19-2734-cv United States Court of Appeals for the Second Circuit DAVID LANE JOHNSON, Plaintiff-Appellant, – v. – NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, NATIONAL FOOTBALL LEAGUE, NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL, Defendants-Appellees. –––––––––––––––––––––––––––––– ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF AND SPECIAL APPENDIX FOR PLAINTIFF-APPELLANT STEPHEN S. ZASHIN ZASHIN & RICH CO., L.P.A. Attorney for Plaintiff-Appellant David Lane Johnson 950 Main Avenue, 4th Floor Cleveland, Ohio 44113 (216) 696-4441 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1 STATEMENT OF THE CASE .................................................................................. 2 I. PROCEDURAL HISTORY ............................................................................ 2 II. FACTS RELEVANT TO THE ISSUES PRESENTED ................................. 3 A. The Parties .................................................................................................. 3 B. The Collective Bargaining Agreement at Issue.......................................... 3 C. Johnson’s Discipline under the Policy and Related Arbitration ................ 4 D. Johnson Repeatedly Requests the Complete Policy ................................... 4 SUMMARY OF THE ARGUMENT ........................................................................ 5 ARGUMENT ............................................................................................................. 9 I. THE DISTRICT COURT IMPROPERLY GRANTED SUMMARY JUDGMENT IN THE NFLPA’S FAVOR ................................ 9 A. The NFLPA Has Not Provided Johnson the Complete Policy ................ 10 1. Amendment Regarding the Number of Arbitrators ............................... 10 2. The Missing Policy Protocols and Procedures ..................................... 12 3. The Chief Forensic Toxicologist (“CFT”) Amendment ........................ 14 4. Amendment to the Two-Year Testing Period ......................................... 15 B. These Modifications, Procedures, and Policies are Part of the Policy, and the NFLPA Must Provide Them to Johnson ......................... 16 C. The Declarations Submitted by the NFLPA Do Not Establish that the NFLPA Produced the Complete Policy, and Johnson Can Challenge the Declarants .................................................................. 19 II. THE DISTRICT COURT IMPROPERLY DENIED JOHNSON’S REPEATED REQUESTS FOR DISCOVERY ............................................. 20 III. THE DISTRICT COURT IMPROPERLY LIMITED JOHNSON’S DAMAGES FOR THE NFLPA’S VIOLATION OF THE LMRDA TO HIS BELATED RECEIPT OF THE POLICY ....................................... 23 IV. THE DISTRICT COURT IMPROPERLY DISMISSED JOHNSON’S BREACH OF THE DUTY OF FAIR REPRESENTATION CLAIMS AGAINST THE NFLPA ........................... 27 IV. THE DISTRICT COURT IMPROPERLY DISMISSED JOHNSON’S BREACH OF CONTRACT CLAIMS AGAINST THE NFL ....................................................................................................... 29 V. THE DISTRICT COURT IMPROPERLY DENIED JOHNSON’S MOTION TO VACATE ................................................................................ 29 CONCLUSION ........................................................................................................ 31 CERTIFICATE OF COMPLIANCE ....................................................................... 32 -ii- TABLE OF AUTHORITIES Cases Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946)...................................................... 19 Berg v. Watson, 417 F. Supp. 806 (S.D.N.Y. 1976) ................................................ 26 Catskill Mts. Chptr. of Trout Unlimited, Inc. v. U.S. EPA, 846 F.3d 492 (2d Cir. 2017) ...................................................................................................... 16 Colby v. Klune, 178 F.2d 872 (2d Cir. 1949)........................................................... 19 Crye Precision v. Duro Textiles, LLC, 689 Fed. Appx. 104 (2d Cir. 2017)...... 10, 21 Gonzalez v. Local 32BJ, No. 09 Civ. 8464 (SHS) (RLE), 2010 U.S. Dist. LEXIS 102971 (S.D.N.Y. Sept. 7, 2010) .....................................................24, 25 Gualandi v. Adams, 385 F.3d 236 (2d Cir. 2004).................................................... 20 Hall v. Cole, 412 U.S. 1 (1973) ............................................................................... 26 Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94 (2d Cir. 2000)................ 20 Hodges v. Virgin Atlantic Airways, Ltd., 714 F. Supp. 75 (S.D.N.Y. 1988) ................................................................................................................... 26 Johnson v. NFL Players Ass’n, No. 17-cv-5131(RJS), 2018 U.S. Dist. LEXIS 225346 (S.D.N.Y. Oct. 3, 2018)............................................................... 