, L.P. v. United States, 185 F.Supp.2d

1043, 1045 (E.D. Mo. 2001); Cortes, Same Injury; Different

Coverage: How Privatized Insurance Policies Affect Injured Elite

And Non-Elite Professional Athletes, 13 Vill. Sports & Ent. L.J.

at 152.

* Major League Baseball Players Ass’n v. Garvey, 532 U.§

504, 505 (2001); St. Louis Cardinals, 185 F.Supp.2d at 1045.

United States v. Comprehensive Drug Testing, Inc., 513

F.3d 1085, 1139-40 (9th Cir. 2008) (Thomas, J., concurring in

part and dissenting in part), rehearing en banc granted, 545 F.3d

1106 (9th Cir. 2008).

* St. Louis Cardinals, 185 F.Supp.2d at 1045.

° Scott R. Rosner, The History And Business Of Contraction

In Major League Baseball, 8 Stan. J.L. Bus. & Fin. 265, 286

(2003).

* Jason S. Weiss, The Changing Face Of Baseball: In An Age

Of Globalization, Is Baseball Still As American As Apple Pie And

Chevrolet?, 8 U. Miami Int’] & Comp. L. Rev. 123, 128 (1999-

2000).

Cortes, Same Injury; Different Coverage: How Privatized

Insurance Policies Affect Injured Elite And Non-Elite Profession-

al Athletes, 13 Vill. Sports & Ent. L.J. at 152, 152 n.123.

6

many people, too many problems, and too many un-

foreseeable contingencies to provide for every situ-

ation which might arise.” Gordon v. Thor Power Tool

Co., 205 N.E.2d 55, 60 (Ill. Ct. App. 1965). Thus, a

CBA “does not seek to define every duty and right of

the parties to it.” Jd. Indeed,

there is an extensive landscape of federal

and state law dealing with the rights of

workers holding that collective bargaining

agreements do not supersede and cannot

abrogate rights the law accords to workers.

A CBA is not impervious to these numerous

expressions of public policy, both statutory

and court made, that accord’ greater

solicitude to the legal rights of workers.

Lundborg v. Keystone Shipping Co., 981 P.2d 854, 861

(‘Vash. 1999). Correspondingly, Major League Base-

ball’s CBA was never intended to address, and does

not address, every detail relating to a player’s em-

ployment.

In December 1996, the Detroit Tigers acquired

relief pitcher Doug Brocail from the Houston Astros

in a multi-player trade. The Tigers signed Brocail to a

guaranteed contract under which they were obligated

to pay his salary even if he got hurt and became

unable to pitch.

Brocail pitched for the Tigers in 1997, 1998, and

1999. But during the 2000 season, he began to

experience arm problems. His contract obligated the

Tigers to pay him $900,000 in salary in 2000 and

$2,000,000 in salary in 2001.

After his arm problems began, the Tigers re-

quired Brocail to see their team _ physicians.

Symptoms showed that Brocail was suffering from a

partially torn medial collateral ligament. However,

one of the Tigers’ team doctors claimed that Brocail

merely had bo:1e fragments in his elbow and that the

fragments could be removed arthroscopically.

In August 2000, the Tigers placed Brocail on the

disabled list. They encouraged him to undergo

treatment, assuring him that the treatment was

appropriate and that he would be pitching for them

again soon. Brocail specifically asked whether he had

a torn ligament, but was told his injury involved only

loose bone fragments.

Convinced, Brocail underwent surgery on Sep-

tember 22, 2000. He then began physical therapy.

As the Tigers knew, Major League Baseball’s an-

nual winter meetings, during which a large number

of player trades are traditionally made, were ap-

proaching in December. If it appeared that the

surgery on Brocail was successful, the Tigers could

get much more for him in a trade at the winter

meetings and relieve themselves of the large guaran-

teed contract they had given him.

In November 2000, Brocail was still undergoing

physical therapy. He could not even throw a baseball

yet.

Nevertheless, on November 7, 2000, the Tigers

removed Brocail from the disabled list — after the

's)

season was over, less than two months after his

surgery, and in time for the impending winter meet-

ings. During those meetings, the Tigers traded

Brocail back to the Houston Astros, unloading his

$2,000,000 salary.

Before the trade, the Tigers’ workers compen-

sation insurance carrier paid Brocail’s medical ex-

penses. However, the policy did not provide Brocail

any benefits whatsoever for lost earnings and lost

earning capacity.

In reality, Doug Brocail had, not bone chips in his

elbow, but a complete tear of the medial collateral

ligament and a near-complete tear of the flexor

tendon in his pitching arm. He was forced to undergo

major surgery to repair the damage.

The Astros paid Brocail his 2001 salary, but he

was unable to pitch for the next two seasons. Because

his contract expired at the end of the 2001 season, he

was out of baseball and received no salary at all in

2002 and 20038.

Only about 68 percent of athletes who have the

type of surgery Brocail was required to have to fix the

real damage to his arm are able to return to their pre-

injury performance level. Yet Brocail returned to

baseball during the 2004 season, pitching for the

Texas Rangers. And he pitched effectively. However,

because of the injuries inflicted on him by the Tigers,

his salary had plummeted

9

In a Texas court, Brocail sued the Tigers for,

among other things, fraudulent inducement and

negligence. Specifically, he alleged that the Tigers

fraudulently induced him to sign a contract with the

Astros, breached a duty to provide reasonable medical

services, and failed to provide a proper second

opinion.

The Tigers moved for summary judgment. App.

59. They argued that Brocail’s claims were preempted

by section 301 of the Labor Management Relations

Act (““LMRA”) by virtue of Major League Baseball’s

CBA. App. 60-67. In response, Brocail contended that

section 301 did not preempt his claims. App. 68-78.

In a non-substantive order, the trial court granted the

Tigers’ motion. App. 45.

Brocail appealed the summary judgment,

arguing in his brief that section 301 did not preempt

his claims. App. 79-110. The Tigers responded in

their own brief that it did. App. 111-128. The

Fourteenth Court of Appeals, in Houston, Texas,

held that “Brocail’s claims of fraudulent inducement

and failure to provide a proper second opinion are

preempted by the LMRA” and affirmed the summary

judgment. Brocail v. Detroit Tigers, Inc., 268 S.W.3d

90, 111 (Tex. App. Houston [14th Dist.] 2008, pet

denied); App. 42-43. Later, the court of appeals denied

Brocail’s motion for rehearing. App. 48

srocail filed a petition for review in the Supreme

Court of Texas, arguing that the court of appeals had

1O

erred in holding his claims preempted. App. 129-137.

The Tigers filed a response, contending that the court

of appeals’ conclusion that Brocail’s claims were pre-

empted was correct. App. 138-142. Ultimately, the Su-

preme Court of Texas declined review. App. 49.

—®

REASONS FOR GRANTING THE PETITION

— “Preemption is strong medic-

ine. Thus, although the power

to preempt is absolute, its exer-

cise is not lightly to be pre-

sumed.” Massachusetts Ass’n of

Health Maint. Orgs. v. Ruthardt,

194 F.3d 176, 178-79 (1st Cir.

1999) (citing Gregory v. Ash

croft, 501 U.S. 452, 460 (1991).

The above quote is one of a host of directives from

federal courts not to strain or be anxious to find

federal preemption. “Federal preemption ... is not

casually to be dispensed.” Pharmaceutical Research &

Mfrs. of Am. v. Concannon, 249 F.3d 66, 75 (1st Cir.

2001), aff’d, Pharmaceutical Research & Mfrs. of Am

v. Walsh, 538 U.S. 644 (2003). “Federal preemption of

state law is a serious exercise of federal power that is

properly limited to situations of clear congressional

intent|.|” Schoolcraft Mem'l Hosp. v. Michigan Dep’

of Cmty. Health, 570 F.Supp.2d 949, 964 (W.D. Mich

2008). ‘This Court has gone so far as to impose a

1]

“presumption against preemption,” which “‘provides

assurance that the federal-state balance will not be

disturbed unintentionally by Congress or unneces

sarily by the courts.’” Riegel v. Medtronic, Inc., 128

S.Ct. 999, 1013 (2008) (quoting Jones v. Rath Packing

Co., 430 U.S. 519, 525 (1977)).

All these decrees are because “the consequences

of preemption are ‘severe.’” Synagro-WWT) Inc. v.

Rush Tp., Pa., 299 F.Supp.2d 410, 416 (M.D. Pa

2003) (quoting Hydropress Envtl. Servs. v. Township

of Upper Mount Bethel, 836 A.2d 912, 918 (Pa. 2003)).

Preemption is “a serious inroad into the right of a

state” to make and apply its own laws. Alvarado uv.

Hyundai Motor Co., 908 S.W.2d 243, 245 (Tex. App.

San Antonio 1995), aff’d, 974 S.W.2d 1 (Tex. 1998).

“Therefore, the preemption cases are interlaid with

admonitions against an overeagerness to find pre

emption.” /d.

The court of appeals held that Brocail’s claims

that the Tigers breached a duty to provide reasonable

medical services are not preempted by the LMRA.

Brocail, 268 S.W.3d at 102; App. 21. The court was

undoubtedly correct on that point, because the duties

implicated by Brocail’s claims regarding the failure to

provide reasonable medical services did not originate

from Major League Basehball’s CBA, but from the

Michigan Worker's Disability Compensation Act (“the

12

MWDCA”). See MicH. Comp. LAws § 418.315(1); App.

54."

But the court of appeals also held that the LMRA

preempted Brocail’s claims that the Tigers fraudu-

lently induced him to sign a contract with the Astros

and failed to provide a proper second opinion because

those claims require the interpretation of Baseball’s

CBA. Brocail, 268 S.W.3d at 102-03; App. 23-24.

Below, Brocail will show the Court that the court of

appeals was wrong, and explain why the Court

should grant review

Determining federal preemption is essentially a

search for “the intent of Congress.” California Fed.

Saus. & Loan Ass’n v. Guerra, 479 U.S. 272, 280

(1987). Congress passed the LMRA in 1947. National

Treasury Employees Union v. Chertoff, 385 F.Supp.2d

l, 29 (D.D.C. 2005), modification denied, 394

F.Supp.2d 137 (D.D.C. 2005), aff’d in part, rev’d in

part on other grounds, 452 F.3d 839 (D.C. Cir. 2006)

In so doing, its goals were to “promotle] the arbi-

tration of labor contract disputes [and] secur[e] the

uniform interpretation of labor contracts.” Balcorta |

Twentieth Century-Fox Film Corp., 208 F.3d 1102,

1108-09 (9th Cir. 2000

lt is undisputed that Michigan law applies in this cass

» trial court granted the Tigers’ motion to apply Michigan law

not opp sed Che court Tt appeals 1;soO ipplie i

Bro f 268 S.W.34d at 10 1; App

In that regard, section 301(a) of the LMRA pro-

vides

Suits for violation of contracts between an

employer and a labor organization repre-

senting employees in an industry affecting

commerce ... or between any such labor

organizations, may be brought in any district

court in the United States having juris

diction 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); App. 52. In some cases, but

obviously not in all, this section has preemptive

effect. Wells v. General Motors Corp., 881 F.2d 166,

172 (5th Cir. 1989); compare Hawaiian Airlines, Inc.

v. Norris, 512 U.S. 246, 261 (1994) (observing that

section 301 does not preempt “state rules that

proscribe conduct, or establish rights and obligations,

independent of a labor contract”) with Caterpillar,

Inc. v. Williams, 482 U.S. 386, 394 (1987) (noting that

section 301 preempts state claims “founded directly

on mghts created by collective-bargaining agree-

ments, and also claims ‘substantially dependent on

analysis of a collective-bargaining agreement”

(citation omitted ))

‘The intent of LMRA’s pre-emptive reach is t

fashion a uniform body of law regarding collective

bargaining agreements and other labor contract

Trevino v. Ramos, 197 F.3d 777, 779 (5th Cir. 1999

This Court has explained exactly why it important

ion 301 have preemptive scops

14

The possibility that individual contract

terms might have different meanings under

state and federal law would inevitably exert

a disruptive influence upon both the nego-

tiation and administration of collective

agreements. Because neither party could be

certain of the rights which it had obtained or

conceded, the process of negotiating an

agreement would be made immeasurably

more difficult by the necessity of trying to

formulate contract provisions in such a way

as to contain the same meaning under two or

more systems of law which might someday

be invoked in enforcing the contract.

The importance of the area which would be

affected by separate systems of substantive

law makes the need for a single body of

federal law particularly compelling. The or

dering and adjusting of competing interests

through a process of free and voluntary

collective bargaining is the keystone of the

federal scheme to provide industrial peace

Teamsters v. Lucas Flour Co.. 369 U.S. 95. 103-04

(196%).

But this Court also has observed that “not every

dispute concerning employment, or tangentially in

volving a provision of a collective-bargaining agree

ment, is pre-empted by § 301 or other provisions of

the federal labor law.” Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 211 (1985)

[Elven under Y 30] we have never in

that any action merely relating to a

15

within the coverage of §301 arises ex-

clusively under that section. For instance, a

state battery suit growing out of a violent

strike would not arise under § 301 simply

because the strike may have been a violation

of an employer-union contract.

Franchise Tax Bd. v. Construction Laborers Vacation

Trust, 463 U.S. 1, 25 n.28 (1983).

This “useful” restriction means that “although a

plaintiff is a member of the collective bargaining unit,

he may assert legal rights independent of the CBA

under state law, so long as those rights do not derive

from provisions of a CBA.” Kidd v. Southwest Airlines

Co., 891 F.2d 540, 544 (5th Cir. 1990) (citing Williams,

482 U.S. at 394-95). If resolving a state-law cause of

action does not require construing a CBA, the cause

of action is “independent” of the CBA and not

preempted. Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 407 (1988). Thus, preemption is limited

only to claims that “depend[] upon the meaning of a

collective-bargaining agreement|[.|]” /d. at 405-06.

“The plaintiff’s claim is the touchstone for this

analysis; the need to interpret the CBA must inhere

in the nature of the plaintiff’s claim.” Cramer uv.

Consolidated Freightways, Inc., 255 F.3d 683, 691

(9th Cir. 2001) (en banc). When the parties do not

dispute the meaning of contract terms, the fact that a

CBA will be consulted in the course of state-law

litigation does not require preemption. Livadas uv.

Bradshaw, 512 U.S. 107, 124 (1994). In other words,

the court’s mere examination of a CBA to determine

16

the preemption issue is not tantamount to inter-

preting the CBA. Loewen Group Inti, Inc. ov.

Haberichter, 65 F.3d 1417, 1423 (7th Cir. 1995); Milne

Employees Ass’n v. Sun Carriers, Inc., 960 F.2d 1401,

1409 (9th Cir. 1991), cert. denied, 508 U.S. 959 (1993).

“If it were, the section 301 pre-emption doctrine

would swallow the rule that employees covered by

collective bargaining agreements are entitled ‘to

assert legal rights independent of that agreement[.]’”

Miine, 960 F.2d at 1410 (quoting Caterpillar, 482 U.S.

at 396) (emphasis in Caterpillar). And of course the

simple fact that a defense 1s based on a CBA is by

itself insufficient to require preemption. Williams,

482 U.S. at 398-99; Cramer, 255 F.3d at 690.

That Brocail’s claims sound in tort is especial);

significant. “If there is a free-standing state tort duty,

the Supreme Court has repeatedly advised that ‘it

would be inconsistent with congressional intent .. . to

pre-empt state rules that proscribe conduct, or

establish rights and obligations, independent of a

labor contract.’” Brown v. NFL, 219 F.Supp.2d 372,

379-80 (S.D.N.Y. 2002) (quoting Allis-Chalmers Corp.,

471 U.S. at 211-12). So in tort actions, a court must

consider “whether evaluation of the tort claim is

inextricably intertwined with consideration of the

terms of the labor contract.” Allis-Chalmers Corp.,

471 U.S. at 213.

When a tort action brought in state court is not

“inextricably intertwined” with a CBA, the claim is

considered to be distinct and is not preempted by

section 301. Lingle, 486 U.S. at 407. Stated differ-

ently, if “the state-law claim can be resolved without

17

interpreting the agreement itself, the claim is

‘Independent’ of the agreement for § 301 pre-emption

purposes.” Jd. at 410. Thus, the preemption of section

301 does not apply to every state-law claim that

relates in some manner to a CBA, or to all parties

covered by a CBA. Allis-Chalmers Corp., 471 U.S. at

211-12. And if a tort claim alleges a violation of a duty

“owed to every person in society,” as opposed to a duty

owed only to empleyees covered by the CBA, it is

independent of the CBA. Brown, 219 F.Supp.2d at

380 (citing United Steelworkers of Am. v. Rawson, 495

U.S. 362 (1990)).

