Case Document 155 Filed 08/02/19 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

DAVID LANE JOHNSON, 1/ I 
Plaintiff,

No. 17-cv-513l (RJS)
OPINION ORDER

 

NATIONAL FOOTBALL LEAGUE PLAYERS
ASSOCIATION,

Defendant.

 

 

RICHARD J. SULLIVAN, Circuit Judge:

 

Now before the Court is Defendant National Football League Players Association?s
motion for summary judgment. (Doc. No. 134.) For the reasons stated below, the motion
is GRANTED.

I. BACKGROUND

The Court assumes the parties? familiarity with the facts and procedural history of this case,
which are set forth in detail in the Court?s October 3, 2018 Opinion and Order. (Doc. No. 125.) In
that opinion, the Court granted Defendant?s motion to dismiss Plaintiff?s First Amended Complaint
except as to Plaintiff?s claim under Section 104 of the Labor Management Reporting and Disclosure
Act which alleged that the NFLPA refused to provide, upon request, a copy of the full
operative collective bargaining agreement between the parties. (Id) In doing so, the Court made clear
that the only relief to which Plaintiff could be entitled under that claim was a copy of the complete
agreement. (Id. at 17 

Subsequently, on October 16, 2018, the NFLPA produced to Plaintiff what the NFLPA
describes as ?a complete copy of the 2015 Policy and all agreements that modi?ed the 2015 Policy.?
(Doc. No. 126 at 4.) On October 23, 2018, the Court issued an order finding that, because Plaintiff?s

surviving LMRDA claim ?turns on the question of whether the October 16 document

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production has mooted the claim . . . further discovery is not appropriate,? and set a brie?ng schedule
for the motion for summary judgment. (Doc. No. 131.)

On November 19, 2018, Plaintiff filed a letter regarding a contemplated motion seeking
discovery under Federal Rule of Civil Procedure 56(d). (Doc. No. 141.) The NFLPA responded on
November 26, 2018. (Doc. No. 144.) After directing a reply by Plaintiff, which was ?led on December
3, 2018 (Doc. No. 149), the Court deemed the motion made and fully briefed (Doc. No. 146). On
January 9, 2019, the Court denied Plaintiff?s Rule 56(d) motion for discovery, reasoning that ohnson?s
request for discovery was ?not related to his remaining claim and . . . not proportional to the needs of
the case.? (Doc. No. 150 at 2). Subsequently, on January 16, 2019, Plaintiff filed his opposition to the
NF motion for summary judgment. (Doc. Nos. 151 (?Johnson 152.) The NFLPA ?led
its reply on January 28, 2019, at which point the motion was fully briefed. (Doc. Nos. 153, 154.)

II. LEGAL STANDARD

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should
be granted ?if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.? Fed. R. Civ. P. 56(a). There is ?no genuine
dispute as to any material fact? where (1) the parties agree on all facts (that is, there are no disputed
facts); (2) the parties disagree on some or all facts, but a reasonable fact??nder could never accept
the nonmoving party?s version of the facts (that is, there are no genuinely disputed facts), see
Matsushita Elec. Indus. C0., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586?87 (1986); or (3) the
parties disagree on some or all facts, but even on the nonmoving party?s version of the facts, the
moving party would Win as a matter of law (that is, none of the factual disputes are material), see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether a fact is genuinely disputed, a court ?is not to weigh the evidence

but is instead required to view the evidence in the light most favorable to the party opposing

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summary judgment, to draw all reasonable inferences in favor of that party, and to eschew
credibility assessments.? Weyant v. 0kst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to Show
a genuine dispute, the nonmoving party must provide ?hard evidence,? D?Amico v. City of New
ork, 132 .3d 145, 149 (2d Cir. 1998), ?from which a reasonable inference in [its] favor may be
drawn,? Binder Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (quoting R. B. Ventures,
Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)). ?Conclusory allegations, conjecture, and
speculation,? Kerzer v. Kingly Mfg. 156 F.3d 396, 400 (2d Cir. 1998), as well as the existence of
a mere ?scintilla of evidence in support of the [nonmoving party?s] position,? Anderson, 477 U.S.
at 252, are insuf?cient to create a genuinely disputed fact. A moving party is ?entitled to judgment
as a matter of law? on an issue if (1) it bears the burden of proof on the issue and the undisputed
facts meet that burden; or (2) the nonmoving party bears the burden of proof on the issue and the
moving party ?show[s] that is, point[s] out . . . that there is an absence of evidence [in the
record] to support the nonmoving party?s [position].? Celotex Corp. v. Garrett, 477 U.S. 317, 325
(1986) (internal quotation marks omitted).
DISCUSSION