3 Johnson v. NFL Players Ass'n, No. 17-cv-5131 (RJS), 2018 U.S. Dist. LEXIS 200646, *1 (S.D.N.Y. Nov. 26, 2018) ..................................................... 3 Johnson v. NFL Players Ass'n, No. 17-cv-5131 (RJS), 2019 U.S. Dist. LEXIS 129500 (S.D.N.Y. Aug. 2, 2019) ............................................................. 3 Leavey v. Int’ Bhd. of Teamsters-Theatrical Teamsters Local Union No. 817, No. 13-cv-0705 (NSR), 204 L.R.R.M. 3420, 2015 U.S. Dist. LEXIS 135509 (S.D.N.Y. Oct. 5, 2015).......................................................18, 19 -iii- Local Union No. 38, Sheet Metal Workers' Int'l Ass'n v. Pelella, 350 F.3d 73 (2d Cir. 2003) ................................................................................................. 26 Mazza v. Dist. Council of N.Y., No. CV-00-6854 (BMC) (CLP), No. CV-01-6002 (BMC) (CLP), 2007 U.S. Dist. LEXIS 65965 (E.D.N.Y. Sept. 5, 2007) ................................................................................................24, 25 Molina v. Union Independiente Autentica de la AAA, 555 F. Supp.2d 284 (D.P.R. 2008) ...................................................................................................... 16 National Life Ins. Co. v. Solomon, 529 F.2d 59 (2d Cir. 1975) ............................... 10 Quinn v. Di Giulian, 739 F.2d 637 (D.C. Cir. 1984) ............................................... 26 Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980) ................................................................................................................... 20 Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, etc., 749 F.2d 1000 (2d Cir. 1984) ............................................................................. 26 Rupcich v. UFCW, Local 881, 833 F.3d 847 (7th Cir. 2016) .................................. 29 Salazar v. King, 822 F.3d 61 (2d Cir. 2016)............................................................ 27 Scandinavian Reins. Co. v. St. Paul Fire & Marine Ins. Co., 668 F.3d 60 (2d Cir. 2012) ...................................................................................................... 29 Smith v. American Federation of Musicians, No. 68 CIV 2937, 80 L.R.R.M. 3063, 1972 U.S. Dist. LEXIS 13898 (S.D.N.Y. May 4, 1972) ................................................................................................................... 30 Sousa v. Marquez, 702 F.3d 124 (2d Cir. 2012) ...................................................... 10 Vaughn v. Air Line Pilots, Ass'n, Int'l, 604 F.3d 703 (2d Cir. 2010)....................... 27 -iv- Statutes 29 U.S.C. § 401 ........................................................................................................24 29 U.S.C. § 412 ........................................................................................................26 29 U.S.C. § 414 ................................................................................................... 9, 17 Other Authorities Caravan Knight, 362 NLRB 196 (Aug. 27, 2015) .................................................. 28 Carpenters Local 35, 317 NLRB 18 (1995) ............................................................ 28 Letter Carriers Local 3825, 333 NLRB 343 (2001)................................................ 28 Nat’l Assoc. of Letter Carriers, 328 NLRB 952 (1999) .......................................... 28 Sam C. Ehrlich, A More Perfect (NFL Players) Union: Secret “Side Deals,” the NFLPA, and the Duty of Fair Representation, 44 Ohio N.U.L. Rev. 33 (2018) ........................................................................................ 29 U.S. Dept. of Labor Office of Labor-Management Standards Interpretative Manual .......................................................................................... 16 USPS, 362 NLRB 103 (May 29, 2015) ................................................................... 28 Teamsters Union No. 200, 357 NLRB 1844 (2011) ................................................ 28 -v- JURISDICTIONAL STATEMENT Appellant David Lane Johnson (“Johnson”) filed this action on January 6, 2017 seeking to vacate an adverse arbitration award under Section 301 of the Labor Management Relations Act (“LMRA”) and the Federal Arbitration Act. Under the LMRA and Section 8(b) of the National Labor Relations Act (“NLRA”), Johnson filed breach of the duty of fair representation claims against Appellee the National Football League Players Association (“NFLPA”). Also under the LMRA, Johnson asserted breach of contract claims against Appellees the National Football League Management Council (“NFLMC”) and the National Football League (together the “NFL”). Johnson filed additional claims against the NFLPA under the Labor-Management Reporting and Disclosure Act (“LMRDA”). Finally, Johnson requested a declaratory judgment under 28 U.S.C. § 2201. The District Court had subject-matter jurisdiction over Johnson’s claims pursuant to 28 U.S.C. § 1331. On August 5, 2019, the