Reply Brief — National Football League v. Williams

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cy 12 2010 |

No. 09-1380 OFFICE OF THE CLERK |

. IN THE .

Supreme Court of the Wnited States

THE NATIONAL FOOTBALL LEAGUE,

Petitioner,

KEVIN WILLIAMS AND PAT WILLIAMS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

REPLY BRIEF FOR PETITIONER

Joseph G. Schmitt Daniel L. Nash

Peter D. Gray Counsel of Record

NILAN JOHNSON LEWIS Patricia A. Millett

400 One Financial Plaza Marla S. Axelrod

Minneapolis, MN 55402 AKIN, GUMP, STRAUSS,

(612) 305-7500 HAUER & FELD LLP

1333 New Hampshire

Michael C. Small Ave., NW

AKIN, GUMP, STRAUSS, Washington, DC 20036

HAUER & FELD LLP (202) 887-4000

2029 Century Park East dnash@akingump.com

Suite 2400

Los Angeles, CA 90067

(310) 229-1000

LNT M iN ARR ERNRER a PEO OMB en

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF AUTHORITIES. ............00000000c cece cee 11

I.

TABLE OF CONTENTS

THE EIGHTH CIRCUITS DECISION

EXPANDS AN KNTRENCHED

CONFLICT IN THE CIRCUITS AND

CONTRAVENES THIS COURTS

PRECEDENT ........000..0 cece ccc cec ee ceeeeeeeeeceee ees

THE EIGHTH CIRCUIT'S DECISION

PREVENTS THE UNIFORM

ADMINISTRATION OF COLLECTIVE

BARGAINING AGREEMENTS AND

ARBITRAL AWARDG...............0.00.cc cece ee cee eee es G6

CONCLUSION 20000... ce ccc ecc cece cece eee eeeceeeees 13

TABLE OF AUTHORITIES

Cases

Allts-Chalmers Corp. v. Lueck,

ATE US BB Be CE civkvoceccasceacsssascnaseeeee 5. 7

Carlsbad ge Inc. v. HIF Bro, Inc..,

129 S. . 1862 (2009) PR RRC TA Re ee 5

are Inc. v. Williams,

482 U.S. 386 (1987) lavinacdcsaccansersesseianen ae 2

Cramer v. Consolidated Freightways, Inc.,

255 F.3d. 683 (9th Cir. 2001) (en banc)................. 4

Eastern Assoc. Coal Corp. v. United Mine

Workers of Am..,

531 U.S. 57 (G00) cee 8

= v, py

eee UPS, BRT CTD vancccvcccdicccicoees acne 1]

Fry v. Atrline Pilots Ass'n,

88 F.3d 851 (20th Cir: 1906)... ee

Hawaiian Airlines, Inc. v. Norris,

512 U.S. BOG (I; vevinseeds cccessecsin eee

Sarre »s UV. Boeing Co.,

5 F.3d 1189 (10th Cir. 2003) .......cccccccceeeeeeeee: 4,5

Lewis v. Continental Bank Corp.

494 U.S. 472 (1990)........... alee 11

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

486 U.S. BOS CIGBS) ono nuccesccccccscccsesssevsces veeeeee DASSLN

Lodge 76 Int'l Ass'n. of Machinists and

Aerospace Workers v. Wisconsin

Employment Relations Comm n,

27 U.S. TSS CTBT) aivuccaccccccicveaseanct eee 9

Smith v. Colgate-Palmoltve Co..,

943 F.2d 764 (7th Cir. 1991)

Sprewell v. Golden State Warriors,

266 F.3d 979 (9th Cir. 2001)

Teamsters v. Lucas Flour Co..,

369 U.S. 95 (1962)...

Thermtron Prods., Inc. v. Hermansdorfe

423 U.S. 336 (1976).......

U.S. Bancorp Mortgage Co. v. Bonner Mail

P’ship,

013 U.S. 18 (1994)

United States v. Munsingwear, In

340 U.S. 36 (1950)

In harmony with the Ninth Circuit but in direct

conflict with the Seventh and Tenth Circuits, the

Kighth Circuit held that defenses based on a

collective bargaining agreement are irrelevant to

whether state law claims originally brought in

federal court. are preempted under Section 301 of the

Labor Management Relations Act (“LMRA’).