THE FOURTEENTH COURT’S ANALYSIS

OF BROCAIL’S CLAIM FOR FRAUDU-

LENT INDUCEMENT CONFLICTS WITH

THIS COURT’S HOLDINGS ON FEDERAL

PREEMPTION.

The court of appeals held that, “Because the CBA

governs assignment of his contract, Brocail’s claim

that the [Tigers] fraudulently induced him to enter a

contract with the Astros is preempted. In particular,

it is mecessary to interpret the CBA to determine

whether Brocail’s consent to the assignment was

necessary, and whether reliance on any repre-

sentation by the [Tigers] concerning assignment of

his contract was reasonable in light of the CBA.”

Brocail, 268 S.W.3d at 103 (citation omitted); App. 23-

24.

Whether Brocail’s consent was necessary is com-

pletely irrelevant. For his consent to be unnecessary

18

would not legitimize the Tigers’ actions. And if his

consent was necessary, it still could not have been

freely given, because in Michigan as everywhere,

“fraud vitiates everything it touches.’” Custom Data

Solutions, Inc. v. Preferred Capital, Inc., 733 N.W.2d

102, 105 (Mich. Ct. App. 2006) (quoting John D.

Caiamari & Joseph M. Perillo, Tie Luw of Contracts

§ 9.21 at 340-41 (4th ed. 1998)).

Furthermore, “Fraud in the inducement occurs

where a party materialiy misrepresents future con-

duct under circumstances in which the assertions

may reasonably be expected to be relied upon and are

relied upon.” Samuel D. Begola Servs. v. Wild Bros.,

534 N.W.2d 217, 219 (Mich. Ct. App. 1995). No

provision of the CBA sets a standard for reasonable

reliance or somehow precluded Brocail from relying

on the Tigers’ representations.

Resolving Brocail’s fraudulent inducement claim

does not require interpretation of Major League

Baseball’s CBA. It is state law, not Baseball’s CBA,

which imposed on the Tigers a duty not to make

fraudulent misrepresentations. See Hi-Way Motor Co.

v. International Harvester Co., 247 N.W.2d 813, 815-

16 (Mich. 1976). That duty, of course, is owed to the

general public, not just Brocail. See Hassberger v.

General Builders’ Supply Co., 182 N.W. 27, 28 (Mich.

1921).

Several courts have held that section 301 does

not preempt a state-law claim for fraud. See, e.g.,

Northwestern Ohio Adm’rs, Inc. v. Walcher & Fox,

19

Inc., 270 F.8d 1018, 1031 (6th Cir. 2001) (“Because

ruling on the fraud claim does not involve the inter-

pretation of a collective bargaining agreement, ruling

on that claim presents no challenge to the uniformity

of federal law governing labor contracts. In short,

section 301 does not preempt Walcher & Fox’s claim

of fraud in the inducement.”), cert. denied, Inter-

national Ass’n of Bridge, Structural, & Ornamental

Tron Workers v. Walcher & Fox, Inc., 535 U.S. 1017

(2002); Votlas v. General Motors Corp., 170 F.3d 367,

378 (3d Cir. 1999) (“In sum, the fraud claim in this

case is not directly based upon the collective bar-

gaining agreements in force between the parties; nor

will the resolution of the elements of common-law

fraud require the interpretation of those bargaining

agreements. ... Consequently there is no ground for

section 301 preemption in this case.”); Trans Penn

Wax Corp. v. McCandless, 50 F.3d 217, 232 (3d Cir.

1995) (where employees covered by CBA brought

claims against their employer for fraud, court held

that section 301 did not preempt fraud claims

because “[a]n examination of the employer’s behavior,

motivation, and statements does not substantially

depend upon the terms of the collective bargaining

agreement”); Operating Eng’rs Pension Trust v.

Wilson, 915 F.2d 535, 539 (9th Cir. 1990) (“We hold

that the Wilsons’ state tort claim for fraud in the

inducement is not preempted by section 301 because

it does not require reference to the collective bar-

gaining agreement.”), cert. denied, 505 U.S. 1212

(1992). And it is not just state-law claims involving

fraud that fall outside section 301 preemption. Courts

20

frequently have held that state-law claims of other

intentional torts brought by employees covered by a

CBA are not preempted, either. See, e.g., Hayden v.

Reickerd, 957 F.2d 1506, 1511, 1513 (9th Cir. 1991)

(conspiracy and battery); Galvez v. Kuhn, 933 F.2d

773, 778-80, 781 (9th Cir. 1991) (assault and battery);

Hanks v. General Motors Corp., 906 F.2d 341, 345

(8th Cir. 1990) (intentional infliction of emotional

distress); Keehr v. Consolidated Freightways, Inc.,

825 F.2d 133, 135-37 (7th Cir. 1987) (invasion of

privacy and intentional infliction of emotional dis-

tress).

Dougherty v. Parsec, Inc., 824 F.2d 1477 (6th Cir.

1987), is a particularly apt example. In that case, the

Sixth Circuit held that the plaintiff’s tortious inter-

ference claim was subject to section 301 preemption.

Id. at 1478-79. This Court vacated the Sixth Circuit’s

judgment and remanded the case to the Sixth Circuit

for reconsideration in the light of Lingle. Dougherty v.

Parsec, Inc., 486 U.S. 1049 (1988). The Sixth Circuit

promptly reversed its earlier decision. Dougherty uv.

Parsec, Inc., 872 F.2d 766, 771 (6th Cir. 1989). Under

Lingle and similar opinions, the court of appeals

should have reached a comparable result here.

Cases in which a court has found that an

intentional-tort claim is preempted are _ readily

distinguishable. For example, in Carter v. Ford Motor

Co., 121 F.3d 1146, 1148 (8th Cir. 1997), the em-

ployee’s claims for intentional infliction of emotional

distress and fraudulently misrepresenting the facts

related to his termination were preempted by section

21

301 because resolution of the claims would require

the court to determine whether the employee's dis-

charge was warranted under the terms of a CBA. /d.

at 1149. And in Kirby v. Allegheny Beverage Corp.,

811 F.2¢ 253 (4th Cir. 1987), the employee’s invasion-

of-privacy claim was preempted by section 301

because resolution of the claim would involve con-

sideration of the employer’s power under a CBA to

conduct searches of employees and their cars when

drug use is suspected. /d. at 256. Here, by contrast, it

is not necessary to interpret the CBA to resolve

Brocail’s fraud claim.

Il. THE FOURTEENTH COURT’S ANALYSIS

OF BROCAIL’S CLAIM FOR THE FAIL-

URE TO PROVIDE A SECOND OPINION

ALSO CONFLICTS WITH THIS COURT’S

HOLDINGS ON FEDERAL PREEMPTION.

Like their duty not to fraudulently induce, the

Tigers’ duty to provide a second opinion exists in state

law; specifically, in section 418.315(1) of the MWDC.

Section 418.315(1) provides in relevant part:

The employer shall furnish, or cause to be

furnished, to an employee who receives a

personal injury arising out of and in the

course of employment, reasonable medical,

surgical, and hospital’ services and medi-

cines, or other attendance or treatment rec-

ognized by the laws of this state as legal,

when they are needed.

MicH. Comp. LAws § 418.315(1); App. 54. There is no

doubt that this law creates duties that are owed to

the general public. See Wells v. Firestone Tire &

Rubber Co., 364 N.W.2d 670, 674 (Mich. 1984) (“The

statutory workers’ compensation scheme was enacted

for the protection of both employees and employers

who work and do business in this state.”).

In holding this claim was preempted. the court of

appeals pointed to the fact that the CBA gives the

player the right to seek a second opinion from a list of

medical specialists. Brocail, 268 S.W.3d at 103; App.

22-23. But the court failed to recognize that a duty to

provide a second opinion also falls within the

“reasonable medical ... services” required by section

418.315(1) of the MWDC. Because such a duty may

be discerned from section 418.315(1), it is not

necessary to interpret the CBA to resolve that claim

and the claim is not preempted. “[E]ven if dispute

resolution pursuant to a collective-bargaining agree-

ment, on the one hand, and state law, on the other,

would require addressing precisely the same set of

facts, as long as the state-law claim can be resolved

without interpreting the agreement itself, the claim is

‘independent’ of the agreement for § 301 preemption

purposes.” Lingle, 486 U.S. at 409-10; see Coefield uv.

Jersey Cent. Power & Light Co., 532 F.Supp.2d 685,

692 (D.N.J. 2007) (quoting Lingle and observing that

this Court found it “irrelevant” that the state-law

analysis may involve the same factual considerations

as an inquiry under the CBA).

23

The recent high-profile case of Stringer v. NFL,

474 F.Supp.2d 894 (S.D. Ohio 2007), is analogous.

Korey Stringer, an offensive lineman for the Min-

nesota Vikings, participated in the Vikings’ 2001

summer training camp. /d. at 898. During a practice,

he suffered heat exhaustion. Jd. At the next morning’s

practice, he developed heatstroke and subsequently

died from its complications. Jd.

Kelci Stringer, Korey Stringer’s widow and the

personal representative of his estate, sued several

entities. 474 F.Supp.2d at 898. In general, she con-

tended that Korey Stringer was forced to participate

in practices conducted in extreme heat and humidity

while wearing unsafe, heat-retaining, league-mandated

equipment and without proper acclimatization, super-

vision, or medical care. /d.

Count four of her complaint alleged claims of

negligence against the NFL and NFL Properties. 474

F.Supp.2d at 898, 911. Specifically, count four

asserted that the NFL had a duty to ensure that the

equipment and materials it required NFL players to

wear were of the highest possible quality and suffi-

cient to protect players from the risk of injury,

including an increased risk of heat-related illness. Jd.

at 899, 911-12. Count four also claimed that NFL

Properties had a duty to ensure that the equipment

and materials it licensed and approved were of the

highest possible quality and sufficient to protect

players from the risk of injury, including an increased

risk of heat-related illness. Jd. at 899, 912. Count four

further alleged that the NFL and NFL Properties

24

breached those duties by requiring, approving, and/or

licensing the use of Riddell helmets and shoulder

pads, knowing or having reason to know that those

products increased the risk of heat-related illness. /d.

at 899, 912.

The defendants argued that all of Kelci Stringer’s

claims should be dismissed because they were pre-

empted by section 301. 474 F.Supp.2d at 899. Re-

garding count four, the court disagreed. Jd. at 912-13.

In part, it reasoned:

Nor is resolution of Count 4 substantially

dependent on an interpretation of any of the

terms of the CBA, which is largely silent on

the topic of equipment safety. As discussed

earlier, although the CBA creates a “Joint

Committee on Player Safety and Welfare .

for the purpose of discussing the player

safety and welfare aspects of playing equip-

ment,” (CBA, Art. XIII, §1(a)), the NFL

Defendants are not members of that com-

mittee and are not required to adopt the

committee’s recommendations. In _ short,

there is no need to interpret that provision,

or any other, to determine whether the NFL

Defendants owed Korey Stringer a duty to

ensure that he had safe equipment, whether

they breached that duty, or whether the

alleged breach proximately caused his death.

The Court therefore concludes that Count 4

of Plaintiff’s complaint is not preempted.

Id. at 912-13. The duty to ensure that the equipment

used by NFL players adequately protects against risk

2D

of injury or illness, “if it exists, clearly has its source

in the common law,” not the CBA. /d. at 912.

Similarly, the duty to provide a second opinion

exists in Michigan law — separately, independently,

from Baseball’s CBA. In this circumstance, there is no

preemption. See Lingle, 486 U.S. at 409-10.

The court of appeals erred in holding that

Brocail’s claims regarding fraud and the failure to

provide a second opinion are preempted. As this

Court observed in Lingle, “there is nothing novel

about recognizing that substantive rights in the labor

relations context can exist without interpreting

collective-bargaining agreements.” 486 U.S. at 411.

Il. THE COURT SHOULD GRANT REVIEW TO

CLARIFY AND VINDICATE THE STAN-

DARD FOR DETERMINING WHETHER

STATE TORT CLAIMS DEPEND ON THE

MEANING OF A CBA.

For at least two reasons, the Court should grant

review and decide this case. First, the court of

appeals drastically relaxed the standard for deter-

mining whether state tort claims actually depend on

the meaning of a CBA. The court pushed the

standard from “intertwined” to, essentially, whether

the case has anything at all to do with a CBA.

“The overriding purpose of federal labor law is to

allow the parties, to the extent possible, to settle their

own disputes in accordance with their contractual

26

agreements.” United Telegraph Workers v. Western

Union Corp., 771 F.2d 699, 704 (3d Cir. 1985). But in

this case, the plaintiff’s claims have nothing whatso-

ever to do with the parties’ contractual agreements

The laudable “overriding purpose” cannot possibly be

served by a holding that Brocail’s state tort-law

claims are preempted by section 301.

“(T|the essence of the exercise [of determining

federal labor law preemption] is a balance of state

and federal interests.” Garibaldi v. Lucky Food Stores,

Inc., 726 F.2d 1367 (9th Cir. 1984). Here, Texas’s in-

terest in providing a tort-law remedy for one of its

citizens should have prevailed. Only because the court

of appeals applied too loose a standard, it did not.

Second, “(t]he presumption against preemption is

a necessary requirement for a properly functioning

and well-balanced federal system.” Harbor Broad.,

Inc. v. Boundary Waters Broadcasters, Inc., 636 N.W.2d

960, 564 n.1 (Minn. Ct. App. 2001). It is “crucial in

our federal system[.]” Hyundai Motor Co. v. Alva

rado, 974 S.W.2d 1, 5 (Tex. 1998). “For if in close or

uncertain cases a court proceeds to preempt state

laws where that result was not clearly the product of

Congress’s considered judgment, the court has eroded

the dual system of government that ensures our liber-

ties, representation, diversity, and effective gover-

nance.” Jd. (quoting Kenneth Starr, et al., The Law of

Preemption: A Report of the Appellate Judges Con-

ference, American Bar Association 40 (1991)).

[f Congress intended that federal law preempt

State-law remedies, then certainly the presumption

against federal preemption of state law is overcome.

See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947). But there is not the slightest indication that

Congress intended preemption in cases like this. By

concluding otherwise, the court of appeals converted

the vital presumption against preemption from gold

into dross.

The court of appeals’ errors are substantial. The

court decided an important federal question the

standard for determining whether state tort claims

actually depend on the meaning of a CBA — in a way

that conflicts with the relevant decisions of this

Court. As such, Brocail respectfully asserts that re

view is warranted. See S. Ct. Rule 10(c)

o— -

CONCLUSION

For the above and foregoing reasons, Brocail

respectfully requests that the Court grant this peti

tion for writ of certiorari.

Respectfully submitted,

LEVON G. HOVNATANIAN

MARTIN, DISIERE, JEFFERSON

& WispoM, L.L.P.

808 Travis, Suite 1800

Houston, Texas 77002

(713) 632-1700 — Telephone

(713) 222-0101 — Fax

Attorney for Petitioner

Douglas K. Brocail

App. |]

268 S.W.3d 90

Court of Appeals of ‘Texas,

Houston (14th Dist.)

Douglas K. BROCAIL, Appellant

v.

DETROIT TIGERS, INC., Appellee

No. 14-06-00557-CV.

April 3, 2008.

Rehearing Overruled Sept. 25, 2008

Bruce E. Ramage, Levon G. Hovnatanian, Thomas

W. Pirtle, Michael Jude Lowenberg, Dale Jefferson,

Houston, TX, for appellants.

Jeffrey Stewart Davis, Peter Scaff, Houston, TX,

for appellees.

Panel consists of Justices YATES, FOWLER,

GUZMAN.

OPINION

EVA M. GUZMAN, Justice

In this case, a major league baseball player for

the Detroit Tigers (the “Club”) sued the Club for

injuries to his pitching arm. The Club was granted

summary judgment on the grounds, inter alia, that

the player’s claims were barred by the federal Labor

Management Relations Act, the Michigan Workers

Disability Compensation Act, and Michigan’s statute

of frauds. We affirm

App. 2

I. FACTUAL AND PROCEDURAL BACK-

GROUND

Appellant Douglas Brocail is a professional relief

pitcher and a union member of the Major League

Baseball Players Association. As such, his employ-

ment agreements with major league baseball teams

(“Clubs”) are subject to a collective bargaining agree-

ment (“CBA”) negotiated between the players and the

member Clubs. This case concerns alleged acts or

omissions that occurred or began during the 2000

baseball season, when Brocail was employed by

appellee, the Detroit Tigers, Inc.