District Court issued its final judgment granting the NFLPA’s motion for summary judgment and closing the case. On August 29, 2019, Johnson timely filed his Notice of Appeal. This Court has jurisdiction over Johnson’s appeal pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. Whether the District Court improperly granted summary judgment in favor of the NFLPA on Johnson’s claim under Section 104 of the LMRDA. II. Whether the District Court improperly denied Johnson’s requests for discovery, including under Federal Rule of Civil Procedure 56(d). III. Whether the District Court improperly mooted Johnson’s LMRDA Section 104 claim when the NFLPA purportedly provided Johnson a complete copy of the collective bargaining agreement governing his employment and improperly limited damages available to Johnson for the NFLPA’s violation of Section 104 to his belated receipt of the collective bargaining agreement. IV. Whether the District Court improperly dismissed Johnson’ breach of the duty of fair representation claims against the NFLPA. V. Whether the District Court, relying on its dismissal of Johnson’s duty of fair representation claims against the NFLPA, improperly dismissed Johnson’s breach of contract claims against the NFL. VI. Whether the District Court improperly denied Johnson’s motion to vacate the flawed arbitration award. STATEMENT OF THE CASE I. PROCEDURAL HISTORY Johnson presents for review the following rulings of the U.S. District Court for the S.D.N.Y. (“District Court”) by the Honorable Richard J. Sullivan:  SPA-1– Order denying Johnson’s motion to vacate the adverse arbitration award, granting the NFLPA’s motion to dismiss Johnson’s breach of the duty of fair representation claims and declaratory -2- judgment claim, and denying the NFLPA’s motion to dismiss Johnson’s claim under Section 104 of the LMRDA;  SPA-2-23 – Memorandum and Order related to SPA-1 (Johnson v. NFL Players Ass’n, No. 17-cv-5131(RJS), 2018 U.S. Dist. LEXIS 225346 (S.D.N.Y. Oct. 3, 2018));  SPA-24-25 – Order finding that “discovery is not appropriate”;  SPA-26-28 – Order granting the NFL’s motion to dismiss Johnson’s breach of contract claims and declaratory judgment claim (Johnson v. NFL Players Ass'n, No. 17-cv-5131 (RJS), 2018 U.S. Dist. LEXIS 200646, *1 (S.D.N.Y. Nov. 26, 2018));  SPA-29-31 – Order denying Johnson’s motion for discovery pursuant to Federal Rule of Civil Procedure 56(d);  SPA-32-40 – Opinion and Order granting the NFLPA’s Motion for Summary Judgment (Johnson v. NFL Players Ass'n, No. 17-cv-5131 (RJS), 2019 U.S. Dist. LEXIS 129500 (S.D.N.Y. Aug. 2, 2019)); and  SPA-41 – Judgment related to Opinion and Order granting the NFLPA’s Motion for Summary Judgment (SPA-32-40). II. FACTS RELEVANT TO THE ISSUES PRESENTED A. The Parties Johnson is a professional football player for the Philadelphia Eagles. (A-25 at ¶ 1.) The NFLPA is the union for players in the National Football League. (A25 at ¶ 2.) The NFLMC is the entity responsible for collectively bargaining with the NFLPA on behalf of the 32 National Football League teams. (A-25 at ¶ 4.) B. The Collective Bargaining Agreement at Issue The NFLPA and NFLMC collectively bargained the National Football -3- League Policy on Performance-Enhancing Substances 2015 (the “Policy”). (A-81133.) The Policy governed the manner in which the NFL could test Johnson for prohibited substances, discipline him for Policy violations, and the arbitration process by which he could appeal Policy discipline. (A-81-133.) The Policy includes specific protections and procedural safeguards for the players and promises “transparency” and a “fair system of adjudication.” (A-84.) C. Johnson’s Discipline under the Policy and Related Arbitration In mid-2016, Johnson received notice that he tested positive for a prohibited substance and would be disciplined. (A-39 at ¶ 56.) Johnson appealed, and his discipline arbitration was held on October 4, 2016. (A-39 at ¶¶ 57, 60.) On October 11, 2016, conflicted arbitrator James Carter issued an award upholding Johnson’s discipline, which resulted in a ten-game suspension and other adverse consequences. (A-40 at ¶ 67; A-134-146.) D. Johnson Repeatedly Requests the Complete Policy So Johnson could fully understand his contractual rights, prior to and throughout his discipline arbitration, Johnson requested from the NFLPA the complete Policy, including all of its modifications, amendments, deviations, and documents incorporated therein. (A-391-392 at ¶¶ 3-4, 7.) Johnson reiterated these requests through this litigation. -4- SUMMARY OF THE ARGUMENT Johnson focuses on his first three assignments of error, which relate to Johnson’s claim that the NFLPA failed to provide him the complete collectively bargained Policy in violation of LMRDA Section 104. Johnson’s first assignment of error arises from the District Court’s improper grant of summary judgment to the NFLPA on Johnson’s Section 104 claim. From the time