A. Plaintiff? LMRDA Claim is Moot

As the Court has previously held (see Doc. No. 131 at 1, Doc. No. 150 at 2), the only remaining
question in this case is whether the October 16 document production has mooted Plaintiff?s
claim by providing Plaintiff with an entire copy of the 2015 Performance?Enhancing

Substances Policy (the The NFLPA maintains that the October 16 production provided

 

1 Plaintiff?s effort to relitigate the question of whether receiving the full Policy moots his claim by attempting to
distinguish Gonzalez v. Local 328.], No. 09-cv-8464 (SHS) (RLE), 2010 WL 3785436 (S.D.N.Y. Sept. 7, 2010), report
and recommendation adopted, 2010 WL 3785363 (S.D.N.Y. Sept. 28, 2010), and Mazza v. Dist. Council of N. Y., Nos.
cv?00-6854 (BMC) (CLP), cv?01-6002 (BMC) (CLP), 2007 WL 2668116 (E.D.N.Y. Sept. 6, 2007), is unavailing.
(See Johnson Br. at 13?14.) The factual distinctions to which Plaintiff points, including whether or not the plaintiff
requested a copy of the collective bargaining agreement prior to discovery and whether the CBA was
attached to the complaint, are irrelevant to the conclusion that obtaining the only possible relief in the case a copy

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Plaintiff with the entirety of the Policy within the meaning of the pointing to undisputed
facts and to declarations from the labor counsel, Stephen Saxon, and its Associate General
Counsel, Heather McPhee. (Doc. Nos. 135 at 3?6; Doc. No. 136; Doc. Nos. 138?139.) The production
included what the NFLPA terms ?a complete copy of the 2015 Policy,? as well as three additional
documents: an April 2013 letter memorializing an agreement between the NFLPA and the NFL
regarding medical record authorization forms for players; a May 2015 letter modifying the prior 2014
policy to provide that the duties of the Chief Forensic Toxicologist could be ful?lled by the
Directors of the UCLA Olympic Analytical Laboratory and the Sports Medicine Research and Testing
Laboratory; and, ?nally, ?[s]creen shots? of player certi?cations regarding drug testing. (Doc. No. 136
at The NFLPA asserts that it ?made certain that all documents relevant to the 2015 Policy were
included by erring on the side of over?inclusiveness.? (Doc. No. 136 at 2.) Furthermore, Mr. Saxon?s
declaration states that he is ?not aware of and do [es] not believe that there are any other documents
relating to the 2015 Policy that Mr. Johnson has not received that the NFLPA would be required to
produce? (Doc. No. 138 (?Saxon Decl.?) at 2), and Ms. McPhee?s declaration states that she is ?not
aware of and does not believe there were any oral agreements between the NFLPA and the NFL to
modify the 2015 Policy? (Doc. No. 139 (?McPhee Decl.?) at 1).

Plaintiff denies that the NF October 16 production represents the entire 2015 agreement
(Doc. No. 152 at 2), arguing that a material dispute of fact remains as to ?ve categories of documents:
(1) the Amendment? (Johnson Br. at (2) the ?Amendment Regarding the Number of
Arbitrators? (3) laboratory ?Policy Protocols and Procedures? (id. at (4) the ?Amendment to
the Two-Year Testing Period? at and, ?nally, (5) ?Other Unknown Modi?cations and
Amendments? to the policy (id. at 9). For the reasons stated below, each of these arguments fails to

establish a genuine issue of material fact with respect to the mootness of Plaintiff?s claim.

 

of the relevant CBA meets a claim under 104 of the LMRDA. Plaintiff points to no authority to the contrary.

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First, as to the CFT Amendment, Plaintiff argues that the production is insuf?cient because the
April 2013 letter states that it is a modi?cation to the 2014 Policy, not the 2015 Policy at issue in this
case. (Johnson Br. at 4.) Yet the plain language of the agreement states that it applies ?[u]ntil such
time as the Parties jointly select a new Chief Forensic Toxicologist.? (Doc. No. 113 Ex. 9 at 2.) Given
that the agreement unequivocally states that it applies on a going-forward basis, there is no merit to
Plaintiff?s contention that the NFLPA has failed to produce an agreement regarding the CFT that is
applicable to the 2015 Policy.

Next, Plaintiff argues that the NFLPA has failed to produce any document modifying the 2015
Policy?s requirement that three to five arbitrators be available to hear appeals. (Johnson Br. at 
Plaintiff maintains that statements made by the NFLPA before the US. District Court for the Northern
District of Ohio reference such modi?cations, and that the current position is inconsistent
with those past representations. (Id. at 5.) But as the Court previously determined, it took the NFL
and the NFLPA ?six months to choose the first arbitrator, three more months to agree upon a second,
and eighteen months more to select a third.? (Doc. No. 125 at 12.) While Plaintiff appeal took place
partway through this selection process at a time when only two arbitrators were available, Plaintiff
does not dispute that there are presently three arbitrators. (See Doc. No. 135 at 5.) Given that there
was ultimately no modi?cation of the three-to-?ve arbitrator requirement, Plaintiffs insistence that
the NFLPA is withholding a secret modi?cation to the policy constitutes mere conjecture that is
insuf?cient to create a material dispute of fact. See Kerzer, 156 F.3d at 400.