A. The Employment Documents

Pursuant to the terms of the CBA, Players and

Clubs are required to execute a specific form of a

standard contract (the Uniform Player’s Contract or

“UPC”) when entering into an employment agree-

ment. Under the UPC governing Brocail’s employ-

ment by the Club, he received a $600,000 signing

bonus, a salary of $900,000 for the 2000 season, and a

guaranteed salary of $2 million for the 2001 season.

In section 6(a) of the UPC, the parties agreed that

Brocail’s contract could be assigned to any other

baseball clubs. In section 6(b), Brocail agreed that,

“shoula the Club contemplate an assignment of this

contract to another Club or Clubs, the Club’s physi-

clan may furnish to the physicians and officials of

such other Club or Clubs all relevant medical infor

mation relating to” Brocail. Brocail further agreed to

App. 3

“accept, abide by and comply with all provisions of

the Major League Agreement, the Major League

Rules, and the Rules or Regulations of the League of

which the Club is a member....” These provisions

included League Regulation 2, which provides as

follows:

The Player, when requested by the Club,

must submit to a complete physical exam1-

nation at the expense of the Club, and if

necessary to treatment by a regular physi-

cian or dentist in good standing.... Disa-

bility directly resulting from injury sustained

in the course and within the scope of his

employment under this contract shall not

impair the right of the Player to receive his

full salary for the period of such disability or

for the season in which the injury was sus-

tained (whichever period is shorter), together

with the reasonable medical and hospital

expenses incurred by reason of the injury

and during the term of this contract or for a

period of up to two years from the date of

initial treatment for such injury, whichever

period js longer, but only upon the express

prerequisite conditions that (a) written no-

tice of such injury, including the time, place,

cause and nature of the injury, is served

upon and received by the Club within twenty

days of the sustaining of said injury and (b)

the Club shall have the mght to designate

the doctors and hospitals furnishing such

App. 4

medical and hospital services. Failure to give

such notice shall not impair the rights of the

Player, as herein set forth, if the Club has

actual knowledge of such injury. All work-

men’s compensation payments received by

the Player as compensation for loss of income

for a specific period during which the Club is

paying him in full, shall be paid over by the

Player to the Club. Any other disability may

be ground for suspending or terminating this

contract.

The parties also included “Supplemental Agree-

ments” in the UPC, such as the following:

The Club and the Player covenant that this

contract, the Basic Agreement and the Agree-

ment Re Major League Baseball Players

Benefit Plan effective April 1, 1996 and

applicable supplements thereto fully set

forth all understandings and agreements be-

tween them, and agree that no other under-

standings or agreements, whether heretofore

or hereafter made, shall be valid, recog-

nizable, or of any effect whatsoever, unless

expressly set forth in a new or supplemental

contract executed by the Player and the Club

(acting by its President or such other officer

as shall have been thereunto duly authorized

by the President or Board of Directors as

evidenced by a certificate filed of record with

the League President and Commissioner)

and complying with the Major League Rules.

App. 5

B. Agreement to Provide Medical Ser-

vices

The Club represents that under an “Agreement

to Provide Medical Services” to the Club, the Henry

Ford Center for Athletic Medicine (the “Center”)

agreed to select and provide well-qualified medical

doctors to act as “team physicians” in exchange for a

fixed annual fee.” The Center and the Club further

agreed that such physicians would remain employees

of the Center, and that the “[a]greement is intended

solely for the benefit of the Parties hereto and shall

not be deemed to create any rights in any other

person or entity.” The Center designated Dr. Terrence

Lock, a board-certified orthopaedic surgeon, to act as

one of the team physicians.

C. Injury and Treatment While Employed

by the Tigers

On June 14, 2000 in Detroit, Michigan, Brocail

began to complain of pain and inflammation in his

right elbow. A follow-up injury report contained the

notation that an x-ray performed the same day

revealed spurring and new bone formation at the

medial epicondyle. Another note entered two days

later records that, per Dr. Lock, Brocail had “spurring

with inflammation medial epicondyle,” but the liga-

ments and tendons were intact. An injury report also

No executed copy of the contract was included in the

summary judgment evidence

App. 6

records that Dr. Lock examined Brocail again on June

28, 2000, and Brocail was still tender but “getting

better,” and physicians would “consider CT if [the

pain] persist[ed.]” Brocail was examined and x-rayed

again on July 10, 2000.

After pitching on August 18, 2000, Brocail experi-

enced increased medial soreness and mild swelling.

He was placed on the disabled list; had additional x-

rays on August 21; and was examined by Dr. Failla,

another physician employed by the Center, on August

22, 2000. The following day, Brocail sought a secona

opinion from Dr. James Andrews in Birmingham,

Alabama. The Club paid fer Brocail’s consultation

with Dr. Andrews.

Brocail returned to Michigan, and at the begin-

ning of September 2000, he was removed from the

disabled list. After he practiced pitching on Sep-

tember 6 or 7, 2000, he was again restricted from

throwing, and additional tests were performed on

September 19, 2000.

On September 22, 2000, Dr. Kyle Anderson,

another of the Center’s physicians, performed arthro-

scopic surgery on Brocail’s elbow. Dr. Anderson noted

“very significant spur formation” and removed two

loose bone fragments. The sutures were removed on

September 29, 2000, and Brocail was placed on the

60-day disabled list. Brocail decided to return to his

home in Missouri City, Texas while recuperating from

App. 7

surgery, and he received rehabilitation services in the

neighboring city of Sugar Land.” He was removed

from the disabled list in the first half of November

2000, and on or about December 11, 2000, the Club

traded Brocail to the Houston Astros. Brocail’s

medical bills through December 20, 2000 were paid

by the Club’s worker’s compensation insurance

carrier.

D. Injury and Treatment While Employed

by the Astros

On April 4, 2001, Brocail heard a loud pop in his

right elbow while pitching in Texas. He played in four

more “rehabilitation outings,” then consulted Dr.

Thomas Mehlhoff in Houston on April 17, 2001. He

was diagnosed with a full tear of the medial collateral

ligament and a partial tear of the flexor tendon. He

subsequently had surgery in Houston to reconstruct

the medial collateral ligament. Due to the long

recovery time from the surgery, Brocail did not con

tinue to pitch for the Astros. The Astros paid Brocail’s

2001 salary, but when his contract expired at the end

of that season, it was not renewed. Brocail was not

paid a salary for the 2002 and 2003 seasons. Accord-

ing to Brocail, he returned to pitching for the Texas

Rangers in 2004.

“ Brocail had been under contract to the Houston Astros

before joining the Detroit Tigers and maintained a permanent

residence in Texas

App. 8

E. Brocail’s Allegations

On September 20, 2002, Brocail sued his Michi-

gan and Texas health care providers. In addition, he

sued the Club for negligence, fraud, fraudulent con-

cealment, fraudulent inducement, negligent misrep-

resentation, gross negligence, and breach of contract.

According to Brocail, the Club “encouraged and/or

directed him to seek treatment from team personnel

that did not possess the expertise, skill, training,

experience, ability, competence and/or knowledge to

properly diagnose and treat an elbow injury sus-

tained by a major league baseball pitcher. .. .” Brocail

further alleged that the Club encouraged or directed

him to undergo treatment that would not cure his

injury and failed to (a) establish policies and pro-

cedures for the treatment of its players, (b) follow

team physicians’ orders, (c) fully disclose the true

extent of his condition and his fitness to play base-

ball, (d) use reasonable care to protect his health and

investment, (e) fully advise him of the adverse effects

of continued medical and rehabilitative treatment, (f)

advise him of options concerning his condition, (g)

perform appropriate examinations, and (h) advise the

Houston Astros of the true extent of his ability to play

baseball. In addition, he contended the Club was

negligent in hiring team personnel. Brocail also

pleaded the discovery rule, agency, ostensible agency,

agency by estoppel, equitable estoppel, promissory

estoppel, vicarious liability, and “intentional torts,”

and sought punitive damages and attorneys’ fees.

Finally, he pleaded that:

App. 9

[Brocail’s] claims are not within the scope of

any purportedly applicable worker’s compen-

sation laws and are not barred by any

exclusive remedy provision therein.... As a

professional athlete whose average weekly

wage was not less than 200% of the state

average weekly wage, Brocail had no right to

the recovery of weekly compensation benefits

and any exclusive remedy provision does

[not] apply.*

On January 31, 2003, the trial court dismissed

Brocail’s claims against the Michigan health care

providers for lack of personal jurisdiction. Brocail v.

Anderson, 132 S.W.3d 552 (Tex.App. — Houston [14th

Dist.] 2004, pet. denied). Brocail subsequently non-

suited his claims against the remaining health care

providers.

F. Summary Judgment

On June 29, 2005, the Club moved for final sum

mary judgment on the following six grounds:

(i) Section 301 of the Labor-Management

Relations Act (“LMRA”) preempts and bars

Brocail’s claims because (a) he did not assert

Brocail alleged that “(|djuring the 2000 season, Brocail

developed an injury to his pitching elbow while playing for

defendant.” He further alleged that his “injury occurred in Texas

when he was a resident of the State of Texas, and while he

was no longer employed by the Defendant.”

29 U.S.C. §§ 141-87

App. 10

his claim within the applicable federal six-

month statute of limitations, and (b) he

failed to exhaust his remedies under the

collective bargaining agreement;

(ii) the exclusive-remedy provision of the

Michigan Worker’s Disability Compensation

Act (the “WDCA”) bars Brocail’s claims;

(iii) Michigan’s statute of frauds’ bars

Brocail’s claims because the alleged oral

promises regarding medical treatment or

warranties were not in writing;

(iv) Brocail’s promissory estoppel claim

fails as a matter of law because (a) any such

promise is not sufficiently clear and definite

to allow recovery, (b) Brocail could not have

reasonably relied upon the alleged promise

as a matter of law, and (c) any promissory

estoppel claim is not viable in light of the

contract between Brocail and the Club;

(v) Brocail’s vicarious liability theories fail

as a matter of law because (a) the medical

providers for whom Brocail contends the

Club is vicariously liable are independent

contractors, and (b) the purported wrong-

doers are within the scope of immunity

provided under applicable worker’s compen-

sation law; and

J

The Club asserted, in the alternative, that Brocai!’s claims

are barred by Texas workers’ compensation law

App. 11

(vi) Brocail’s “medical fraud” claims fail as

a matter of law because (a) Brocail cannot

meet the high burden required to show an

“intentional act” under Michigan worker’s

compensation law, (b) Brocail’s allegations do

not relate to a past or existing fact, (c) his

fraud claims are “merely recast medical

negligence claims,” (d) any alleged misrep-

resentation could not have caused Brocail

injury, and (e) any alleged reliance was

unreasonable.

The trial court granted the motion without

specifying its grounds. Brocail appeals the judgment

regarding his tort claims, but does not appeal the

judgment on his claim for breach of contract.

Il, ISSUES PRESENTED

Brocail presents nine issues on appeal, and the

parties agree that Michigan substantive law applies.’

In his first issue, Brocail contends the Club failed to

assert in its motion for summary judgment that

specific parts of the CBA or UPC required interpre-

tation in order to resolve Brocail’s claims. He argues

in his second and third issues that no interpretation

of any part of the CBA or UPC is required, and no

part of either agreement created or precluded the

We continue to apply Texas procedural law even when

applying the substantive law of another state. Moonlight Inuvus

Lid. v. John, 192 S.W.3d 890, 894 (Tex.App Eastland 2006,

pet denied)

App. 12

duties that are the bases of his tort claims. In his

fourth issue, Brocail contends that the exclusive-

remedy provision of the WDCA does not bar damage

claims for which it affords no compensation. Brocail

argues in his fifth issue that the Club failed to negate

the misrepresentation, reliance, and causation ele-

ments of his fraud claims. In his sixth issue, Brocail

contends that the intentional-conduct exception to the

exclusive-remedy provision of the WDCA applies. In

his seventh issue, he challenges the Club’s assertion

that the Michigan statute of frauds bars his claims.

He argues in his eighth issue that the Club did not

meet its burden to negate Brocail’s various liability

allegations. Finally, Brocail contends in his ninth

issue that the Club’s misrepresentations are suffi-

ciently definite to support Brocail’s claim for prom-

issory estoppel.

fil. STANDARD OF REVIEW

We analyze a traditional motion for summary

judgment under a well-established standard of re

view. The movant bears the burden to show that

there is no genuine issue of material fact, and that it

is entitled to judgment as a matter of law. TEX.R.

CIV. P. 166a(c). We review the motion and the evi

dence de novo, taking as true all evidence favorable to

the nonmovant, indulging every reasonable inference,

and resolving any doubts in the nonmovant’s favor.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex.2005). When, as here, the trial court does not

specify the grounds on which the judgment is based,

App. 13

we will affirm the judgment if it is correct on any

legal theory expressly placed at issue and supported

by the evidence. TEX.R. CIV. P. 166a(c) (stating that

issues must be “expressly set out in the motion or in

an answer or any other response”); Dow Chem. Co. uv.

Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam)

(holding that when the grounds for the ruling are not

specified, we affirm “if any of the theories advanced

are meritorious”); Stiles v. Resolution Trust Corp., 867

S.W.2d 24, 26 (Tex.1993) (holding that a summary

judgment cannot be affirmed on grounds not expressly

set out in the motion or response).

IV. ANALYSIS

The Club’s motion for summary judgment was

largely based on the application of (a) preemption

under the Labor-Management Relations Act (“LMRA”),

(b) the exclusive-remedy provision of the Michigan

WDCA, and (c) Michigan’s statute of frauds. For the

sake of clarity, we group the issues presented on

appeal under these headings

A. Labor-Management Relations Act

As its first basis for summary judgment, the Club

asserted that Brocail’s claims were preempted by sec

tion 301 of the LMRA, and thus, Brocail is bound by

A

the requirements of that Act, including requirements

App. 14

to exhaust remedies under the applicable collective

bargaining agreement and to assert claims within six

months. See 29 U.S.C. § 185 (codifying section 301 of

the LMRA). Brocail contends that his claims are not

preempted, and thus, these requirements do not

apply. Preemption under the LMRA is a question of

law, which we review de novo. Meredith v. La. Fed’n

of Teachers, 209 F.3d 398, 404 (5th Cir.2000).

Given the importance of maintaining uniform

federal law, “the Supreme Court has made clear that

§ 301 of the LMRA preempts any state-law claim aris-

ing from a breach of a collective bargaining agree

ment.” Smolarek v. Chrysler Corp., 879 F.2d 1326,

1329 (6th Cir.1989) (en banc). Preemption under sec-

tion 301 also applies to many tort claims ostensibly

asserted under state law. /d. at 1329-30 (citing Adlis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 217, 105 S.Ct.

1904, 85 L.Ed.2d 206 (1985)). To survive preemption

tort claims must be “independent” of the CBA. Lingle

v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-

10, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410 (1989);

Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904,

85 L.Ed.2d 206 (analyzing state-law claim to deter-

mine if it was “independent of any right established

by contract, or, instead, whether evaluation of the

tort claim was] inextricably intertwined with

29 U.S.C. § 1-87. See DelCostello v. Intl. Bhd. of Team

103 S.Ct. 2281, 2293-94, 76 L.Ed.2d

syoing such disputes the same limitations period

onal Labor Relations Act): 29 U.S.C. § 160(b

App. 15

consideration of the terms of the labor contract”);

Mattis v. Massman, 2004 Fed.App. 0003P, 355 F.3d

902, 905 (6th Cir.2004) (same). Thus, the LMRA not

only preempts state-law claims that are based

directly on rights created by a collective bargaining

agreement, but also preempts claims that are “sub-

stantially dependent upon analysis of the terms made

between the parties in a labor contract... .” Stringer

v. Natl Football League, 474 F.Supp.2d 894, 900

(S.D.Ohio 2007) (quoting Allis-Chalmers Corp., 471

U.S. at 220, 105 S.Ct. at 1916). But “neither a tan-

gential relationship to the CBA, nor [a] defendant’s

assertion of the contract as an affirmative defense

[can] turn an otherwise independent claim into a

claim dependent on the labor contract.” DeCoe v. Gen

Motors Corp., 1994 FED App. 0261P, 32 F.3d 212, 216

(6th Cir.1994).