Johnson received notice of expected discipline in mid-2016, Appellees undisputedly denied him information he should have received. Section 104 required the NFLPA to provide Johnson the complete collectively bargained Policy upon his request, including all amendments (verbal or written) and documents referenced by and incorporated into the Policy. The NFLPA claims it provided Johnson the complete Policy on October 16, 2018 -- more than two years after Johnson requested it to prepare for his arbitration and almost two years after Johnson filed this lawsuit. In making this claim, the NFLPA admitted it violated LMRDA Section 104. Whether the NFLPA’s October 16, 2018 production constitutes the complete Policy remains a genuine issue of material fact and key to Johnson’s defense in the arbitration. Despite multiple requests, Johnson received no discovery in the underlying case. Even without the benefit of discovery, Johnson identified NFLPA-approved and implemented Policy modifications, amendments, and deviations to the Policy -5- that the NFLPA never produced and still has not produced to him. For example, the NFLPA previously told the U.S. District Court for the Northern District of Ohio that an amendment to the number of arbitrators required under the Policy existed, but Johnson has never received this “amendment.” Johnson also never received documents referenced in and incorporated into the Policy governing specimen testing and storage protocols. In improperly granting the NFLPA’s motion for summary judgment, the District Court disregarded these omissions. The NFLPA’s admitted violation of LMRDA Section 104 and the genuine issues of material fact regarding the completeness of the documents the NFLPA untimely produced to Johnson provide the foundation for Johnson’s remaining assignments of error. After the NFLPA filed its motion for summary judgment, under Civil Rule 56(d), Johnson sought discovery concerning the Policy documents detailed above. The District Court, in an abuse of its discretion, considered this discovery “not related to his remaining [LMRDA] claim”. (SPA-30.) Whether the NFLPA produced the entirety of the collectively bargained Policy to Johnson goes to the heart of Johnson’s Section 104 claim. That the District Court considered Johnson’s requested discovery “unrelated” to his claim and subsequently granted summary judgment absent this discovery defies explanation. Equally inexplicable is the District Court’s conclusion that the NFLPA -6- mooted Johnson’s Section 104 claim by providing him what the NFLPA “believed” to constitute the complete Policy more than two years after Johnson requested it to use in his discipline arbitration. Johnson filed his Section 104 claim under LMRDA Section 102, the LMRDA’s civil enforcement provision. Damages under Section 102 include compensatory damages, punitive damages, and attorneys’ fees and costs -- far more than just Johnson’s belated receipt of what the NFLPA “believed” was a complete copy of the collectively bargained Policy. If the District Court can limit Johnson’s Section 102 damages to his receipt of the Policy two years after he requested it, then unions could rely on this case to refuse a member’s request to provide a collective bargaining agreement without fear of any penalty. Any union could force a member to work in ignorance of the terms governing the member’s employment or to go through an arbitration without knowledge of the agreement’s terms, which is precisely what occurred here. Under the District Court’s logic, a member would have to file a federal lawsuit and incur vast expenses simply to obtain the at-issue collective bargaining agreement. The District Court further concluded that a union’s claim that it “believed” it provided the entire agreement is beyond reproach and that the union’s delay of more than two years in meeting its LMRDA and representational obligations costs it nothing. Such conclusions encourage union misconduct, which is contrary to the LMRDA’s central purpose. -7- In an incongruous decision, the District Court found that the NFLPA violated Section 104 -- a federal law meant to protect union members -- but did not violate its duty of fair representation (“DFR”). Next, the District Court granted the NFL’s motion to dismiss under Civil Rule 12(c) based solely on its prior improper dismissal of Johnson’s breach of the DFR claims against the NFLPA. Since the District Court improperly dismissed these claims against the NFLPA, its decision to dismiss claims against the NFL also was improper. The District Court’s flawed decisions regarding the NFLPA’s LMRDA violation, the denial of critical discovery, the NFLPA’s DFR breaches, and related NFL breaches of contract serve as the foundation of the District Court’s improper denial of Johnson’s motion to vacate his arbitration award. In short, Johnson could never have a fair arbitration without the complete Policy under which the NFL disciplined him. This Court should reverse the District Court’s grant of summary judgment, permit Johnson to conduct discovery, require the NFLPA to answer Johnson’s Amended Complaint, and reverse the District Court’s orders granting, in part, the NFLPA’s motion to dismiss, granting the NFL’s motion to dismiss under Civil Rule 12(c), and denying Johnson’s motion to vacate. -8- ARGUMENT I. THE DISTRICT COURT IMPROPERLY GRANTED SUMMARY JUDGMENT IN THE NFLPA’S FAVOR Section 104 of the LMRDA requires unions: to forward a copy of each collective bargaining agreement made by such labor organization with any employer to any employee who requests such a copy and whose rights as such employee are directly affected by such agreement. 