Plaintiff?s third argument is that the production is incomplete because it failed to
provide the laboratory testing protocols that are referenced in the Policy. (Johnson Br. at 6?8; see also
Doc. No. 39 (?First Amended Complaint? or Ex. 1 at 16 (stating that testing for prohibited
substances is ?conducted in accordance with the collection procedures and testing protocols of the

Policy and the protocols of the testing By its plain terms, Section 104 of the LMRDA

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applies only to ?collective bargaining agreements.? 29 U.S.C. 414. According to Plaintiff, the Policy
incorporated the laboratory protocols by reference and, therefore, they must be produced to Plaintiff
under the LMRDA. (Johnson Br. at 12.) Yet the documents Plaintiff seeks are laboratory documents,
not collectively-bargained agreements between the NFLPA and the NFL. Plaintiff?s reliance on the
US. Department of Labor?s Of?ce of Labor Management Standards Interpretive Manual,
which states that ?all agreements which are incorporated by reference into the basic working agreement
become a part of it,? is therefore misplaced. (Johnson Br. Ex. 5 110.300 (emphasis added)). The
failure to produce proprietary laboratory documents, as opposed to agreements
between itself and the NFL, cannot create a genuine dispute of material fact with respect to the
sufficiency of the production.

Plaintiff next contends that summaryjudgment is precluded by the failure to produce
a purported ?amendment? to the provision of the Policy that ?allows the NFL to conduct reasonable
cause testing for no more than two[] years.? (Johnson Br. at 8.) While the Court previously found that
there was no ?modi?cation? to the Policy with respect to the bargaining parties? interpretation of the
two-year testing period, the Court referred to the allegation that the NFLPA had never provided
Plaintiff with a ?side agreement relating to the bargaining parties? interpretation of the timeline for
reasonable cause testing? as one reason why Plaintiff?s LIVIRDA claim survived the motion
to dismiss. (Doc. No. 125 at 17.) However, in the wake of the October 16 production, no
genuine dispute of material fact remains with respect to this alleged side agreement. In the face of the
af?rmative representations that there exist no other as-yet-unproduced documents Within the
scope of the LMRDA and, speci?cally, that ?there is no . . . side agreement relating to the bargaining
parties? interpretation of the timeline for reasonable?cause testing? (Saxon Decl. at 2), Plaintiff offers
only speculation that such an agreement must exist because (1) ?the [P]olicy does not say [the Policy?s
Independent Administrator] Dr. Lombardo decides? how long a player remains in reasonable-cause

testing and (2) ?if Dr. Lombardo is responsible for applying and designating the reasonable-cause

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testing period, an agreement (oral or written) should exist reflecting this responsibility.? (Johnson Br.
at 8.) Yet the Policy does state that it ?will be directed by the Independent Administrator? who ?shall
have the sole discretion to make determinations, consistent with the terms of th[e] Policy? concerning
numerous subject areas, including the decision to place players in the reasonable cause testing program.
(FAC Ex. 1 2.1, 3.1.) Furthermore, the Arbitral Award, which has been con?rmed by the Court
and is thus binding on the parties, found that Dr. Lombardo had the discretion to interpret the Policy
regarding the permissible time period for reasonable cause testing. (See FAC Ex. 2 111 6.15, 6.19.) In
light of the declarations submitted by the NFLPA, the Policy?s express authorization, and the
arbitrator?s ?nding, the Court concludes that Plaintiff has not raised a genuine dispute of material fact
with respect to this aspect of the document production.

Finally, Plaintiff deploys the catch-all argument that summaly judgment is inappropriate
because, ?[a]bsent discovery, it is impossible to know if there are other modi?cations and amendments
to the Policy that the NFLPA has not provided.? (Johnson Br. at 9.) The Court is unpersuaded. The
LMRDA cannot be used as a license for a ?shing expedition when Plaintiff can offer nothing beyond
mere conjecture to suggest that there is any part of the Policy that has not yet been produced. Plaintiff? 
reliance on Leavey v. International Brotherhood of Teamsters Theatrical Teamsters Local Union N0.
817, No. 13-cv-0705 (NSR), 2015 WL 5802901 (S.D.N.Y. Oct. 5, 2015) is accordingly misplaced. In
that case, the plaintiff identi?ed speci?c collectively-bargained agreements that he had requested and
that he alleged had not yet been produced to him. Id. at Here, by contrast, Plaintiff points only to
non?collectively?bargained documents that do not come within the scope of the LMRDA and
speculates as to the existence of additional modi?cations and documents relating to the Policy. In its
ruling on Plaintiff?s 56(d) motion, the Court already declined to indulge Plaintiff? attempt to use the
surviving LMRDA claim as a way to obtain the wide-ranging discovery that was foreclosed when the
Court granted the NF motion to dismiss Plaintiff?s dutyof fair representation claims. (Doc. No.