Respondents largely ignore this conflict, relying

instead on cases that are inapt or reinforce the

conflict in the circuits. Beyond that, respondents’

efforts to backhand the disruption to the law caused

by the court of appeals’ decision never comes to grips

with the central importance of uniformity in the

enforcement of collective bargaining agreements and

arbitration awards issued to enforce their terms.

In this case, the Eighth Cuircuit’s decision has

allowed state-law claims to hiack for more than a

year the enforcement of a lawful arbitration award

issued under Section 301 that actually was affirmed

by the court of appeals and, in the process, to unravel

deliberately strict, collectively-bargained protections

against the use of prohibited substances. in

professional sports.

I. THE EIGHTH CIRCUIT'S DECISION

EXPANDS AN ENTRENCHED CONFLICT

IN THE CIRCUITS AND CONTRAVENES

THIS COURT'S PRECEDENT.

As the petition explains and four Circuit Judges

below recognized, the root cause of the split in the

circuits is the failure of the Eighth and Ninth

Circuits, in contrast with the Seventh and Tenth

Circuits, to enforce the fundamental distinction that

this Court has drawn in Section 301 cases between

7.

the jurisdictional doctrine of complete preemption

and the substantive doctrine of ordinary preemption.

Complete preemption is a jurisdictional inquiry

that addresses the removability to federal court of

state law claims originally brought in state court.

Because it is the plaintiffs complaint that controls

this inquiry, removal may not be based on defenses

asserted under the collective bargaining agreement.

Caterpillar Inc. v. Williams, 482 U.S. 386, 396-399

(1987).

Ordinary preemption applies when removability

and jurisdiction are not in question, J.e., to cases

involving state law claims that already have been

remanded to state court or (as here) were originally

brought in federal court. In such cases, the Section

301 preemption analysis goes beyond _ the

jurisdictional inquiry of the complete preemption

doctrine and determines the ultimate question of

substantive preemption on the merits. For that

inquiry, defenses based on a collective bargaining

agreement may be considered in determining if the

state-law claims are preempted. Caterpillar, 482

U.S. at 398 n.13 (defenses relevant to preemption of

remanded claims); Lingle v. Norge Div. of Magic Chef,

486 U.S. 399, 402, 407 (1988) (defenses relevant to

preemption of state law claims brought in federal

court).

A. As noted in the petition (at 9-10), the Seventh

and Tenth Circuits have hewed to this Court’s

direction in Caterpillar and Lingle and held that

defenses based on a collective bargaining agreement

are relevant to Section 301 preemption of state law

3

claims originally brought in federal court. Smith v.

Colgate-Palmolive Co., 943 F.2d 764, 769-771 (7th

Cir. 1991); Fry v. Airline Pilots Ass’n, 88 F.3d 831,

838 & n.8 (10th Cir. 1996).

Respondents’ effort (BIO 16) to distinguish Fry on

the ground that it arises under the Railway Labor

Act (“RLA”) fails. This Court held in Hawauan

Airlines, Inc. v. Norris, 512 U.S. 246, 259 (1994), that

the preemption inquiry under the RLA mirrors

Section 301 analysis. And consistent with Norris, the

Tenth Circuit in Fry applied the Section 301

framework in determining whether state law claims

brought in federal court were preempted by the RLA.

In contrast to the Seventh and Tenth Circuits, a

divided Eighth Circuit here conflated complete and

ordinary preemption. In so doing, the Eighth Circuit

tracked the law in the Ninth Circuit, which also has

held ‘that defenses based on a collective bargaining

agreement are irrelevant to the preemption of state

law claims originally brought in federal court.

Sprewell v. Golden State Warriors, 266 F.3d 979, 991

(9th Cir. 2001). Respondents contend that Sprewell

did not “stake out a position on the issue... .” BIO

17. But that defies a plain reading of Sprewell. Even

though the plaintiffs state law claims were brought

in federal court in the first instance, thus making

Sprewell an ordinary preemption case, the Ninth

Circuit applied complete preemption principles,

stating unequivocally that “any attempt by

[defendants] to pull Sprewell’s . . . claims in to the

preemptive scope of section 301 by mounting a

defense in reliance on the [collective bargaining

agreement] would be fruitless.” Sprewell, 266 F.3d at

991 (emphasis added). To support that misplaced

proposition, the Ninth Circuit relied on an earlier

complete preemption case in which removability

jurisdiction was at issue and held that “the need to

interpret the [collective bargaining agreement] must

inhere in the nature of the plaintiffs claim.” Jd.