29 U.S.C. § 414. Central to Johnson’s LMRDA claim is whether the NFLPA has ever provided him the complete collectively bargained Policy. Before the NFLPA filed its motion for summary judgment, and without allowing Johnson any discovery, the District Court made the factual determination that on October 16, 2018 the NFLPA provided Johnson the complete Policy. (SPA-24; SPA-29.) The District Court then recast Johnson’s Section 104 claim as turning not on the actual question of whether the NFLPA had produced the complete Policy to Johnson but “on the question of whether the NFLPA’s October 16 document production ha[d] mooted [Johnson’s] claim.” (SPA-24; SPA-30.) Having incorrectly and prematurely decided that the NFLPA provided Johnson the complete Policy, the District Court granted the NFLPA’s motion for summary judgment. (SPA-32-41.) This Court reviews the District Court’s summary judgment ruling de novo “with the view that summary judgment is appropriate only ‘if the movant shows that there is no genuine dispute as to any -9- material fact and the movant is entitled to judgment as a matter of law.’” Crye Precision v. Duro Textiles, LLC, 689 Fed. Appx. 104, 106 (2d Cir. 2017) (citing Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012)). Summary judgment is a “drastic measure” where the nonmoving party has not had opportunity for pretrial discovery. National Life Ins. Co. v. Solomon, 529 F.2d 59, 61 (2d Cir. 1975). A. The NFLPA Has Not Provided Johnson the Complete Policy Johnson repeatedly requested the complete Policy both before his arbitration and throughout this litigation. (A-391-392 at ¶ 3.) The NFLPA claims that, more than two years after Johnson’s arbitration, “on October 16, 2018, [it] produced to Johnson a complete copy of the 2015 Policy and all agreements thereunder (including side letters and modifications to the 2015 Policy).” NFLPA’s Memorandum of Law in Support of Its Motion for Summary Judgment (“NFLPA Memorandum”) (Doc. No. 135) at 3. The following are Policy amendments/deviations/modifications and documents referenced and incorporated into the Policy that the NFLPA has never provided Johnson, each of which forecloses summary judgment: 1. Amendment Regarding the Number of Arbitrators The Policy requires three to five arbitrators for appeals who are not affiliated with the NFL or NFLPA. (A-95-96.) At the time of Johnson’s arbitration, only -10- two arbitrators existed, and Johnson has never received a modification permitting only two arbitrators. (A-53 at ¶ 146; A-392 at ¶ 4.) The Policy’s sister policy -- the Policy and Program on Substances of Abuse -- also includes the identical three to five unaffiliated arbitrator requirement. (A237.) When attempting to explain why the Policy and Program on Substances of Abuse only had two arbitrators, the NFLPA’s counsel explained to the District Court for the Northern District of Ohio that: The parties to the CBA—the NFL and the NFLPA—mutually consented to modify their agreement and not appoint a third arbitrator because there are simply not enough appeal hearings under the Policy to justify having three arbitrators in rotation. (A-405 (emphasis added).) The NFLPA further explained to the District Court for the Northern District of Ohio that “there is no ‘requirement’ under the Policy to have three arbitrators because the NFL and NFLPA mutually consented—as is their right—to modify their agreement.” (A-409.) During that same case, the NFLPA stated that, as of December 2016, the modification allowing for only two arbitrators had applied to the Policy and Program on Substances of Abuse and the Policy at issue in this case “for a couple of years”. (A-417-419 at 12:6-14:20.) Despite its prior admission to another United States District Court that a modification existed, the NFLPA has never produced anything to Johnson concerning the modification allowing only two arbitrators. (A-392 at ¶ 4.) Instead and inconsistent with its prior statements to the U.S. District Court for the Northern -11- District of Ohio, the NFLPA told the District Court “[t]here is no other agreement on this subject to produce.” NFLPA Memorandum (Doc. No. 135) at 9. Further creating a genuine issue of