150 at The Court declines to reconsider that decision here.

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Thus, each of Plaintiff?s contentions with respect to the October 16 document production fails
to demonstrate a genuine dispute of material fact. In light of the evidence set forth by the NFLPA and
the undisputed facts before the Court, summary judgment in favor of the NFLPA is therefore warranted
as to Plaintiff?s claim under Section 104 of the LMRDA.2

B. Plaintiff Has No Surviving Retaliation? Claim

The Court is likewise unpersuaded by Plaintiff?s attempt to, once again, recast his claim under
LMRDA Section 104, 29 U.S.C. 414, as a standalone claim for retaliation for exercising his rights
under the LMRDA. Plaintiff?s First Amended Complaint invokes solely Section 104 of the LMRDA,
pertaining to a union?s provision of collective bargaining agreements to members, and does not
reference any of the LMRDA sections relating to retaliation. (See FAC 11 25.) The First Amended
Complaint?s single threadbare and conclusory factual allegation that the alleged failure to
provide documents was somehow a retaliatory act (see PAC 1[ 314) fails to satisfy the basic requirement
that a pleading ?give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests,? Bell All. Corp. Twombiy, 550 US 544, 555 (2007) (internal quotation marks and citation
omitted). Accordingly, the Court has already rejected Plaintiff? ?misrepresent[ation] of the scope of
[Plaintiffs] surviving LMRDA claim,? clarifying that any ?claims against the NFLPA for
?disciplin[ing] or retaliat[ing] against Johnson for asserting his rights under the were
dismissed by this Court as part of Johnson?s duty of fair representation claim.? (Doc. No. 150 at 2
(?rst quoting Doc. No. 141 then citing Doc. No. 125 at 

But even if Plaintiff had pleaded a freestanding LMRDA retaliation claim, it plainly could not
withstand a motion to dismiss. Plaintiff now invokes his free speech rights under Section 102 of the

LMRDA, 29 U.S.C. 411 et seq. as the basis for his retaliation claim and acknowledges that he must

 

2 Because the Court grants summary judgment on the grounds that the October 16 document production
mooted Plaintiff?s LMRDA claim, the Court does not reach the alternative argument that Plaintiff lacks
standing with respect to his LMRDA claim.

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establish that his conduct constituted ?free speech? under the (2) that the speech was a
cause of the Union taking action against him; and (3) damages.? Leavey, 2015 WL 5802901, at 
Johnson Br. at 19?20. Yet the very case Plaintiff cites provides that ?free speech within the meaning
of the LMRDA is speech made in the context of the union democratic process, i.e. political speech
primarily addressed to other union members, rather than free speech at large.? Leavey, 2015 WL
5802901, at *9 (internal quotation marks and citation omitted) (collecting cases). Plaintiff, meanwhile,
has pleaded nothing of the sort; his allegations reference only his media statements to the public at
large. (See FAC 1111 123?126 (describing Plaintiffs statements to the media as instigating ?[t]he
Public Dispute with Johnson?); see also Doc. No. 151 Ex. 1 (?Johnson Decl.?) at 1 
publicly questioned the representation the provided me . . . Because the Court ?nds that
Plaintiff did not plead an LMRDA retaliation claim and that the First Amended Complaint?s allegations
with respect to retaliation were already dismissed in the Court?s October 3, 2018 opinion, the Court
need not enter summaryjudgment on that claim. However, for the reasons stated above, the purported
claim is clearly nonviable and cannot be the basis for ongoing litigation and discovery in this case.3
IV. CONCLUSION

For the foregoing reasons, the motion for summary judgment is GRANTED. The
Clerk of Court is respectfully directed to terminate the motion pending at Doc. No. 134 and to close
this case.

SO ORDERED.

Dated: August 2, 2019
New York, New York

 

 

RI ARD J. SULLIVAN
UNITED STATES CIRCUIT JUDGE
Sitting by Designation

 

3 Because the Court grants summary judgment in favor of the NFLPA with respect to the lone surviving claim in the
case, the Court does not reach Plaintiff?s argument that he preserved his right to demand ajury trial.

9