Courts follow a two-step approach to determine

whether a state-law tort claim is sufficiently “inde

pendent” to survive LMRA preemption. First, the

court “must examine whether proof of the state law

claim requires interpretation of collective bargaining

agreement terms.” Second, the court “must ascertain

whether the right claimed by the plaintiff is created

by the collective bargaining agreement or by state

»*

o d at 216: accord, Jones 1 R adway Expr

Ine 9 ;. L1O89 (5th (‘ir 199] beginning preemptLio!

inalysi: examining the element of thre illeged state-law

tort)

App. 16

law.” The claim is preempted unless it is created by

state law and does not require interpretation of the

CBA.” If.a plaintiff can prove all of the elements of

the claim without the need for contract interpre-

tation, then his claim is independent of the labor

. 13 ° : ‘

agreement and is not preempted.” But if resolution of

the state-law claim is “substantially dependent” on an

analysis of the terms of the CBA or “inextricably

intertwined” with it, the claim is preempted by the

LMRA.”

I. Asserted as a Basis for Summary

Judgment

In his first issue, Brocail contends that because

the Club’s motion contains no assertion that any

specific part of the CBA or UPC must be interpreted

to resolve any of Brocail’s claims, the Club did not

expressly move for summary judgment on _ the

grounds that Brocail’s claims are preempted by the

LMRA. Thus, he reasons, summary judgment cannot

be affirmed on this basis. The Club responds that

srocail failed to specially except to the motion and

therefore waived his complaint that the motion

lacked specificity. See McConnell v. Southside Indep

Sch. Dist., 858 S.W.2d 3387, 342 (Tex.1993) (plurality

App. 17

op.) (“An exception is required should a non-movant

wish to complain on appeal that the grounds relied on

by the movant were unclear or ambiguous.”); Franco

v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 784

(Tex.App. — Houston [14th Dist.] 2004, no pet.)

(special exception is required to preserve complaint

that a motion for summary judgment is vague or

lacks specificity). The excepting party also must

obtain a ruling on the special exception to preserve

the issue for appeal. TEX.R.APP. P. 33.1; France, 154

S.W.3d at 784.

Rather than specially excepting to the alleged

omission and thereby giving the Club an opportunity

to amend, Brocail challenged the alleged omission

substantively. In his response, he asserted that the

Club “failled] to identify a stngle provision of the CBA

or UPC that must be interpreted to resolve Brocail’s

tort claims” or “to resolve the factual issues” identi-

fied in the motion for summary judgment. According

to Brocail’s arguments in the trial court, the Club’s

failure to cite a specific provision of the CBA that

requires interpretation demonstrates that no inter-

pretation is necessary to resolve his claims.

These arguments seem to rely on the standard governing

no-evidence summary judgments, rather than traditional sum

mary judgments. See Cuyler v. Minns, 60 S.W.3d 209, 212-13

(Tex.App. — Houston [14th Dist.] 2001, pet. denied) (because mo

vant’s failure to identify challenged elements of claims renders a

no-evidence motion for summary judgment legally insufficient

under Rule 166a(i), the nonmovant is not required to object

App. 18

We agree with the Club. A special exception was

required to preserve Brocail’s argument for appeal.

TEX.R.APP. P. 33.1; Franco, 154 S.W.3d at 784. And

even if Brocail’s argument could be construed as a

special exception to the motion’s lack of specificity,

Brocail identifies no ruling in the record on such an

exception. See TEX.R.APP. P. 33.1(a)(2) (to preserve a

complaint for appellate review, the record must show

that the trial court implicitly or expressly ruled on

the objection, or the complaining party objected to the

trial court’s refusal to rule). We therefore conclude

that Brocail’s appellate argument regarding the

Club’s failure to cite specific provisions of the CBA is

waived, and we overrule Brocail’s first issue.”

2. Need to Interpret Specific Contract

Provisions

Brocail next contends that the resolution of his

tort claims does not require the interpretation of any

specific provision of the CBA, the UPC, or the League

Regulations. Similarly, he argues in his third issue

that these documents did not create or preciude the

duties that are the bases of his tort claims. Both

arguments are only partially correct.

The Club adequately presented the preemption argument

In its summary judgment motion

Interestingly, each party relies for support on statements

by the other’s expert or counsel. Contrary to its arguments on

appeal, the Club’s general counsel previously denied that the

duty to pravide reasonable medical care “is a right that flows

Continued on following page)

App. 19

a. Claims Based on Duty to Pro-

vide Reasonable Medical Care

In support of his argument that his claims arise

under Michigan state law and do not require inter-

pretation of the CBA, Brocail relies on the following

from” the CBA and instead agreed that the Club had a duty

under Michigan’s workers’ compensation statutes to provide

reasonable medical care. Brocail also reversed his litigation

strategy, and the Club relies ir part on a June 8, 2005 report by

Brocail’s expert, Matthew J. Mitten, in which Mitten opines:

Read together, the Collective Bargaining Agreement,

the UPC, and the Regulations estab]ish that a Major

League Baseball club, such as the Detroit Tigers, ef-

fectively has a non-delegable duty to provide reason-

able and appropriate medical care to its players,

including an obligation to provide proper treatment

and rehabilitation for their injuries.

But see Matthew J. Mitten, Jeam Physicians as Co-

Employees: A Prescription that Deprives Professional

Athletes of an Adequate Remedy for Sports Medicine

Malpractice, 50 St. Louis U. L.J. 211, 213 (Fall 2005)

(“Unless statutorily excluded from coverage, a pro-

fessional team’s players are ‘employees’ who are en-

titled to workers’ compensation benefits for injuries

occurring within the scope of their employment.”).

Despite the efforts of both sides to characterize such

statements as relevant evidence, the issue of whether

claims are preempted by the LMRA is a question of

law to be reviewed de novo. Bartholomew v. AGL Res..,

Inc., 361 F.3d 1333, 1337 (11th Cir.2004): Meredith,

209 F.3d at 404; Reece v. Houston Lighting & Power

Co, 79 F.3d 485, 487 (5th Cir.1996); Quesnel uv.

Prudential Ins. Co., 66 F.3d 8. 11 n. 4 (1st Cir.1995)

Thus, our analysis is unaffected by the opinions of

these witnesses

App. 20

provision of Michigan’s Worker’s Disability Compen-

sation Act:

The employer shall furnish, or cause to be

furnished, to an employee who receives a

personal injury arising out of and in the

course of employment, reasonable medical,

surgical, and hospital services and medi-

cines, or other attendance or treatment rec-

ognized by the laws of this state as legal,

when they are needed.

MICH. COMP. LAWS ANN. § 418.315(1). The Club,

however, argues that Brocail’s claims rely on the

Club’s alleged breach of a contractually-implied duty

to provide medical care, and “(wlithout reference to

and reliance on the CBA, the UPC and the Regu-

lations, the Tigers would have no duty or obligation to

918

provide any medical services to Brocail.

We need not look for such an implied duty in

these agreements because the parties are bound by

express state statutes, and the Club could not “opt

out” of Michigan workers’ compensation law. See

MICH. COMP. LAWS ANN. § 418.111 (“Every employer,

In support of this argument, the Club cites Jnternational

Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 862,

107 S.Ct. 2161, 2168, 95 L.Ed.2d 791 (1987) (concluding that it

was necessary to interpret a coilective bargaining agreement to

determine the existence and scope of union’s implied duty to

ensure a safe workplace). In Hechler, however, the plaintiff's

claim expressly was based on alleged breaches of “contracts and

agreements” and not on the breach of a state statute expressly

imposing a duty on the employer

App. 21

public and private, and every employee, unless herein

otherwise specifically provided, shall be subject to the

provisions of this act and shall be bound thereby.”)

(emphasis added). The Club’s position is inconsistent

with the unambiguous language of section 418.315(1),

which requires it to provide reasonable medical care.

Because the determination of the Club’s duty and

alleged breach of duty to provide Brocail with rea-

sonable medical services can be resolved without

reference to the CBA, the UPC, or the Regulations,

these claims are not preempted by the LMRA. See

Lingle, 486 US. at 409-10, 108 S.Ct. at 1883 (“[A]s

long as the state-law claim can be resolved without

interpreting the agreement itself, the claim is ‘inde-

pendent’ of the agreement for § 301 pre-emption

purposes. ). Thus, Brocail’s claims that the Club

breached a duty to provide reasonable medical care

are not preempted by the LMRA. But as discussed

infra, these claims — which include Brocail’s allega-

tions that the Club (i) encouraged or directed Brocail

to seek treatment from unskilled team personne]; (ii)

failed to seek determination of proper treatment from

a skilled physician; (iii) “failed to use reasonable care

with plaintiff’; (iv) failed to use reasonable care to

protect plaintiff’s health; and (v) failed to perform the

appropriate examinations to determine his pre-

participation or qualifying status, identify future risk

of injury, determine his fitness to play baseball, pre-

vent subsequent injury, and assess his rehabilitative

status — are barred by the WDCA.

App. 22

Some of Brocail’s claims, however, are not based

on the duty to provide reasonable medical care. And

as discussed below, we reach a different result

concerning the preemption of claims arising from the

alleged violation of duties found only in the CBA.

b. Claims Based on Express Con-

tractual Duties

Brocail contends that the Club “failed to provide

a proper second opinion before encouraging, endors-

ing or directing Brocail to undergo treatment... .”

But Brocail points to no authority in Michigan law

that required the Club to “provide a proper second

opinion,” nor have we found such a requirement.” To

the contrary, the only basis on which to imply a duty

to provide a second medical opinion is found in the

CBA.

Article XIII, section D of the CBA is entitled “Sec-

ond Medical Opinion” and provides as follows:

Within 20 days following the execution of

this Agreement, the Clubs will provide an

updated, accepted listing of medical spe-

cialists, by specialty and by geographic

regions, to whom Players may upon their

Cf. MICH. COMP. LAWS ANN. § 418.315(1) (“After 10

days from the inception of medical care as provided in this

section, the employee may treat with a physician of his or her

own choice by giving to the employer the name of the physician

and his or her intention to treat with the physician.”)

App. 23

request go for diagnosis and a second medi-

cal evaluation of an employment([-Jrelated

illness or injury being treated by the Club

physician. At least two physicians will be

designated for each specialty in each region.

Further, the Association and the Clubs shall

promptly agree on appropriate procedures by

which this listing of medical specialists will

be updated annually. A Player may seek a

“second evaluation” from a medical specialist

on the accepted listing who is located outside

the geographic region within which the

Player’s Club is located, provided that the

Player is not absent from the Club for an

unreasonable time.

Thus, to determine whether the Club was re-

quired to provide a second opinion and to define the

meaning of a “proper second opinion,” it is necessary

to interpret the CBA. Consequently, this claim is pre-

empted by the LMRA. We therefore overrule Brocail’s

second and third issues as they pertain to any duty of

the Club concerning a “second opinion.”

We reach a similar result regarding Brocail’s

claims arising from his trade to the Houston Astros.

Because the CBA governs assignment of his contract,

Brocail’s claim that the Club fraudulently induced

, ?m to enter a contract with the Astros is preempted.

See Burgos v. Sw. Bell Tel. Co., 20 F.3d 633, 636 (5th

Cir.1994) (“In order to determine whether South-

western Beil acted wrongfully in the way it trans-

ferred [the employee] from one section to another,

required him to take different tests, and ultimately

App. 24

effectuated his termination, an analysis of South-

western Bell’s obligations under the collective bar-

gaining agreement is necessary.”). In particular, it is

necessary to interpret the CBA to determine whether

Brocail’s consent to the assignment was necessary,

and whether reliance on any representation by the

Club concerning assignment of his contract was

reasonable in light of the CBA.” See Feitl v. Los

Angeles Clippers, 48 F.3d 1227, 1995 WL 100596, at

*3 (9th Cir. March 8, 1995) (unpublished mem. op.)

(“Because Feitl knew at the time of the alleged fraud

that any employment he might have with LAC was

governed by a CBA, Feitl must prove that his reliance

was justified in light of the CBA.”) (citing Milne

Employees Ass’n v. Sun Carriers, Inc., 966 F.2d 1401,

1408-09 (9th Cir.1991)). Thus, we overrule Brocail’s

second and third issues as they pertain to his claim of

fraudulent inducement.

B. Michigan Worker’s Disability Compen-

sation Act

Under Michigan law, “[e]very employer, public

and private, and every employee, unless. . . otherwise

specifically provided [in the WDCA], shall be subject

to the provisions of this act and shall be bound

thereby.” MICH. COMP. LAWS ANN. § 418.111. The

The CBA contains provisions addressing circumstances in

which assignment is prohibited or which require the Player’s

consent

App. 25

WDCA applies to all private, non-agricultural em-

ployers who regularly employ three or more em-

ployees at one time, excluding family members

employed as domestic servants. See id. §§ 418.115(a);

418.118(1). In addition, any private employer who

purchases and accepts a valid workers’ compensation

insurance policy, except in the case of domestics and

agricultural employees, assumes “the liability for

compensation and benefits imposed by this act upon

employers.” Jd. § 418.121.

The parties do not dispute that the Club had a

valid worker’s compensation insurance policy in effect

at the time of Brocail’s injury, and that medical

benefits were paid pursuant to that policy. Thus, the

Club is an employer subject to the WDCA. See id.

§§ 418.111, 418.121. In addition, Brocail is an employ-

ee as that term is used in the Act:

(1) As used in this act, “employee” means:

(1) Every person in the service of another,

under any contract of hire, express or im-

plied. .

(n) Every person performing service in the

course of the trade, business, profession, or

occupation of an employer at the time of the

injury, if the person in relation to this service

does not maintain a separate business, does

not hold himself or herself out to and render

App. 26

service to the public, and is not an employer

subject to this act.

Id. § 418.161. The WDCA further provides:

The right to the recovery of benefits as

provided in this act shall be the employee’s

exclusive remedy against the employer for a

personal injury or occupational disease. The

only exception to this exclusive remedy is an

intentional tort. An intentional tort shall

exist only when an employee is injured as a

result of a deliberate act of the employer and

the employer specifically intended an injury.

An employer shall be deemed to have

intended to injure if the employer had actual

knowledge that an injury was certain to

occur and willfully disregarded that knowl-

edge. The issue of whether an act was an

intentional tort shall be a question of law for

the court. This subsection shall not enlarge

or reduce rights under the law.

Id. § 418.131(1). Here, Brocail seeks to recover for a

personal injury sustained in the course and scope of

his employment. Thus, with the exception of inten

tional torts as described above, the WDCA affords his

only remedy.

I. Uncompensated Loss of Earnings

lo avoid the exclusive-remedy provision, Brocail

points out that section 418.360 of the WDCA bars his

receipt of weekly earnings benefits otherwise aval

able under the act

App. 27

(1) Aperson who suffers an injury arising out

of and in the course of employment as a pro-

fessional athlete shall be entitled to weekly

benefits only when the person’s average weekly

wages in all employments at the time of appli-

cation for benefits, and thereafter, as com-

puted in accordance with section 371, are less

than 200% of the state average weekly wage.

(2) This section shall not be construed to pro-

hibit an otherwise eligible person from receiving

» ° ‘ ad 21) « {22 ‘ . (23

benefits under section 315,[°" 319,” or 361.

Section 418.315 provides, inter alia, that

The employer shall furnish, or cause to be furnished,

to an employee who receives a personal injury arising

out of and in the course of employment, reasonable

medical, surgical, and hospital services and medi-

cines, or other attendance or treatment recognized

by the laws of this state as legal, when they are

needed After 10 days from the inception of

medical care as provided in this section, the employee

may treat with a physician of his or her own choice by

giving to the employer the name of the physician and

his or her intention to treat with the physician

Under this section

An employee who has suffered an injury covered by

this act shall be entitled to prompt medical rehabilita

tion services. When as a result of the injury he or she

is unable to pertorm work for which he or she ha

previous training or experience, the employee shall be

entitled to such vocational rehabilitation services, in

cluding retraining and job placement is may be

reasonably nece i to restore him or her to useful

employment

Chi ection ¢

App. 28

Id. § 418.360 (internal footnotes referencing prior

laws omitted). Thus, Brocail reasons, the exclusive-

remedy provision of the WDCA does not apply to his

claim for earnings-related damages. Stated differ-

ently, he argues that section 418.360(1) provides an

exception to the exclusive-remedy provision of section

418.131(1).