material fact, during Johnson’s underlying arbitration, NFL in-house attorney Kevin Manara admitted that “the bargaining parties agreed on their own to hire two arbitrators, instead of three” and that the parties came “up with other agreements.” (A-227 at 18:25-19:15 (emphasis added).) Mr. Manara went on to admit, “Arbitrator Carter, parties to a collective bargaining agreement come up with agreements all the time, and in this instance, as you know, we agreed that we would hire two arbitrators.” (A-227 at 20:12-16.) Mr. Manara’s statements and the NFLPA’s prior statements to the U.S. District Court for the Northern District of Ohio conflict with the NFLPA’s current, sworn position that no modification exists, including conclusory statements by its outside counsel Stephen Saxon (“Saxon”) that he did not “believe” such an amendment exists. (A-382-383 at ¶ 5.) These conflicting statements create a genuine issue of material fact as to whether the NFLPA has, in fact, provided Johnson the complete collectively bargained Policy, which precluded summary judgment (and warranted discovery). 2. The Missing Policy Protocols and Procedures The Policy expressly requires that testing for prohibited substances occur “in accordance with the collection procedures and testing protocols of the Policy and -12- the protocols of the testing laboratory (herein collectively ‘the Collection Procedures’).” (A-98.) The Policy further requires that the bargaining parties -the NFLPA and the NFLMC -- annually review and approve the testing protocols. (A-86 (the collection protocols “shall be reviewed and approved annually by the Parties…and may not be changed without approval of both Parties”).) The Policy also includes, “procedures for handling of NFL Player specimens following laboratory analysis, which shall be subject to approval by the Parties.” (A-102.) The NFLPA does not dispute Johnson requested the Collection Procedures, including the collection protocols and specimen handling procedures, which are part of the Policy. The NFLPA should have copies of these negotiated policies and procedures, given its obligation to approve them. Undisputedly, the NFLPA has never provided them to Johnson. (A-391-392 at ¶¶ 3-4.) In an email to Johnson, the NFL also admitted the Policy “protocols” exist and were withheld from Johnson. (A-428 (“Had Mr. Johnson’s specimen tested positive for substances other than [REDACTED] the corresponding protocols would have been included” in what was produced) (emphasis added).) The NFLPA received this email and never refuted the withheld protocols’ existence. (A-428.) The Policy references and incorporates all the protocols, not just those applicable to the substance for which Johnson allegedly tested positive. Johnson -13- requested all protocols, and the NFLPA has never produced them. (A-391-392 at ¶¶ 3-5.) The NFLPA’s October 16, 2018 production likewise failed to include the protocols referenced in and incorporated into the Policy and provided no reason for the omission. (A-273-381.) These undisputed facts precluded summary judgment (and warranted discovery). 3. The Chief Forensic Toxicologist (“CFT”) Amendment The Policy requires that a neutral CFT “review and certify laboratory results”, among other key duties critical to ensuring the accuracy of testing done under the Policy. (A-85-86.) The 2015 Policy, applicable here, identifies Dr. Bryan Finkle as the CFT. (A-109.) However, Dr. Finkle did not perform the CFT duties for Johnson’s testing. (A-45 at ¶¶ 95-99.) As an explanation for this plain Policy modification, the NFLPA referenced a letter amending the 2014 policy -- not the relevant 2015 Policy -- regarding the CFT. See NFLPA Memorandum (Doc. No. 135) at 3. The amendment reads, “[t]his letter reflects our agreement to modify the 2014 Policy…” (A-351-352 (emphasis added).) A factual dispute exists as to how an amendment to the 2014 policy applied to the 2015 Policy applicable here, particularly given that the NFLMC and the NFLPA did not incorporate the 2014 amendment into the later published 2015 Policy but did incorporate this amendment into the 2016 policy. -14- (Compare A-403 (2016 policy) and A-109 (2015 Policy at issue here.) This conflict precluded summary judgment (and warranted discovery). 