(quoting Cramer v. Consolidated Freightways, Inc.,

255 F.3d. 683, 692 (9th Cir. 2001) (en banc)). See also

Cramer, 255 F.3d at 688 (noting removability issue).!

Respondents’ reliance (BIO 16) on Karnes uv.

Boeing Co., 335 F.3d 1189 (10th Cir. 2003),

demonstrates that they share the Eighth and Ninth

Circuits’ confusion. Karnes was a_ complete

preemption case. The claims under the state drug-

testing statute were originally brought in state court,

and the defendant sought to remove the case to

federal court under Section 301 on the basis of drug-

testing provisions in a_ collective’ bargaining

agreement. Jd. at 1192. For that reason, the Tenth

Circuit held that it must look solely to plaintiffs

' Respondents wrongly assert (BIO 17-18) that the Ninth

Circuit in Sprewell considered defenses as part of its preemption

analysis. The Ninth Circuit merely posited that, even if the

defendants in that case had argued that the collective

bargaining agreement implicitly waived the plaintiff's claims,

those claims would not be waived because the waiver was not

express. 266 F.3d at 992. The Ninth Circuit’s musings in dicta

about the waiver of nonpreempted state law claims have

nothing to do with whether collective bargaining agreement-

based defenses should be factored into the preemption analysis,

as this Court recognized in Lingle. See 486 U.S. at 409 n.9

(distinguishing between waiver of non-preempted state

statutory rights and the preemption of those rights).

complaint in determining whether the case should be

removed under Section 301. /d. at 1193.

B. Unable to escape the depth and breadth of the

conflict in the courts, respondents wrongly argue

(BIO 11-12) that the issue is not properly presented

here. Respondents’ assertion stems from the mere

fact that the Eighth Circuit situated its holding that

defenses are irrelevant to Section 301 preemption in

its discussion of respondents’ Lawful Consumable

Products Act (“LCPA”) claim, which is no longer in

the case, and not in its discussion of the Drug Testing

in the Workplace Act (“DATWA”) claim, which

remains in controversy. But the Eighth Circuit's

categorical holding that defenses are irrelevant to

Section 301 preemption analysis was not in any way

dependent on the nature of the LCPA claim, which

the dissenting judges below recognized. See Pet. App.

70a (“In holding that the claims are not preempted,

the panel reasoned that the NFL’s defenses to

hability under Minnesota law must not be considered

in determining whether the state-law claims are

‘substantially dependent upon analysis’ of a collective

bargaining agreement, Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 220 (1985), and thus preempted by §

301.”) (emphasis added). Nor could it be. The role of

defenses in Section 301 preemption is a question of

federal law, not an issue that varies from one state-

law claim to another.?

2 Respondents’ contention (BIO 9-10) that this Court should

deny the petition on the grounds that the Eighth Circuit lacked

jurisdiction following the district court’s remand of the case

defies controlling precedent decided just last year. See Carlsbad

6

THE EIGHTH CIRCUIT’S DECISION

PREVENTS THE UNIFORM

ADMINISTRATION OF COLLECTIVE

BARGAINING AGREEMENTS AND

ARBITRAL AWARDS.

The foundational purpose of Section 301

preemption is ensuring uniformity in the

administration of collective bargaining agreements,

which is indispensable to Congress’s intent that

collective bargaining be the central mechanism for

resolution of labor-management disputes. Lingle,

486 U.S. at 406. Like the Ninth Circuit in Sprewell,

the Eighth Circuit’s decision in this case makes such

uniformity impossible and, in fact, openly invites the

use of state-law claims to impair and impede the

enforcement of collective bargaining agreements and

their arbitration awards, even when, as here, an

arbitration award has been upheld as lawful. The

decision further empowers state courts to impose

conflicting interpretations of the same collective

bargaining agreement based on _ the _ lmitless

variability of state laws.

That is precisely what happened here. An

arbitration award issued pursuant to the express and

unambiguous terms of the Collective Bargaining

Agreement (“CBA”) between the NFL and the NFL

Players Association upheld the suspensions of

respondents, who play for the Minnesota Vikings,

and three New Orleans Saints players for violating

the CBA’s Policy on Anabolic Steroids and Related

Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009); Thermtron

Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976).