In support of this argument, Brocail relies on

Eversman v, Concrete Cutting & Breaking, Inc., in

which the Michigan Supreme Court explained:

The primary purpose of the worker’s com

pensation act is to provide benefits to the

victims of work-related injuries by allocating

the burden of these payments to the em-

ployer, and, therefore, ultimately, to con-

sumers. An employee who suffers an injury

arising out of and in the course of his

employment will be eligible for compensation

regardless of whether the employer was at

fault. In return, the employer is immunized

from tort liability because the worker's com-

pensation act, under [section] 418.131(1)

provides that this compensation is the exclu-

sive remedy for a personal injury, except for

an injury resulting from an intentional tort

163 Mich. 86, 92-93, 614 N.W.2d 862, 864 (2000)

citations omitted). Because an employer is immunized

for tort liability by paying the worker “compensation”

a work-related injury, Brocail contends that the

also be true; thus, he argues, if the

does not receive “compensation” for lost

then the emplover is not immunized from

App. 29

tort lability for those damages. He argues that

“{[cjourts across the country have confirmed that

exclusivel|-|remedy provisions apply only to damages

that are compensable under a worker’s compensation

statute.”

a. Haddad v. Justice

In support of this position, Brocail first relies on

Haddad v. Justice, in which the Michigan Court of

Appeals wrote

Plaintiffs’ complaint contained a claim for

property damage and the wife’s claim for loss

of consortium. As to the wife’s claim for loss

of consortium, it is barred by [section]

418.131.... We find that there is no pro

vision in the Workmen’s Compensation Act

applicable to plaintiffs’ claim for property

damage, and, as to it, accelerated judgment

was improper

64 Mich App 14.77, 235 N.W.2d 159, 160-61 (1975

3ut Haddad does not support Brocail’s argu

ment. For example, the WDCA provides no compensa

tion for loss of consortium; nevertheless, the Haddad

court applied the exclusive-remedy provision to thi

derivative claim

Brocail responas that the loss of consortium

claim if Haddad was not covered because claim

under the WDCA are personal. But this proposition is

not supported by the language of the Act. See MICH

COMP. LAWS ANN. § 418.131(2) (“A

App. 30

section ... , ‘employee’ includes the person injured,

his or her personal representatives, and any other

person to whom a claim accrues by reason of the

injury to, or death of, the employee... .”) (emphasis

added). Thus, the exclusive-remedy provision also

applies to anyone to whom a claim accrues as a result

of the employee's injury or death.

Significantly, the identification of persons to

whom the Act applies is based on the injury, not the

compensation provided. Regarding the _ property-

damage claim in Haddad, section 418.131 provides

that the “right to recovery of benefits as provided in

this act shall be the employee’s exclusive remedy

against the employer for a personal injury or occu-

pational disease.” Id. § 418.131(1) (emphasis added).

Because the plaintiff’s claim for property damage

was not derived from the worker’s claim of personal

injury or disease, it was neither covered nor barred

by the WDCA. But Haddad does not stand for the

proposition that the exclusive-remedy provision is

inapplicable to claims arising from an employee’s in-

jury simply because the Act provides no compensation

for the particular category of damages sought.

b. Sole Exception to the Exclusive-

Remedy Provision

Contrary to Brocail’s arguments, intentional torts

are the “only exception” to the exclusive-remedy

App. 31

rule.“ Under Michigan law, the applicability of the

workers’ compensation act is not determined by

whether the claimant is fully compensated for a par-

ticular category of damages, because “benefits pro-

vided by existing compensation acts are not expected

to be full payment for all losses suffered.”” Instead, it

is “a fundamental tenet of workers’ compensation

statutes that if an injury falls within the coverage of

the compensation law, such compensation shali be the

employee’s only remedy against the employer... .”

Reed v. Yackell, 473 Mich. 520, 530, 703 N.W.2d 1, 6-7

(2005) (emphasis added) (quoting Farrell v. Dearborn

Mfg. Co., 416 Mich. 267, 274-75, 330 N.W.2d 397, 399

(1982)); see also Downie, 122 Mich.App. at 737, 333

N.W.2d at 535 (“When an employee’s injury is within

the scope of the Worker’s Disability Compensation

Act, workers’ compensation benefits are the employee’s

exclusive remedy against the employer.”); McKinley v.

Holiday Inn, 115 Mich.App. 160, 163, 320 N.W.2d

329, 331 (1982) (per curiam) (“If the WDCA covers the

kind of injury suffered, the act{’s] remedy is exclusive

even though under the facts of the particular case no

* MICH. COMP. LAWS ANN. § 418.131; Bell v. Ren-Pharm,

inc., 269 Mich.App. 464, 466, 713 N.W.2d 285, 286 (2006); see

also Downie v. Kent Prods., 122 Mich.App. 722, 738, 333 N.W.2d

528, 536 (1983) (stating that “the exclusive remedy provision of

the act bars any common law tort cause of action by an employee

against his employer”), aff’d in part and rev'd in part, 420 Mich

197, 362 N.W.2d 605 (1984), amended, 421 Mich. 1202, 367

N.W.2d 831 (1985)

Franges v. Gen. Motors Corp., 404 Mich. 590,

N.W.2d 392, 399 (1979)

App. 32

compensation is payable because there has been no

actual loss of earning capacity.”). And although Michi-

gan WDCA benefits do not include weekly wage com-

pensation for a professional athlete with a salary as

large as Brocail’s, wage compensation is not the only

“benefit” provided by the WDCA. Highly compensated

athletes remain eligible for bei.efits such as reasen-

able medical care, medical and vocational rehabilita-

tion, and compensation for scheduled losses. See

MICH. COMP. LAWS ANN. § 418.360(2).

Michigan’s laws of statutory construction also

prevent us from accepting Brocail’s interpretation of

the WDCA. See Echelon Homes, L.L.C. v. Carter Lum-

ber Co., 472 Mich. 192, 196, 694 N.W.2d 544, 547

(2005) (“We begin by examining the plain language of

the statute; where that language is unambiguous, we

presume that the Legislature intended the meaning

clearly expressed — no further judicial construction

is required or permitted, and the statute must be

enforced as written.”) (emphasis added, citations

omitted). As the Haddad court emphasized, “Liberal

construction [of the Act] applies whether the employ-

ee 1s seeking benefits under the act or resisting

application of the exclusive remedy provisions of the

act to his cause of action.” Haddad, 64 Mich.App. at

77, 235 N.W.2d at 160.

Our analysis is unaffected by the cases from

other jurisdictions cited by Brocail. See, e.g., [vey v.

N.C. Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960);

Davts v. Pioneer, Inc., 834 So.2d 739 (Miss.Ct.App.2003):

Superb Carpet Mills, Inc. v. Thomason, 183 Ga.App.

App. 33

554, 359 S.E.2d 370 (1987). The Jvey case concerned

North Carolina statutes and exceptions that apply

only to prisoners. Ivey, 252 N.C. at 619, 114 S.E.2d at

815. The Davis court held that, under Mississippi law,

“where an injury is caused by the willful act of an

employee acting in the course and scope of his

employment and in the furtherance of his employer's

business, the Workmen’s Compensation Act is not the

exclusive remedy available to the injured party... .”

834 So.2d at 741 (emphasis added) (quoting Miller v.

McRae’s, Inc., 444 So.2d 368, 371 (Miss.1984)). The

Michigan WDCA similarly contains an express excep-

tion to the exclusive-remedy provision “when an em-

ployee is injured as a result of a deliberate act of the

employer and the employer specifically intended an

injury.” MICH. COMP. LAWS ANN. § 418.131(1) (em-

phasis added). And as in Haddad, the court in Superb

Carpet Mills held that “\t]he benefits conferred by the

Act relate to damages for personal injury and not

property damage.” Superb Carpet Mills, Inc., 183

Ga.App. at 555, 359 S.E.2d at 371. None of these

cases support Brocail’s argument that professional

athletes who are paid at inast 200% of the state’s

average weekly wage are exempt from the exclusive-

remedy provision of the WDCA.

c. Application to Brocail’s Causes

of Action

Because we must apply the exclusive-remedy pro-

vision of the WDCA in accordance with its unam-

biguous meaning, we overrule Brocail’s fourth issue.

App. 34

We affirm summary judgment as to all causes of

action pleaded by Brocail other than allegations of an

“intentional tort” as defined by section 418.131(1) of

the WDCA. See Eversman, 463 Mich. at 92-93, 614

N.W.2d at 864; Am. Bumper & Mfg. Co. v. Nat'l Union

Fire Ins. Co., 261 Mich.App. 367, 370 n. 3, 683 N.W.2d

161, 162 n. 3 (2004) (noting that any pleaded cause of

action that does not include allegations of intentional

conduct is barred by the exclusive-remedy provision

of the WDCA). Consequently, we held that Brocail’s

negligence claims are barred by the Michigan Work-

ers’ Compensation Disability Act. See Harris v. Vernier,

242 Mich.App. 306, 316, 617 N.W.2d 764, 770 (2000)

(“Michigan has long recognized that actions for in-

juries incurred as a result cf a coemployee’s negli-

gence and arising out of the scope of employment are

barred by the exclusivel[-|Jremedy provision [of the

WDCA|].”); cf Great Am. Ins. Co. v. Queen, 410 Mich.

73, 89, 300 N.W.2d 895, 897 (1980) (“An employee's

common-law right to proceed in tort against persons

other than his employer or co-workers was not altered

by the worker’s compensation act.”) (emphasis

added).

The exclusive-remedy provision also bars those

claims that merely restate Brocail’s negligence and

medical negligence or malpractice claims. See Jones v.

Bouza, 381 Mich. 299, 302, 160 N.W.2d 881, 882

(1968) (en banc) (“If the [medical] malpractice of a

fellow employee, no less than any other negligence of

a fellow employee, gives rise to a compensable injury,

then workmen’s compensation stands as the sole

App. 35

recourse.”). The statute similarly bars his claims

based on actual agency, ostensible agency, or

vicarious liability for the acts of non-employee health

care providers. If the tortfeasor was acting as an

employee over whom the Club exercised control, then

the WDCA bars the claim. See MICH. COMP. LAWS

ANN. § 418.131. If the tortfeasor was an independent

contractor over whom the Club lacked control, then

the Club also is not vicariously liable. See Janice uv.

Hondzinski, 176 Mich.App. 49, 53, 439 N.W.2d 276,

278 (1989). Brocail’s agency and ostensible agency

theories feil for the same reasons. See Decker v. Saini,

No. 88-361.68 NH, 1991 WL 277590, at *2-4

(Mich.Cir.Ct. Sept.17, 1991) (unpublished) (holding

HMO liable for acts of physician because, although

HMO was a health care insurer and not a health care

provider, the patient reasonably believed, based on

the HMO’s representations, that the HMO was the

physician’s agent, and patient looked to the HMO for

treatment and not just for payment).

Under any of these theories, Brocail cannot

prevail on his negligence claims against the Club. See

Bayless v. Philadelphia Nat'l League Club, 472 F.Supp.

625, 630 (D.C.Pa.1979) (holding that professional

baseball player “clearly placed himself within the

ambit of the Workmen’s Compensation Act... in that

he avers 1) the defendant-employer’s assumption of a

duty to provide proper medical care; 2) the failure to

provide that care; and 3) resultant harm.”), aff’d, 615

F.2d 1352 (3d Cir.1980). Thus, we overrule Brocail’s

eighth issue as well as his fourth issue.

App. 36

2. Intentional Torts Exempted from the

WDCA’s Exclusive-Reredy Provision

The determination of whether a plaintiff has

alleged facts constituting a claim for intentional torts

is a question of law for the court, although the ques-

tion of whether the allegations are true is an issue for

the jury. Travis v. Dreis & Krump Mfg. Co., 453 Mich.

149, 154, 551 N.W.2d 132, 135 (1996). Under Michi-

gan law, an intentional tort for WDCA purpvses

occurs only when an employee is injured as a result of

a deliberate act of the employer, and the employer

specificaily intended an injury. Jd. at 169, 551 N.W.2d

at 141. An employer is deemed to have intended to

injure if he had actual knowledge that an injury was

certain to occur and wilfully disregarded that knowl-

edge. Jd. at 171, 551 N.W.2d at 142. Knowledge must

be actual; constructive, implied, or imputed knowl-

edge is not sufficient. Jd. at 173, 551 N.W.2d at 143.

“A plaintiff may establish a corporate employer’s

actual knowledge by showing that a supervisory or

managerial employee had actual knowledge that an

injury would follow from what the employer delib-

erately did or did not do.” Jd. at 173-74, 551 N.W.2d

at 143.

Here, Brocail pleaded that the Club “had actual

knowledge that an injury to Brocail was certain to

occur and willfully disregarded that knowledge.” In

its traditional motion for summary judgment, the

Club asserted that the intentional-tort exception did

not apply because (a) the Club is not a medical

service provider and did not diagnose or operate on

App. 37

Brocail, (b) the C’ab had no intention of trading

Brocail before the surgery, and (c) a member of the

Club’s front office is the son of a member of the

Astros’s front office. None of these grounds defeats or

avoids any of the elements of an “intentional tort” as

defined by the WDCA.

The Club contends that because Brocail did not

attach evidence to his summary judgment response to

controvert the Club’s evidence, “Brocail failed to raise

a genuine issue of material fact regarding his (1)

counter-affirmative defense of ‘intentional torts’ un-

der the Michigan Worker’s Disability Compensation

Act; (2) his fraud claim; and (3) his vicarious liability

and agency claims.” In support of this argument, the

Club relies on cases addressing counter-defenses that

had not been previously asserted by the non-movant.

See, e.g., Ryland Group, Inc. v. Hood, 924 S.W.2d 120,

121 (Tex.1996) (per curiam) (plaintiffs raised affir-

mative counter-defenses in response to defendant’s

motion for summary judgment). Here, however, Brocail

specifically asserted the counter-defenses at issue.

Thus, as the movant, the Club was required to dis-

prove the pleaded counter-defenses in order to estab-

lish its entitlement to judgment as a matter of law.

In sum, the Club failed to conclusively disprove

the factual allegations made in connection with

Brocail’s claims of “intentional torts.” But although

we agree in part with the argument presented in

Appellee’s Brief, at 9

App. 38

Brocail’s sixth issue, his “intentional tort” allegations

nevertheless fail because they are barred by the

Michigan statute of frauds.

C. Michigan Statute of Frauds

In its motion for summary judgment, the Club

also argued that Brocail’s claims were barred by the

Michigan statute of frauds, which provides:

(1) In the following cases an agreement,

contract, or promise is void unless that

agreement, contract, or promise, or a note or

memorandum of the agreement, contract, or

promise is in writing and signed with an

authorized signature by the party to be

charged with the agreement, contract, or

promise:

(g) An agreement, promise, contract, or

warranty of cure relating to medical care or

treatment. This subdivision does not affect

the right to sue for malpractice or negligence

MICH. COMP. LAWS ANN. § 566.132(1)(g).

The statute does not apply solely to a

promise to cure, but applies also to a promise

to provide medical care with due care or in a

non-negligent manner or to any promise

rclating to medical care.’

Smith v. City of Pontiac, 169 Mich.App. 559, 562, 426

N.W.2d 704, 1 (1988) (per cumam). In Smith, the plaintiff

Continued on following page)

App. 39

In his Third Amended Petition, Brocail alleged

that the Club negligently “represented that Brocail

would be as good as new and would pitch again soon

for the team if he underwent the treatment by team

personnel” but nevertheless failed “to use reasonable

care to protect plaintiff’s health. ...” Brocail further

alleged that the Club committed froud and fraudulent

concealment by:

falsely representing that the treatment ren-

dered by team personnel would cure Brocail’s

injury; falsely representing the nature and

outcome of the treatment; falsely repre-

senting that the treatment rendered by team

personnel was proper and necessary;

falsely representing that Brocail would be as

brought a wrongful death action against the defendant arising

out of a decedent's treatment at the defendant’s hospital. Jd. The

plaintiff alleged that the defendant was negligent and breached

an implied contract to provide medical services, including

express and implied warranties to exercise due care in treating

the decedent. Jd. The court held that the plaintiff’s contract

claim was invalid because the plaintiff admitted there was no

written agreement that met the statute of frauds requirement

Id.; see also Powers v. Peoples Cmty. Hosp. Authority, 183

Mich.App. 550, 554, 455 N.W.2d 371, 373 (1990) (stating that

“the statute requires a writing for any agreement, promise or

contract relating to medical care or treatment as well as any

warranty of cure” and affirming dismissal of plaintiff's contract

and promissory estoppel claims) (emphasis added); Virk v. De

troit Receiving Hosp., No. 180621, 1996 WL 33348748, at ]

(Mich.Ct.App. Oct.25, 1996) (per curiam, unpublished) (claimant

cannot recover under an alternate theory of promissory estoppel

if the claim is barred by section 566.132(1\g))

App. 40

good as new and would pitch again soon for

the team if he had the treatment.