4. Amendment to the Two-Year Testing Period The Policy plainly allows the NFL to conduct reasonable cause testing for two-years (A-88), but Johnson received reasonable cause testing for more than two years (A-41-42 at ¶¶ 69-80). In its Order denying the NFLPA’s motion to dismiss Johnson’s LMRDA Section 104 claim, the District Court, likely recognizing this irregularity, noted that “the NFLPA has still not produced a copy of the side agreement relating to the bargaining parties’ interpretation of the timeline for reasonable-cause testing.” (SPA-18.) The arbitrator assigned to Johnson’s arbitration also recognized that the NFLPA and NFL agreed how the two-year reasonable cause period “was to be applied in practice”. (A-139 at ¶ 6.15.) On the day of Johnson’s arbitration, the NFLPA also told Johnson that an agreement/modification to the reasonable cause testing period existed, but the NFLPA has never provided this agreement to Johnson. (A-393 at ¶ 11.) Despite the NFLPA’s statement to Johnson and both the District Court and the arbitrator finding that a side agreement modifying the Policy’s reasonable cause testing period existed, the NFLPA admitted it has not produced the side agreement and stated no such side agreement exists. (A-383 at ¶ 5.) These conflicting statements and findings precluded summary judgment (and warranted discovery). -15- B. These Modifications, Procedures, and Policies are Part of the Policy, and the NFLPA Must Provide Them to Johnson The U.S. Department of Labor’s Office of Labor-Management Standards (“OLMS”) administers and enforces LMRDA Section 104. The Court should defer to OLMS’ reasonable interpretations of Section 104, as set forth in its Interpretative Manual. See Molina v. Union Independiente Autentica de la AAA, 555 F. Supp.2d 284, 288 (D.P.R. 2008) (“judicial deference applies to the guidelines that the Labor Department’s Office of Labor-Management Enforcement has developed and set out in…its Interpretive Manual”); see also Catskill Mts. Chptr. of Trout Unlimited, Inc. v. U.S. EPA, 846 F.3d 492, 507 (2d Cir. 2017) (where an agency’s interpretation of a statute is reasonable, the agency’s interpretation is entitled to Chevron deference). Per the OLMS Interpretive Manual, a collective bargaining agreement includes all side letters, amendments, modifications, etc. (A-426 at § 110.300 (“any subsequent agreement or amendment, oral or written, which modifies the basic agreement becomes a part of the collective bargaining agreement”).) Section 104 applies equally to written and oral agreements. (A-426 at § 110.305.) As to oral amendments to an agreement, the union is required to maintain “a written statement of all terms arrived at orally” that it can provide a member upon request. (A-426 at § 110.305.) -16- Undisputedly, only two Policy arbitrators existed at the time of Johnson’s arbitration. Moreover, the NFLPA previously and inconsistently told another federal court that the NFLPA and NFL agreed to modify the Policy to allow only two arbitrators, and an NFL attorney said the exact same. Yet, the NFLPA has never provided Johnson with this modification. (A-392 at ¶ 4.) The NFLPA also has never provided Johnson any amendment to the 2015 Policy regarding the CFT or to the timeline for reasonable cause testing. (A-392 at ¶ 4.) To the extent any of these modifications are oral, the NFLPA has not provided Johnson a written statement of the terms arrived at orally (A-392 at ¶ 4), as LMRDA Section 104 requires (A-426 at § 110.305). Documents referenced and incorporated into a collective bargaining agreement also become part of the agreement and a union must produce them upon a member’s request. See A-426 at § 110.300; 29 U.S.C. § 414. The Policy’s Collection Procedures, including all protocols and procedures, are part of the Policy as evidenced by the requirement that the NFLPA approve them annually. (A-86, A-98, A-102.) Despite repeated requests, the NFLPA has never provided these documents to Johnson. (A-391-392 at ¶¶ 3-4.) In addition to the material facts in dispute above, Johnson contests that he has received the complete Policy. (A-391-392 at ¶¶ 3-5.) Whether the NFLPA provided Johnson the complete Policy is the ultimate fact relevant to Johnson’s -17- LMRDA Section 104 claim. Where, like here, the plaintiff attests that he has not received the collective bargaining agreement, summary judgment is improper. See Leavey v. Int’ Bhd. of Teamsters-Theatrical Teamsters Local Union No. 817, No. 13-cv-0705 (NSR), 204 L.R.R.M. 3420, 2015 U.S. Dist. LEXIS 135509, *16-17 (S.D.N.Y. Oct. 5, 2015). In Leavey, the plaintiff testified he did not receive a copy of the collective bargaining agreement, and the union could not “definitively establish” that he had. Id. at *17. Based on plaintiff’s testimony, the court denied the union’s request for summary judgment on the plaintiff’s LMRDA Section 104 claim. Id. Here, neither NFLPA attorney Heather McPhee (“McPhee”) nor the NFLPA’s outside counsel Saxon definitively stated the NFLPA produced the entire Policy to Johnson. To the contrary, Saxon states that he “believe[s]” the NFLPA has done so (A-382-383 at ¶¶ 4-5), and McPhee only states she does not “believe” there are any oral amendments to the Policy (A-384). These statements hardly establish the NFLPA provided Johnson the entire Policy. Johnson also disagrees with McPhee and Saxon and has produced evidence (even without the benefit of discovery) that the NFLPA has not provided him the complete Policy, as defined under the LMRDA. (A-391-393 at ¶¶ 3-5, 11.) The above evidence alone required the denial of