7

Substances (“Policy”). Pet. App. 2a-4a. But after the

Eighth Circuit’s “defenses are irrelevant” remand,

respondents secured a Minnesota. state court

injunction against enforcement of the arbitrator's

award. Pet. 16. The result was one rule (no

suspensions for violating the Policy) for respondents

and players in Minnesota and a different rule

(suspensions for violating the Policy) for players in

Louisiana and other states. That checkerboard

administration of collective bargaining agreements is

exactly what Section 301 is intended to prevent.

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

(1962).

’

Respondents make no effort to deny these

profound problems but instead offer arguments that

do not withstand scrutiny.

First, respondents attempt (BIO 17) to pass off

their use of state law to trump arbitral decisions

under Section 301 as par for the jurisprudential

course. But their argument depends largely on

wrenching out of context this Court’s statement in

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212

(1985), that Ҥ 301 does not grant the parties to a

collective-bargaining agreement the _ ability’ to

contract for what is illegal under state law.” In the

very next sentence, the Court made clear that it was

referring only to claims under state law that are

“independent of a labor contract” -- that is, claims

that, unlike here, are not preempted because their

resolution does not require interpretation of a

collective bargaining agreement. Id.

8

Moreover, respondents ignore that any challenge

to the legality of the arbitration award was required

to be made under the LMRA’s “narrow” exception

that allows federal courts to vacate arbitrator rulings

only when they “run contrary to an explicit, well-

defined, and dominant public policy.” Eastern Assoc.

Coal Corp. v. United Mine Workers of Am., 531 U.S.

57, 63 (2000). The NFL Players’ Association

challenged the award on those grounds. The court of

appeals rejected that challenge and confirmed the

award, Pet. App. 38a-39a. But in allowing

respondents’ separate challenge to proceed in state

court, the court of appeals’ ruling licensed a state

judge to enjoin under state law the very award that

the court of appeals had upheld under the LMRA as

consistent with public policy. Respondents fail to

confront that fundamental incoherence in the court of

appeals’ decision.*

Second, respondents fare no better with their

citation to non-LMRA decisions for the proposition

that “there is a- strong presumption = against

preempting a state’s legislation in the areas of the

health and safety of its citizens.” BIO 17. The LMRA

recognizes no such “presumption,” as confirmed by

this Court’s decision in Lingle. There, the Court

applied ordinary Section 301 preemption principles

’ Respondents also contend that the NFL and the NFL

Players’ Association could not have waived through a collective

bargaining agreement respondents’ rights under DATWA. BIO

20. That is irrelevant because the NFL is not arguing that

respondents’ DATWA rights are waived. The NFL is arguing

that the DATWA claims are preempted. That is very different.

See Lingle, 486 U.S. at 409 n.9.

0

despite Illinois’ strong public policy in favor of

protecting the rights of employees in that State to

seek redress for injuries under its’ workers’

compensation law. /d, at 408-410 & n.6.1

Respondents’ invocation of non-LMRA cases also

confuses the standard for preemption under the

LMRA -- which broadly requires “doctrines of federal

labor law uniformly to prevail over inconsistent loca]

rules,” Lucas Flour, 369 U.S. at 104 -- with tests for

preemption in different contexts. BIO 17-19 (citing

Wyeth v. Levine, 129 S. Ct. 1187 (2009) (conflict

preemption); Farmer v. United Bhd. of Carpenters

and Joiners of Am., Local 25, 430 U.S. 290, 303

’

(1977) (National Lavor Relations Act preemption))

Third, respondents suggest (BIO 22-23) that,

because Congress has not passed another law in

addition to the LMRA, Congress must have intended

for state laws (like DATWA) to create a state-by-state

patchwork of rules governing the drug testing of

athletes in national professional sports leagues. That

argument is completely irrelevant to the question of

how existing law -- the LMRA -- operates, as well as

‘Respondents get no help from their citation (BIO 18) to

Lodge 76 Int'l Ass'n. of Machinists and Aerospace Workers

Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976)

There, this Court held that recourse to state law to block union

members’ refusal to work overtime during negotiations for

renewal of a collective bargaining agreement was preempted by

the National Labor Relations Act’s comprehensive federal

policies, notwithstanding arguments about the importance of

state prerogative in the area of health and safety. /d. at 149

15]