Brocail made similar allegations in connection

with his claims of fraudulent inducement, negligent

misrepresentation, gross negligence, breach of con-

tract, and promissory estoppel.

These representations all relate to medical care

and treatment; thus, the representations are unen-

forceable in the absence of a writing. See Powers, 183

Mich.App. at 554, 455 N.W.2d at 373 (rejecting “plain

tiff’s promissory estoppel claim as the alleged prom

ise made by defendant hospital’s nursing staff related

to medical care or treatment and such promises must

be in writing”); see also Malik v. William Beaumont

Hosp., 168 Mich.App. 159, 171-72, 423 N.W.2d 920,

925 (1988) (per curiam) (applying statute of frauds to

claim that hospital falsely represented that kidney

transplant would improve quality of life). Conse

quently, the statute of frauds bars claims that Brocail

reasonably relied on the Club’s “promise” that he

would be cured or would pitch again soon if he

submitted to a particular course of medical treat

ment.”

Brocail argues that his claims fall within an exception

‘tated in the last sentence of section 566.132( wr): “Thi ubdi

vision does not affect the right to sue for malpractice or negli

gence.” But regardless of whether section 566.132(1)(¢) affect

the mght to sue for malpractice or negligence, the WDCA do

affect that ability, as discussed supra Because the WDCA bar

h suits if brought by an employee against his employer for

Continued on follow ne pa ré

App. 41

The same reasoning applies to Brocail’s claims of

fraudulent concealment. Fraudulent concealment, also

known as fraud by nondisclosure or “silent fraud,”

cannot occur in the absence of a legal duty of dis

closure. M & D, Inc. v. W.B. McConkey, 231 Mich.App

22, 29, 585 N.W.2d 33, 37 (1998). But in order to

prove a claim of silent fraud, a plaintiff must show

that some type of representation that was false or

misleading was made and that there was a legal or

equitable duty of disclosure. /d. at 32, 585 N.W.2d at

39. “(T]he touchstone of liability for misdirection or

‘silent fraud’ is that some form of representation has

been made and that it was or proved to be false.” /d

at 30, 585 N.W.2d at 38. Although the misrepresenta

tion may be made through words or conduct,” the

plaintiff’s reliance must have been reasonable. But

under Michigan law, such reliance on an unwritten

representation could not be considered reasonable

in light of the statute of frauds. See Malik 168

Mich.App. at 172-73, 423 N.W.2d at 926 (denying

claim for promissory e toppel because “it 1s common

injuries received in the cour um

need not consider whether the » | frauds act " in

additiona! bar to those clain ' need consider the

Michigan tatute of fraud only im co ection with any

Brocail’s surviving claims for intent , ind the languages

on which bBrocall ive ontain oO 7 ntentiona

tort

App. 42

knowledge that the results of medical treatment can-

”

not be guaranteed

Finally, Brocail argues that this statute applies

only to causes of action styled as claims for breach

of contract. This argument elevates form over sub

stance: his claim that the Club fraudulently induced

him to undergo treatment by misrepresenting that he

would be cured is based on a promise of cure, and is

therefore barred by the statute of frauds

We conclude that Michigan’s statute of frauds

bars Brocail’s claims based on representations re

lating to medical care and treatment. We therefore

overrule Brocail’s fifth. seventh. and ninth issue

IV. CONCLUSION

In summary, we overrule Brocail’s first issue

challenging the specificity of the Club’s assertion of

the Labor-Management Relations Act as a basis for

ummary judgment. We further hold that the duty to

provide reasonable medical care arises independently

from the collective-bargaining agreement s,ecause

that obligation LS imposed by the Michigan Workers

Compensation Disability Act, Brocail’s claims arising

from an alleged breach of the duty to provide reason

able medical care are not preempted by the LMRA

On the other hand, Brocail’s claims of fraudulent

nducement and failure to provide a proper second

pinion are preempted by the LMRA; thus, we over

ull econd and third issues concerning such

App. 43

srocail pleaded that those who performed the

medical services at issue were “team personnel,” Club

trainers, agents, or independent contractors under

the Club’s control. In effect, he complains that his

injuries are attributable to a co-employee. Thus, the

WDCA is Brocail’s exclusive remedy for any injury

not caused by an “intentional tort” as that phrase is

defined under the Michigan WDCA. Accordingly, we

overrule Brocail’s fourth and eighth issues. And be-

cause claims arising from representations concerning

Brocail’s medical care and treatment are barred by

Michigan’s statute of frauds, we overrule his fifth,

seventh. and ninth issues

Finally, although the Club failed to conclusively,

disprove the factual allegations made in connection

with Brocail’s “intentional tort” claims, the claims to

which Brocail attempted to apply this exception are

barred by the LMRA or the Michi

frauds. Thus, we overrule his sixth tssue. There being

ran statute ofl

s

no remaining claims, we atfirm the judgment of the

tral court

App. 44

April 3, 2008

[SEAL]

JUDGMENT

The Fourteenth Court of Appeals

DOUGLAS K. BROCAIL,

Appellant

No. 14-06-00557-CV V.

DETROIT TIGERS, INC.,

Appellee

This cause, an appeal from the judgment in favor

for appellee, Detroit Tigers, Inc., signed May 18,

2006, was heard on the transcript of the record. We

have inspected the record and find no error in the

judgment. We order the judgment of the court below

AFFIRMED.

We order appellant, Douglas K. Brocail, to pay all

costs incurred in this appeal. We further order this

}

decision certified below for observance.

App. 45

NO. 2002-48741

DOUGLAS K. BROCAIL IN THE DISTRICT

aioe COURT OF

DETROIT TIGERS, INC, ageee YOUNES,

ET AL TEXAS

125th JUDICIAL

District Courts

ORDER ON DEFENDANT'S MOTION

FOR FINAL SUMMARY JUDGMENT

(Filed May 18, 2006)

The Court, having heard and considered the motion

for summary judgment filed by defendant Detroit

Tigers, Inc. together with the responses, replies, and

arguments of counsel, grants the motion.

It is Ordered that defendant’s motion for final sum-

mary judgment motion is granted.

Signed: May 18, 2006

's/ John Coselli

Judge John Coselli

App. 46

[SEAL]

Fourteenth Court of Appeals

1307 San Jacinto, 11th Floor

Houston, Texas 77002

[Names & Phone Numbers Omitted In Printing]

Thursday, May 08, 2008

Bruce FE. Ramage Dale Jefferson

Martin, Disiere, Jefferson Martin, Disiere, Jefferson

& Wisdom, L.L.P. Neils Esperson Bldg

808 Travis, Suite 1800 & Wisdom, L.L.P.

Houston, TX 77002 808 Travis, St 1800

Houston, TX 77002

Levon G. Hovnatanian Michael Jude Lowenberg

Martin, Disiere, Jefferson The O’Quinn Law Firm

& Wisdom, L.L.P. 2300 Lyric Centre Building

808 Travis, Ste 1800 4400 Louisiana Street

Houston, TX 77002 Houston, TX 77002

Thomas W. Pirtle Jeffrey Stewart Davis

Laminack, Pirtle & Gardere Wynne Sewell LLP

Martines 1000 Louisiana, Suite 3400

440 Louisiana, Suite 1250 Houston, TX 77002-5007

Houston, TX 77002

Peter Scaff

Gardere Wynne Sewell LLP

1000 Louisiana, Suite 3400

Houston, TX 77002-5007

RE: Court of Appeals Number: 14-06-00557-CV

Trial Court Case Number: 2002-48741

Dougias K. Brocail

Ww

Detroit Tigers, Inc.

App. 47

Please be advised that on this date the Court

GRANTED appellant’s(s’) motion to extend time to

file motion for rehearing in the above cause; time

extended to and including Tuesday, May 19, 2009.

CHRISTOPHER A. PRINE, CLERK

By

Deputy

App. 48

FOURTEENTH COURT OF APPEALS

[SEAL] 1307 San Jacinto, 11th Floor

Houston, Texas 77002

[POSTMARK Sep. 25, 2008]

RE: Case No. 14-06-00557-CV

Style: Douglas K. Brocail

v. Detroit Tigers, Inc.

Please be advised that, on this date, the Court

OVERRULED appellant’s motion for rehearing in the

above cause.

T. C. Case # 2002-48741 | Christopher A. Prine, Clerk

LEVON G. HOVNATANIAN

MARTIN DISIERE JEFFERSON

& WISDOM LLP

808 TRAVIS STE 1800

HOUSTON TX 77002

App. 49

OFFICIAL NOTICE FROM

SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711-2248

[POSTMARK Jan. 30, 2009]

RE: Case No. 08-0926

COA #: 14-06-00557-CV

Style: DOUGLAS K. BROCAIL

Vv. DETROIT TIGERS, INC.

Today the Supreme Court of Texas denied the

petition for review in the above-referenced case.

MAIL TO:

MR. BRUCE E. RAMAGE

MARTIN DISIERE JEFFERSON

& WISDOM LLP

808 TRAVIS SUITE 1800

HOUSTON TX 77002

App. 50

OFFICIAL NOTICE FROM

SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711-2248

[POSTMARK Mar. 3, 2009]

RE: Case No. 08-0926

COA #: 14-06-00557-CV

STYLE: DOUGLAS K. BROCAIL

Vv. DETROIT TIGERS, INC.

Today the Supreme Court of Texas granted the

motion for extension of time to file motion for rehear-

ing in the above-referenced case. The motion for

rehearing was filed in this office on February 27,

2009.

MAIL TO:

MR. BRUCE E. RAMAGE

MARTIN DISIERE JEFFERSON

& WISDOM LL P

808 TRAVIS SUITE 1800

HOUSTON TX 77002

App. 51

OFFICIAL NOTICE FROM

SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711-2248

[POSTMARK Apr. 17, 2009]

RE: Case No. 08-0926

COA #: 14-06-00557-CV

STYLE: DOUGLAS K. BROCAIL

Vv. DETROIT TIGERS, INC.

Today the Supreme Court of Texas denied the

[SEAL]

motion for rehearing of the above-referenced petition

for review.

MAIL ‘vO:

MR. BRUCE E. RAMAGE

MARTIN DISIERE JEFFERSON

& WISDOMLLP

808 TRAVIS SUITE 1800

HOUSTON TX 77002

App. 52

29 U.S.C.A. § 185. Suits by and against labor

organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer

and a labor organization representing employees in

an industry affecting commerce as defined 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 re-

spect to the amount in controversy or without regard

to the citizenship of the parties.

(b) Responsibility for acts of agent; entity for pur-

poses of suit; enforcement of money judgments

Any labor organization which represents employees

in an industry affecting commerce as defined in this

chapter and any employer whose activities affect com-

merce as defined in this chapter shall be bound by the

acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the em-

ployees whom it represents in the courts of the

United States. Any money judgment against a labor

organization in a district court of the United States

shall be enforceable only against the organization as

an entity and against its assets, and shall not be en-

forceable against any individual member or his

assets.

(c Jurisdiction

For the purposes of actions and proceedings by or

against labor organizations in the district courts of

App. 53

the United States, district courts shall be deemed to

have jurisdiction of a labor organization (1) in the

district in which such organization maintains its

principal office, or (2) in any district in which its duly

authorized officers or agents are engaged in repre-

senting or acting for employee members.

(d) Service of process

The service of summons, subpena, or other legal proc-

ess of any court of the United States upon an officer

or agent of a labor organization, in his capacity as

such, shall constitute service upon the labor organi-

zation.

(e) Determination of question of agency

For the purposes of this section, in determining

‘4

whether any person is acting as an “agent” of another

person so as to make such other person responsible

for his acts, the question of whether the specific acts

performed were actually authorized or subsequently

ratified shall not be controlling.

App. 54

M.C.L.A. 418.315. Medical care; fees; advisory

committee; investigations; utilization review

Sec. 315.(1) The employer shall furnish, or cause to

be furnished, to an employee who receives a personal

injury arising out of and in the course of employment,

reasonable medical, surgical, and hospital services

and medicines, or other attendance or treatment rec

ognized by the laws of this state as legal, when they

are needed. However, an employer is not required to

reimburse or cause to be reimbursed charges for an

optometric service unless that service was included in

the definition of practice of optometry under section

17401 of the public health code, 1978 PA 368, MCL

333.17401, as of May 20, 1992. An employer is not

required to reimburse or cause to be reimbursed

charges for services performed by a profession that

was not licensed or registered by the laws of this

state on or before January 1, 1998, but that becomes

licensed, registered, or otherwise recognized by the

laws of this state after January 1, 1998. Attendant or

nursing care shall not be ordered in excess of 56

hours per week if the care is to be provided by the

employee’s spouse, brother, sister, child, parent, or

any combination of these persons. After 10 days from

the inception of medical care as provided in this sec

tion, the employee may treat with a physician of his

or her own choice by giving to the employer the name

of the physician and his or her intention to treat with

the physician. The employer or the employer’s carrier

may file a petition objecting to the named physician

selected by the employee and setting forth reasons for

App. 55

the objection. If the employer or carrier can show

cause why the employee should not continue treat-

ment with the named physician of the employee's

choice, after notice to all parties and a prompt

hearing by a worker’s compensation magistrate, the

worker’s compensation magistrate may order that the

employee discontinue treatment with the named phy

sician or pay for the treatment received from the

physician from the date the order is mailed. The

employer shall also supply to the injured employee

dental service, crutches, artificial limbs, eves, teeth,

eyeglasses, hearing apparatus, and other appliances

necessary to cure, so far as reasonably possible, and

relieve from the effects of the injury. If the employer

fails, neglects, or refuses so to do, the employee shall

be reimbursed for the reasonable expense paid by the

employee, or payment may be made in behalf of the

employee to persons to whom the unpaid expenses

may be owing, by order of the worker's compensation

magistrate. The worker’s compensation magistrate

may prorate attorney fees at the contingent fee rate

paid by the employee

(2) Kixcept as otherwise provided in subsection (1)

all fees and other charges for any treatment or atten

dance, service, devices, apparatus, or medicine under

subsection (1), are subject to rules promulgated by

the bureau of worker's compensation pursuant to the

administrative procedures act of 1969, 1969 PA 306

MCL 24.201 to 24.328. The rules promulgated shal!

establish schedules | maximum charges for the

treatment or attendance, service, devices, apparat

App. 56

or medicine, which schedule shall be annually re

vised. A health facility or health care provider shall

be paid either its usual and customary charge for the

treatment or attendance, service, devices, apparatus,

or medicine, or the maximum charge established

under the rules. whichever is less

(3) The director of the bureau shall provide for an

advisory committee to aid and assist in establishing

the schedules of maximum charges under subsection

(2) for charges or fees that are payable under this

section. The advisory committee shall be appointed by

and serve at the pleasure of the director

1) If a carrier determines that a health facility o1

health care provider has made any excessive charges

or required unjustified treatment, hospitalization, or

visits, the health facility or health care provider shal!

not receive payment under this chapter from the

carrier for the excessive fees or unjustified treatment,

hospitalization, or visits, and ts liable to return to the

carrier the fees or charges already collected. ‘he

bureau may review the records and medical bills of a

health facility or health care provider determined by

a carrier to not be in compliance with the schedule of

‘harges or to be requiring unjustified treatment, ho

pitalization, or office Visit

») AS used in this section ‘utilization review

means the initial evaluation by a carrier of the appro

priateness in terms of both the level and the quality

of health care and health services provided an injured

‘mployee, based on medically accepted

App. 57

utilization review shall be accomplished by a carrier

pursuant to a system established by the bureau that

identifies the utilization of health care and health

services above the usual range of utilization for the

health care and health services based on medically

accepted standards and provides for acquiring neces

sary records, medical bills, and other information

concerning the health care or health services

(6) By accepting payment under this chapter,

health facility or health care provider shall be con

sidered to have consented to submitting necessary

records and other information concerning health care

or health services provided for utilization review pur

suant to this section. The health facilities and health

care providers shall be considered to have agreed to

comply with any decision of the bureau pursuant t

subsection (7). A health facility or + care pro

vider that ubmiut false or usleading record

other information to a carrier or the bureau

of a misdemeanor, punishable

nS) O00 00. or by

App. 58

(8) The criteria or standards established for the util-

ization review shall be established by rules prom-

ulgated by the bureau. A carrier that complies with

the criteria or standards as determined by the bureau

shall be certified by the department.

(9) If a health facility or health care provider

provides health care or a health service that is not

usually associated with, is longer in duration in time

than, is more frequent than, or extends over a greater

number of days than that health care or service

usually does with the diagnosis or condition for which

the patient is being treated, the health facility or

health care provider may be required by the carrier to

explain the necessity or indication for the reasons

why in writing.

i ee ee a Vays ee

App. 59

CAUSE NO. 2002-48741

DOUGLAS K. BROCAIL § IN THE DISTRICT COURT

§ OF

® HARRIS COUNTY, TEXAS

DETROIT TIGERS, INC. § 125TH JUDICIAL DISTRICT

VS

DETROIT TIGERS, INC.’S MOTION

FOR FINAL SUMMARY JUDGMENT

(Filed Jun. 29,-2005)

Respectfully submitted,

GARDERE WYNNE SEWELL LLP

By: /s/ Peter Scaff

Jeffrey S. Davis

State Bar No. 00783936

Peter Scaff

State Bar No. 24027837

1000 Louisiana, Suite 3400

Houston, Texas 77002-5007

(713) 276-5500

(713) 276-5555 (Fax)

ATTORNEYS FOR

DEFENDANT, DETROIT

TIGERS, INC.

App. 60

[16] V. Argument & Authorities

A. Brocail’s Claims are Preempted and Barred

by Federal Labor Law.

1. Brocail’s Claims are Preempted by Sec-

tion 301.

35. Although Brocail pleads his claims as state

law claims, these allegations must be treated as fed-

eral labor law claims under Section 301 of the Labor

Management Relations Act [17] (the “LMRA”), cod-

ified at 29 U.S.C. §§141-87. Section 307” provides the

exclusive remedy for individual employees asserting

claims against an employer that implicate a collective

bargaining agreement. Thomas v. LTV Corp., 39 F.3d

611, 616 (5th Cir. 1994); Landry v. Cooper/T’ Smith

Stevedoring Co., Inc., 880 F.2d 846, 850 (5th Cir.

1989). If applicable, Section 301 “preempts” state law

claims in that “only the federal law fashioned by the

courts under section 301 governs the interpretation

and application of collective bargaining agreements.”

Sherwin v. Indianapolis Colts, Inc., 752 F.Supp. 1172,

1176-77 (N.D. New York 1990). The preemptive

’ Section 301 of the LMRA provides, in part

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chap-

ter, may be brought in any district court of the

United States having jurisdiction of the parties, with-

out respect to the amount in controversy or without

regard to the citizenship of the parties. 29 U.S.C.

S 185(a).

App. 61

effect of section 301 applies to causes of action

arising in both contract and tort. /d. at 1177

(citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

210-11 (1985)).

36. “{W]hen resolution of 1 state-law claim is

substantially dependent upon analysis of the terms of

an agreement made between the parties in a labor

contract, that claim must be either treated as a

§ 301(a) claim or dismissed as pre-empted by federal

labor-contract law,” Sherwin, 752 F.Supp. at 1177

(citing Allis-Chalmers, 471 U.S. at 213). “The test to

be used in applying [whether a case is a section 301

claim] is to determine if “the duty to the employee of

which the tort is a violation is created by a collective-

bargaining agreement and without existence inde-

pendent of the agreement.” Sherwin, 752 F.Supp. at

1177 (emphases in original) (citations omitted). “In

order to be independent of the collective bargaining

agreement, ... a tort claim must allege a violation

owed to every person in society, as opposed to a duty

owed only to employees covered by the collective

bargaining agreement.” /d. (internal quotations and

citations omitted). When the duty the plaintiff claims

the employer violated arises out of the CBA, the claim

is preempted. Id.; see also, e.g., LTV Corp., 39 F.3d at

619 (tort claims [18] preempted because “[t]o deter-

mine whether LTV’s conduct was wrongful under the

circumstances, an anaiysis of the collective-bargaining

agreement is necessary”); Burgos v. Southwestern

Bell, 20 F.3d 633 (Sth Cir. 1994) (intentional infliction

of emotional distress claim based on harsh treatment

App. 62

of employee notwithstanding knowledge of medical

condition preempted because an analysis of the CBA

was necessary to determine the employer’s obliga-

tions under the CBA to determine if it acted wrong-

fully); Barrow v. New Orleans Steamship Ass’n, 932

F.2d 473, 480 (5th Cir. 1991) (employee claimed new

seniority system was discriminatory because it was

inconsistent with the employer’s obligations under

the CBA).

37. Unquestionably, the allegations contained

Brocail’s recently-filed live pleading implicate the

CBA, as shown by the following examples:

1. The Tigers monitored Brocail’s health,

physical condition, conditioning and well

being, the need for medical care and

treatment, and the propriety of diag-

noses rendered and treatments recom-

mended by the team personnel and their

aifects on Brocail’s health and perfor-

mance.

i)

The Tigers required Brocail to adhere to

training rules and regimens that directly

affected his health, physical condition,

and well being.

3. The Tigers required Brocail to seek treat-

ment from team personnel it designated

at the Detroit Tigers’ offices.

4. The Tigers encouraged or directed Brocail

to undergo the treatment from team per-

sonnel, and that he underwent the treat-

ment and rehabilitation and completed

8.

SB

App. 63

all parts of such at the direction of team

personnel.

The Tigers have a duty of reasonable

disclosure of the available choices with

respect to the proposed therapy and of

the dangers that are inherently and po-

tentially involved in each procedure to

Plaintiff.

The Tigers must disclose all information

that is necessary to make a knowl-

edgeable decision about any proposed

treatment, a duty which is imposed so

that the plaintiff can meaningfully exer-

cise his right to make decisions that

affect him.

The Tigers failed to act with the skill

and knowledge that would be utilized by

other members of the profession acting

in similar circumstances.

The Tigers did not provide a proper sec-

ond medical opinion before encouraging,

endorsing and/or directing that Brocail

undergo treatment

The Tigers did not seek a determination

of the proper and effective treatment

from a physician that possessed the nec-

essary expertise, skill, training, experi-

ence, ability, competence, and/or knowledge.

[19] 10. The Tigers did not designate team

personnel that could properly diagnose

and treat the injury.

App. 64

The Tigers encouraged and/or directed

Brocail to undergo improper treatment

and/or failed to establish policies and

procedures for the treatment of its

players.

The Tigers failed to follow team physi-

cian’s orders.

The Tigers failed to use reasonable care

with plaintiff; failed to use reasonable

care to protect plaintiff’s health and in-

vestment; failed to fully advise of the

adverse effects of continued medical and

rehab treatment and the continuation in

playing baseball under the then present

condition of plaintiff; failed to advise

plaintiff of all options concerning his

condition, and associated treatments, if

any, to continue playing baseball; failed

to perform the appropriate examina-

tions, including pre-participation or qual-

ifying status to identify future risk of

injury, to determine plaintiff’s fitness to

participate and/or continue to partici-

pate in baseball, to prevent subsequent

injury, and to assess his rehabilitative

status; failed to advise the Houston

Astros of the true extent of Plaintiff’s

condition to play baseball and/or failed

to advise the team physicians of Brocail’s

medical condition.

The Tigers negligently hired team per-

sonnel.

App. 65

15. The Tigers have a nondelegable duty to

provide appropriate team personnel to

Plaintiff, perform its contracts with care,

skill, reasonable expedience and faithful-

ness with regard to Plaintiff, avoid harm

by the negligence of an independent con-

tractor.

16. The Tigers breached a contractual duty

to ensure that the team personnel it

required Brocail to seek treatment from

possessed the necessary expertise, skill,

training, experience, ability, competence

and/or knowledge to property diagnose

and treat the particular injury that

Brocail sustained.

17. The Tigers breached a _ non-delegable

duty to perform its contracts with care,

skill, reasonable expedience and faithful-

ness with regard to Plaintiff.

18. The Tigers are vicariously liable because

it breached a non-delegable duty to pro-

vide appropriate team personnel to

plaintiff.

38. No serious argument can be made that

these duties are ones that the Tigers would owe to

“every person in society.” Assuming (for summary

judgment purposes only) that these various permuta-

tions of tort and contract duty existed from the Tigers

to Brocail, the only conceivable basis for determining

such, and for determining the scope thereof, is the

App. 66

a F ° !

CBA, the UPC and the Regulations. Lest there be

any doubt, Brocail’s own expert’s report confirms the

source of the alleged duties:

[20] Read together, the Collective Bargaining

Agreement, the UPC, and the Regulations

establish that a Major League club, such as

the Detroit Tigers, effectively has a non-

delegable duty to provide reasonable and

appropriate medical care to its players,

including an obligation to provide proper

treatment and rehabilitation for their in-

juries.”

Without reference to and reliance on the CBA, the

UPC and the Regulations, the Tigers would have no

The UPC is derived from the CBA and references the

CBA on fifteen occasions. Exhibit A, AA. To the extent Brocail

relies upon the UPC as the source of any duties, the UPC con-

fers and has the same preemptive effect as the CBA. LTV Corp.,

39 F.3d at 617-18; see also Eitmann v. New Orleans Public Serv.,

Inc., 730 F.2d 359, 362, 364 (5th Cir. 1984) (union employee's

claim for breach of a separate individual employment contract

analyzed for LMRA preemption purposes just as a CBA because

the two agreements could not be construed independently of

each other as the CBA controls where inconsistencies exist)

(citing J.J. Case v. NLRB, 321 U.S. 332 (1944)); Stallcop :

Kaiser Foundation Hosp., 820 F.2d 1044, 1048 (9th Cir. 1987) (a

separate agreement of employment is treated as a CBA for

preemption purposes because the independent agreement can

only be effective as part of the larger CBA).

Exhibit BB. The Tigers offer Mitten’s expert report in this

summary judgment proceeding for the limited purpose of

showing the nature of Brocail’s allegations. The Tigers reserve

the right to object to his opinion and testimony in a subsequent

hearing and/or trial

App. 67

duty or obligation to provide any medical services to

Brocail. Because Brocail’s claims implicate the CBA,

the UPC and the Regulations, they are preempted

and thus governed by Section 301 of the LMRA.

App. 68

NO. 2002-48741

DOUGLAS K. BROCAIL IN THE DISTRICT

V COURT OF

<email HARRIS COUNTY

YETROIT TIGERS, INC. )

DETROIT TIGERS, INC aie a

125th JUDICIAL

DISTRICT

Sh? SR? SH SLM SH GH SH

PLAINTIFF DOUGLAS K. BROCAIL’S

RESPONSE TO DEFENDANT’S MOTION

FOR FINAL SUMMARY JUDGMENT

(Filed Aug. 12, 2005)

* =

(7) 11. BROCAIV’S CLAIMS ARE NOT PRE-

EMPTED BY THE LABOR MANAGEMENT

RELATIONS ACT

Contrary to the Tigers’ assertion, the Federal

Labor Management Relations Act does not preempt

every state-law claim that arises from employment

that is governed by a CBA. Instead, only claims that

require the interpretation of a CBA’s provisions are

preempted. The Tigers’ motion should be denied

because the source of the requirement that the Tigers

provide reasonable medical services to Brocail was

not the CBA or UPA, the resolution of Brocail’s

common-law tort claims do not require the inter

pretation of the CBA or the UPA, and Brocail’s

allegations present only factual questions about the

Tigers’ conduct and motives

App. 69

A. Preemption under the LMRA applies

only to claims whose _ resolution

depends on the interpretation of the

CBA.

The United States Supreme Court has repeatedly

held that “not every dispute ... tangentially in-

volving 2 provision of a collective-bargaining agree-

ment is preempted by § 301 [of the Labor Manage-

ment Relations Act]....” Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 413 n.12 (1994)

(quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

211 (1985)). Instead, preemption is limited only to

claims that “depend[] upon the .meaning of a

collective-bargaining agreement... .” /d. at 405-06. In

other words, preemption does not apply if the

“resolution of the state-law claim does not require

construing the _ collective-bargaining agreement.”

Lingle, 486 U.S. at 407

[8] “{Plurely factuai questions’ about an

employee’s conduct or an employer’s conduct and

motives do not ‘requir|e| a court to interpret any term

of a_collective-bargaining agreement.” Hawaiian

Airlines, Inc. v. Finazzo, 512 U.S. 246, 261 (1994)

(quoting Lingle, 486 U.S. at 407). “|[E|ven if dispute

resolution pursuant to a collective-bargaining agree

ment, on the one hand, and state law, on the other,

would require addressing precisely the same set of

facts, as Jong as the state-law claim can be resolved

without interpreting the agreement itself the claim is

‘independent’ of the agreement for § 301 preemption

purposes.” Finazzo, 512 U.S. at 262 (quoting Lingle,

App. 70

486 U.S. at 409-410). As shown below, the resolution

of Brocail’s tort claims does not even tangentially

involve a provision of the CBA and UPA.

B. The Source of The Requirement That

the Tigers Provide Reasonable Medical

Services was the MWDCA, not the CBA

and UPA.

The Tigers conveniently ignore that the require-

ment to provide Brocail with reasonable medical

services was imposed by statute, not the CBA or UPA.

The MWDCA provides

The employer shall furnish, or cause to be

furnished, to an employee who receives a

personal injury arising out of and in the

course of employment, reasonable medical,

surgical, and hospital services and medi-

cines, or other attendance or treatment

recognized by the laws of this state as legal,

when they are needed

MicH. Comp. LAws ANN. § 315(1). No similar provision

is found in the CBA or UPA. Even if the Tigers had

employed Brocail without the CBA or UPA, they

would have been obligated to provide him with

reasonable medical services for injuries he sustained

within the course and scope of his employment.

The term “reasonable medical, surgical, and

hospital services” is found nowhere in the CBA or

UPA. Moreover, the source of the duties for Brocail’s

tort claims is state |9] law, not the CBA or UPA. Thus,

App 7 |

the requirement that the Tigers provide reasonable

medical services is wholly independent of the CBA or

UPA

C. The Resolution of Brocail’s Claims

Does Not Require The Interpretation

Of The CBA or UPA.

While the Tigers pay lip service to the LMRA’s

preemption standard, they fail to identify a single

provision of the CBA or UPA that must be interpreted

to resolve Brocail’s tort claims. For example, there is

no provision in the CBA or UPA that resolves the

claims based on the Tigers’ false representations that

Brocail would be pitching for the team soon and

Brocail’s detrimental reliance on them. Similarly,

neither the CBA nor UPA need to be interpreted to

resolve Brocail’s allegations that the Tigers’ made

false representations that Brocail would be as good as

new after the treatment, that Brocail detrimentally

relied on them, and was injured. The same is true for

Brocail’s other allegations and claims. Sprewell

Golden State Warriors, 266 F.3d 979, 992 (9th Cir

2001) (holding that the player’s interference with

contract and business relations claim was _ not

preempted to the extent it was based on the violation

of state law and was preempted to the extent it was

based on violations of the CBA)

Significantly, the primary authority relied upon

by the Tigers, Sherwin 1 Indianapolis Colts, 752

F.Supp. 1172, 1176-77 (N.D. New York 1990),

—

App. 72

confirms that the resolution of Brocail’s claims do not

require any interpretation of the CBA or UPA. There,

the CBA gave the team physician the discretion to

determine what medical care was necessary. It placed

the medical care that the player was entitled to

receive entirely within the discretion of the team’s

physician: “‘{iJf Player is injured in the performance

of his services under this contract and promptly

reports such injury to the Club physician or trainer,

then Player will receive such medical and hospital

care during the term of this [10] contract as the Club

physician may deem necessary....” Id. at 1174

(emphasis added). The CBA also addressed the

player’s right to receive information from the team

regarding his medical condition: “‘{ilf a Chub

physician advises a coach or other Club representa-

tive of a player’s physical condition which could

adversely affect the player’s performance or health,

the physician will also advise the player... .’” Id. The

player asserted that the team and its physicians did

not provide adequate medical care and withheld

information regarding the true nature of his injury.

Id. at 1173

The team contended that their duty to provide

medical care and information to the player arose

exclusively from the CBA and that the resolution of

the player’s claims was substantially dependent on

the CBA’s interpretation. Jd. at 1175. Because

interpreting the CBA was necessary, it argued, the

7 be ]

plaintiff's claims were subject to the mandatory

App. 73

grievance and arbitration procedure contained in the

CBA, which the player had not followed. Jd.

The District Court agreed. It first noted that the

team had no duty to provide medical care outside the

CBA and UPA: “The Colts did not owe a duty to

provide medical care to the plaintiff independent of

the relationship established in the agreements.” Jd.

at 1178. It concluded that whether the team had

provided adequate medical care and fulfilled its duty

to disclose information could not be resolved without

interpreting the CBA and UPA:

The court cannot resolve plaintiff’s claims

based on inadequate medical care without

interpreting the clauses establishing those

duties in the agreements. In addition, the

court cannot resolve plaintiff’s fraud and

negligent misrepresentation claims without

reference to Article XXXI, section 1 of the

CBA, which establishes the duty of a club

physician, and arguably the club, to inform a

player of physical conditions “which could

adversely affect the player’s performance or

health.”