LO

to the pressing need for this Court’ to” bring

uniiormity to that statute’s preemption principles

The argument is also wrong. It simply ignores

the praise that the NFL's strict anti-doping policy

has received from Members’ of Congress, and

Congress's full familiarity, evidenced through years

of hearings, with the increasing role of collective

bargaining agreements in addressing the problem of

professional athletes’ use of performance enhancing

drugs. See Amici Curiae Brief of Major League

Baseball, et al., 6-10. The fact that Congress has not

preempted respondents’ claims a second time by

passing yet another law thus says nothing about the

need for this Court’s review to bring uniformity to a

federal law (the LMRA) that is itself expressly

designed to ensure uniformity in the interpretation of

collective bargaining agreements

Finally, respondents assert (BIO 6) that this

Court's review 1s not. warranted because the state

court litigation that has postponed enforcement of a

lawful arbitration award for more than a year might

(or might not) soon conclude, and thus the case might

(or might not) become moot. Of course, respondents

are arguing quite a different story in those state

court proceedings, insisting that the case and its

continuing injunction against enforcement of the

arbitration award and other aspects of the collective

bargaining agreement should continue at least for

this football season. Resp. Minn. Ct. App. Opp. To

NFL Mot. To Dismiss Appeal at 5, 10, Willtams ov.

NFL, No. A10-922 (Minn. Ct. App. Sept. 15, 2010).

1]

In any event, the contention that state court

proceedings might be resolved in favor of the NFL is

no answer to the question whether those state-court

proceedings -- and, in particular, the ongoing state-

law injunction against enforcement of a collectively

bargained agreement and lawful arbitral award --

should exist in the first place or are, instead,

preempted. Respondents have not confessed error;

the litigation continues; and the injunction blocking

the arbitration award upholding respondents’

suspensions continues. Resp. App. 48a. The need for

this Court’s review likewise continues. See Lewis v.

Continental Bank Corp. 494 U.S. 472, 477 (1990);

Elkins v. Moreno, 435 U.S. 647, 676 (1978)

(Rehnquist, J., dissenting) (“And while the case may

become moot if the Court of Appeals of Maryland

decides that holders of G-4 visas can establish

Maryland domicile and if the University changes its

policy in light of that decision, the case is not moot

now.) (original emphasis).

Furthermore, if the Minnesota. state court

litigation were itself to become moot (BLO 7), it would

be due to respondents’ unilateral, deliberate, and

voluntary decision, after obtaining an_ injunction

pending appeal, not to file a notice of appeal while

this certiorari petition was pending. Resp. App. 50a-

6la. The appropriate response from this Court to

voluntarily induced mootness that prevents this

Court’s review would be to grant the petition and

then to vacate the Eighth Cuircuit’s judgment of

remand. “[T]he established practice of the Court in

dealing with a civil case from a court in the federal

system which has become moot * * * pending [the

Court’s} decision on the merits is to reverse or vacate

12

the judgment below and remand with a direction to

dismiss.” U.S. Bancorp Mortgage Co. v. Bonner Mall

P’ship, 513 U.S. 18, 22 (1994) (quoting United States

v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). The

central purpose of Munsingwear vacatur 1s to “clear[]

the path for future relitigation of the issues between

the parties,” and to “prevent a judgment,

unreviewable because of mootness, from spawning

any legal consequences,’ Munsingwear, 340 U.S. at

40, 41, hke the substantial inroads on LMRA

preemption and the uniform enforcement of collective

bargaining agreements and their arbitration awards

that the Eighth Circuit’s decision invites.5

5 Vacatur would be limited to the judgment of remand in

National Football League, et al. v. Williams, (Eighth Circuit No.

09-2247, which is the only judgment of the Eighth Circuit

pending before this Court. The court of appeals consolidated in

a single decision its review of three separate appeals. However,

no party sought review in this Court of the court of appeals’

judgment rejecting the NFL Players’ Association’s separate

appeal (NFLPA v. NFL, et al., No. 09-2249), or of the judgment

rejecting respondents’ appeal challenging the dismissal of their

state common law claims (Williams v. NFL, et al., No. 09-2462).

CONCLUSION

For the foregoing reasons, the petition for a

writ. of certiorari should be granted.

Joseph G. Schmitt

Peter D. Gray

NILAN JOHNSON LEWIS

400 One Financial Plaza

Minneapolis, MN 55402

(612) 305-7500

Michael C. Small

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

2029 Century Park East

Suite 2400

Los Angeles, CA 90067

(310) 229-1000

October 12, 2010

Respectfully submitted,

Daniel L. Nash

Counsel of Record

Patricia A. Millett

Marla S. Axelrod

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

1333 New Hampshire

Ave., NW

Washington, DC 20036

(202) 887-4000

dnash@akingump.com