[11] dd. at 1178.

Here, the requirement that the Tigers provide

reasonable medical services to Brocail existed

independent of the CBA and UPA under the MWDCA.

Neither the CBA or UPA provide the Tigers, their

physicians, or employees with the discretion to

determine what medical care was “necessary” for the

treatment of Brocail’s injury. /d. at 1174. Additionally,

App. 74

neither the CBA nor UPA addresses the disclosure of

medical information by its team physicians or

employees to Brocail. Nor does it address any

obligation by Tiger employees, such as team trainers,

to provide medical services or information to players.

Instead, the CBA and UPA only mention the

reimbursement of “medical and hospital expenses

incurred.” Specifically, the regulations attached to the

UPA provide that the player’s disability is not a bar to

the reimbursement of medical expenses: “[dlisability

directly resulting from injury sustained in the course

and within the scope of his employment under this

contract shall not impair the right of the Player to

receive his full salary ... together with the

reasonable medical and hospital expenses

incurred by reason of the injury... .” MSJ, exhibit A,

DT 853 at para. 2 (emphasis added).

As shown above, the requirement to provide

“reasonable medical, surgical, and hospital services

and medicines, or other attendance or treatment

recognized by the laws of this state as legal, when

they are needed” is imposed outside the CBA and

UPA by the MWDCA. The Tigers had to satisfy this

requirement for any member of the public whom they

hired as an employee. Thus, the construction of the

CBA or UPA is unnecessary to resolve Brocail’s tort

claams and he was not required to follow the

grievance procedure contained therein.

|12] Likewise, the other authorities on which the

Tigers rely clearly confirm that preemption does not

App. 75

apply here. In Burgos v. Southwestern Bell Telephone

Co., 20 F.3d 633 (5th Cir. 1994), the plaintiff alleged

that an employer inflicted emotional distress upon

the decedent by repeatedly and _ wrongfully

transferring him to different jobs, which caused him

to quit. However, the employer’s right to transfer

employees among various positions was governed by

the CBA’s procedures for work-force adjustments. /d.

The court held that the claim was preempted because

an analysis of the CBA was necessary to determine

whether the employer acted wrongfully in the way it

transferred the decedent, required him to take

different tests, and effected the decedent’s termina-

tion. Jd. at 636.

In Thomas v. LTV Corporation, 39 F.3d 611 (5th

Cir. 1994) the issue was whether a claim arising out

of an agreement ancillary to a CBA was preempted.

The employee had excessive attendance problems. /d.

at 614. The governing CBA contained grievance and

arbitration procedures for disciplinary actions and

the interpretation and application of the agreement.

Id.

As a condition of his continued employment, the

employee was required to sign an attendance

probation agreement. (“APA”). Jd. It provided that his

absences could not exceed four percent of his

scheduled work time within any three-month period

and that any unexcused absences would result in his

immediate termination without resort to the CBA’s

grievance procedures. Jd. The employee signed the

App. 76

agreement, which was also approved by the union

steward. Id.

Subsequently, the employee sustained an on the

job injury that caused him to be absent in excess of

the minimum requirements of the APA. Jd. at 614-15.

After determining that the APA had been violated,

the employer terminated him.

[13] The employee filed suit alleging breach of

contract, promissory estoppel, intentional and negli-

gent infliction of emotional distress, and a ciaim

under the Texas Labor Code for wrongful discharge in

retaliation for filing a workers’ compensation claim.

Id. at 615. The trial court ruled that the claims were

preempted.

The court of appeals concluded that the APA was

tantamount to a CBA. 7d. at 618. The breach-of-

contract and estoppel claims were based on the

interpretation of the method for calculating absences

specified in the APA. Jd. Consequently, the claims

were substantially dependent on the terms of the APA

and preempted.

The court also held that the claim for infliction of

emotional distress was preempted. One of the ele-

ments of the employee’s claim was that the

employer’s conduct was wrongful. /d. at 619. How-

ever, the propriety of the employer’s conduct neces-

sitated an analysis of the disciplinary procedures in

of the CBA. Again the claim was substantially

dependent on the CBA and was preempted. /d.

App. 77

Significantly, the court recognized that a claim

based on the state statutory prohibition against firing

a worker in retaliation for filing a worker’s compensa-

tion claim was not preempted. Jd. at 620. However,

the court emphasized that the employee steadfastly

maintained that his wrongful discharge claim was

based solely on the interpretation of the four percent

provision contained in the APA. /d. at 621. Thus, the

wrongful discharge claim was based solely on the

interpretation of the CBA and was preempted. /d.

Here, Brocail has not asserted an interpretation or

misinterpretation of the CBA or UPA to support his

claims as the employee did in Thomas.

In Landry v. The Cooper/T: Smith Stevedoring

Co., 880 F.2d 846, 851 (5th Cir. 1989), preemption

was not an issue. The court identified the controlling

issue as whether [14] the labor union had violated its

duty of fair representation to the plaintiff employee.

The court held that there was no evidence that the

union had breached its duty. 7d. at 855. In other

words, the plaintiff merely failed to sustain his

burden of proof. The claim was not preempted.

Similarly, in Barrow v. New Orleans Steamship

Association, 932 F.2d 473 (5th Cir. 1991), preemption

was not an issue. Instead, the court held that the

employee’s claims asserting age discrimination under

the Americans with Disabilities Act and breach of

contract were time barred, that his claim of retalia-

tion should not have been dismissed with prejudice

for not first filing it with the EEOC, and that his

claim for emotional distress was improperly

App. 78

dismissed as being time barred. Jd. at 478. Pre-

emption and the LMRA were not even mentioned.

D. Brocail’s Claims Involve Only Factual

Questions About The Conduct And

Motives Of The Tigers.

Further confirming that interpretation of the

CBA and UPA is unnecessary is the nature of

Brocail’s allegations, which present only factual

issues pertaining to the Tigers’ conduct and motives.

For example, whether the Tigers failed to follow

physicians’ orders is a fact issue pertaining to their

conduct. Whether the Tigers failed to designate team

personnel that could properly monitor, diagnose, and

treat Brocail’s condition is another. The Tigers

identify no provision in the CBA or UPA that must be

interpreted to resolve the factual issues they identify

in their motion. At best, the Tigers can only claim

that the various fact issues “implicate” the CBA. MSJ

at { 37. Yet, mere implication is insufficient. Lingle,

466 U.S. at 413 R. 12 (stating that disputes

tangentially involving a provision of a CBA are not

preempted). Because the Tigers have [15] failed to

sustain their burden to show that they are entitled to

judgment as a matter of law, their motion should be

denied.

App. 79

No. 14-06-00557-CV

IN THE COURT OF APPEALS FOR

THE FOURTEENTH DISTRICT OF TEXAS

Douglas K. Brocail,

Appellant

Detroit Tigers, Inc.,

Appellee

On Appeal from Trial Court Cause No. 2002-48741

In the 125th Judicial District Court

Harris County, Texas

APPELLANT’S BRIEF

Bruce E. Ramage

State Bar No. 16492500

Levon G. Hovnatanian

State Bar No. 10059825

Dale Jefferson

State Bar No. 10607900

MARTIN, DISIERE, JEFFERSON

& Wispom, L.L.P.

808 Travis, Suite 1800

Houston, Texas 77002

(713) 632-1700 — Telephone

(713) 222-0102 — Facsimile

Thomas W. Pirtle

State Bar No. 16038610

LAMINACK, PIRTLE

& MARTINES

440 Louisiana, Suite 1250

Houston, Texas 77002

(713) 292-2750 — Telephone

(713) 292-2755 — Facsimile

Michael Lowenberg

State Bar No. 24001164

The O’Quinn Law Firm

2300 Lyric Centre Building

440 Louisiana Street

Houston, Texas 77002

(713) 223-1000 — Telephone

(713) 222-6903 — Facsimile

ORAL ARGUMENT REQUESTED

App. 80

[4] ARGUMENT

BROCAIL’S CLAIMS ARE NOT PREEMPT-

ED BY THE LABOR MANAGEMENT RELA-

TIONS ACT.

The Labor Management Relations Act does not

preempt every state-law claim that is related to

employment that is governed by a CBA. Instead, only

claims that require the interpretation of a CBA’s

provisions are preempted. The summary judgment

should be reversed because the resolution of Brocail’s

common-law claims do not require the interpretation

of the CBA or the UPC and Brocail’s allegations

present only factual questions about the Tigers’

conduct and motives.

A. Preemption Under The Labor Manage-

ment Relations Act Applies Only To

Claims Whose Resolution Depends On

The Interpretation Of The CBA.

The United States Supreme Court has repeatedly

held that not every dispute ... tangentially involving

a provision of a collective-bargaining agreement is

preempted by § [5] 301 [of the Labor Management

Relations Act]... .” Lingle v. Norge Div. of Magic Chef

Inc., 486 U.S. 399, 413 n.12 (1994) (quoting Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985)).

Instead, preemption is limited only to claims that “de-

pend| | upon the meaning of a collective-bargaining

agreement... .” Jd. at 405-06. In other words, there is

no preemption if the “resolution of the state-law claim

App. 81

does not require construing the collective-bargaining

agreement.” /d. at 407. However, the court’s exami-

nation of a CBA to determine the preemption issue is

not tantamount to interpreting the CBA. Milne Em-

ployees Ass’n v. Sun Carriers, Inc., 960 F.2d 1401,

1409 (9th Cir. 1991).

“Plurely factual questions’ about an employee’s

conduct or an employer’s conduct and motives do not

‘requir[e] a court to interpret any term of a collective-

bargaining agreement.” Hawaiian Airlines, Inc. v.

Finazzo, 512 U.S. 246, 261 (1994) (quoting Lingle,

486 U.S. at 407). “[E]ven if dispute resolution pur-

suant to a collective-bargaining agreeinent, on the

one hand, and state law, on the other, would require

addressing precisely the same set of facts, as long as

the state-law claim can be resolved without inter

preting the agreement itself, the claim is ‘independ-

ent’ of the agreement for § 301 preemption purposes.”

Id. at 262 (quoting Lingle, 486 U.S. at 409-410). As

shown below, the Tigers never showed in their motion

for summary judgment that the resolution of Brocail’s

tort claims required the interpretation of any part of

the CBA or UPC.

App. 82

In Order To Establish Preemption, The

Tigers Were Required To Show That

The Interpretation Of Specific Provi-

sions Of The CBA Or UPC Was Nec-

essary To Resolve Brocail’s Tort Claims.

The Tigers’ motion for summary judgment was

based on a false assumption. They erroneously assert-

ed:

[6] Without reference to and reliance on the

CBA, the UPC and the Regulations, the

Tigers would have no duty or obligation to

provide any medical services to Brocail

s,ecause Brocail’s claims implicate the CBA,

the UPC and the Regulations, they are

preempted and thus governed by Section 301

of the LMRA.

R. 110. As shown below, the Tigers’ own general

counsel, John Westhoff, refuted that the CBA or UPC

obligated the Tigers to provide reasonable medical

services to Brocail. Moreover, “implication” of the

CBA and UPC is an insufficient basis for preemption

The opinions on which the Tigers

relied identified a specific provision

of the CBA or ancillary agreement as

the basis for preemption.

The opinions on which the Tigers relied confirm

that preemption must be established by identifying a

specific part of the CBA or UPC that must be inter

preted to resolve Brocail’s tort claims. In Jnter

national Brotherhood of Electric al Worker v. Heckler,

App. 3.3

481 U.S. 851 (1987). the Court dealt with a situation

far removed from the one here, but still based its

>

preemption holding on a specific CBA provision.

There, the employee attempted to take advantage of

Florida law’s recognition that the violation of a

contract permitted the plaintiff to file either an action

for breach of contract or a tort action for the injuries

sustained as a result of a contract violation. /d. at

860. The contract was a CBA and ancillary agree-

ments. Jd. at 861. The employee asserted that her

union, not her employer, had breached a duty.

As the Court emphasized, the employee actually

pled that the tort duty that was the basis of her claim

was created by the CBA and the agreements

She asserts that “pursuant to contracts and

agreements” between the Union and [the

employer], “to which contracts and agree

ments the Plaintiff was a third party bene

ficiary,” the Union owed respondent a duty of

care to [7] ensure her a safe working envi

ronment. Having assumed this duty

under the collective bargaining agree-

ment, the Union — according to the com-

plaint — was then negligent by allowing [the

Plaintiff} to be assigned to work in a

dangerous location and environment and by

failing to provide her with or ascertaining

that she had the necessary training, experi

ence, background, and education to work in

such a dangerous environment,” and was fur

ther negligent in failing to “providle] and

or enforcle] safety rules, ‘ulations and

App. 84

requirements which would preclude such

persons with inadequate and insufficient back-

ground, training, education, and experience,

such as the Plaintiff, . . . from being placed in

such an inherently dangerous working en-

vironment.”

Id. at 861 (emphasis added). The employee had even

conceded that “‘[t]he nature and scope of the duty of

care owed Plaintiff is determined by reference to the

collective bargaining agreement.’” /d. at 862 n.5

The CBA and ancillary agreements between the

union and the employer contained provisions govern

ing safety and working requirements. Specifically, the

CBA imposed upon the union the requirement that

“no employee shall be allowed or required to take any

undue risk in the performance of his duties which he

or his Foreman or Supervisor consider unsafe to

himself or to his fellow workers.” /d. at 861 n.4. It

also required a joint safety commission to develop

effective safety programs for all employees. /d. In

order for the employee's claim to be successful, these

DrovVvisions and others had to be interpreted to Ibpose

an implied duty on the union and to determine the

scope of that duty. Jd. Because her tort allegation

were entirely dependent on the breach of a duty that

could be derived only from the interpretation of thi

terms of the CBA and its ancillary

claim was preempted. /d

rhe

AF L-CIO-CLC

opinion

App 85

its preemption [8] holding on specific provisions of the

CBA or ancillary agreement that had to be inter

preted to resolve the employee's claims. There, the

survivors of miners’ who were killed during a mine

fire asserted a state-law claim agaiast the miners’

union for the negligent inspection of the mine. /d. at

364. Again, the allegations were based on the failure

to properly perform duties created by the CBA:

[Tlhe Union “undertook to act as accident

prevention representative and enforcer of

an agreement negotiated between [sic]

[the Union] on behalf of the deceased

miners, and “undertook to provide repre

sentatives who inspected [the Sunshine

Mine| and pretended to enforce the con

tractual accident prevention clauses.’

emphasis added) (citations omitted

(quoting the complaint). The Court observed that the

quoted, emphasized, allegation was “a plain reference

to the collective-bargaining agreement with the oper

ator of the Sunshine Mine.” /d. at 369-70. The C

observed Li there wa: ) yuestion that

tiffs alleged a duty cre i by the CBA a

for their tort claim

that the iL)

which respondents relied as the basis of thei

tort suit was one allegedly assumed by

the Union in the collective bargaining

agreement

App. 86

Id. at 370 (emphasis added). The court further em-

phasized that the survivors had merely alleged the

breach of the CBA:

If the Union failed to perform a duty in con-

nection with inspection, it was a duty arising

out of the collective bargaining agreement

signed by the Union as the bargaining agent

for the miners.

Id. at 371. The Court then made it absolutely clear

that the claim was preempted because it was based

on a contractual duty found in the CBA:

[9] Preemption by federal law cannot be

avoided by characterizing the Union’s negli-

gent performance of what it does on behalf of

the members of the bargaining unit pursuant

to the terms of the collective-bargaining con-

tract as a state-law tort.

Id. at 371-72. Once again, preemption was based on a

specific provision in the CBA that created the duty

that was the basis for the tort claim. None of Brocail’s

claims is based on a duty created by the CBA or UPC.

Likewise, the other authorities on which the

Tigers rely clearly confirm that preemption applies

only when it is shown that a specific provision of the

CBA must be interpreted. In Burgos v. Southwestern

Bell Telephone Co., 20 F.3d 633 (5th Cir. 1994), the

plaintiff alleged that an employer inflicted emotional

distress upon the decedent by repeatedly and wrong-

fully transferring him to different jobs, which caused

him to quit. However, the employer’s right to transfer

App. 87

employees among various positions was governed by

the CBA’s written procedures for work-force adjust-

ments. Id. T

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