the NFLPA’s summary judgment -18- motion. This Court also should reverse the District Court’s summary judgment ruling based on the reasoning in Leavey. C. The Declarations Submitted by the NFLPA Do Not Establish that the NFLPA Produced the Complete Policy, and Johnson Can Challenge the Declarants In granting summary judgment to the NFLPA, the District Court made an improper and untenable credibility determination. Specifically, the District Court determined the declarations submitted by the NFLPA from Saxon and McPhee were more credible than the contradictory declaration submitted by Johnson. Neither the McPhee nor Saxon declaration attests that all Policy amendments or modifications must go through the declarant or that the declarant is solely responsible for negotiating, approving, or even maintaining all amendments and modifications. That the two “believe” or are “not aware” of amendments hardly establishes conclusive facts for purposes of summary judgment. (A-383 at ¶ 5; A-384 at ¶ 2.) Furthermore, when “the facts of a case turns on credibility, a triable issue of fact exists, and the granting of summary judgment is error.” Colby v. Klune, 178 F.2d 872, 873 (2d Cir. 1949); see also Arnstein v. Porter, 154 F.2d 464, 469-70 (2d Cir. 1946) (non-moving party should be permitted to test the declarant’s credibility). -19- II. THE DISTRICT COURT IMPROPERLY DENIED JOHNSON’S REPEATED REQUESTS FOR DISCOVERY Before granting the NFLPA’s summary judgment motion, the District Court denied Johnson all discovery. [S]ummary judgment should only be granted if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment. Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (emphasis added); see also Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (“when the party opposing the motion has not been dilatory in seeking discovery, summary judgment should not be granted when he is denied reasonable access to potentially favorable information”). Whether the NFLPA provided Johnson the complete Policy is determinative of his LMRDA Section 104 claim. Johnson sought discovery as to this key issue under Civil Rule 56(d). (See A-21 (Doc. No. 141) and A-22 (Doc. No. 149).) To succeed on a motion under Civil Rule 56(d), Johnson must show: (1) (2) (3) (4) what facts are sought and how they are to be obtained; how these facts are reasonably expected to raise a genuine issue of material fact; what efforts the affiant has made to obtain them; and why the affiant’s efforts were unsuccessful. Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004). -20- Through depositions and written discovery, Johnson sought discovery as to the totality of the Policy, and identified for the District Court the above evidence of Policy documents the NFLPA never produced to him. (See A-21 (Doc. No. 141) and A-22 (Doc. No. 149).) This evidence related directly to Johnson’s LMRDA claim and clearly warranted discovery. Yet, the District Court denied Johnson’s request. (SPA-29-31.) This Court reviews the District Court’s denial of Johnson’s motion under Civil Rule 56(d) for abuse of discretion. Crye Precision, 689 Fed. Appx. at 106. Prior to seeking discovery under Civil Rule 56(d), Johnson tried to obtain this discovery on multiple occasions (A-149-150; A-152-159; A-261-264), but the District Court also denied these attempts (A-192 at 33:1-17, A-205-206 at 46:2047:4; SPA-24-25). Even the NFLPA agreed that discovery was appropriate. (A150 (“If…the NFLPA’s planned motion to dismiss were denied, and Johnson was in turn permitted to pursue his DFR or LMRDA claims against the NFLPA, only then would any discovery become appropriate”) (emphasis added); A-152-155 (NFLPA agreeable to exchanging initial disclosures, and, if Johnson’s claims survived the NFLPA’s motion to dismiss, the NFLPA requested a 120-day discovery period, including written discovery and depositions).) Not only did the District Court completely deny Johnson discovery, it allowed the NFLPA to file its motion for summary judgment without answering -21- Johnson’s Amended Complaint, including the following substantive factual allegations related directly to Johnson’s LMRDA claim: 311. Upon requesting one of these side agreements, modifications, deviations, etc. from the NFLPA, the NFLPA told Johnson that he should obtain it from the NFLMC. The NFLMC refused to provide it to Johnson. 312. The NFLPA never provided players the version of the 2015 Policy it claimed applied to Johnson. Instead, the NFLPA placed a different version on the 2015 Policy on the NFLPA’s website, which it never changed. Despite substantial modifications to the 2015 Policy, the NFLPA did not update the 2015 Policy available on its website or otherwise notify its player-members of the modifications. (A-72-73.) On August 24, 2017, the District Court ordered the NFLPA to refile its motion to dismiss by September 27, 2017 and to file its answer to Johnson’s Amended Complaint by September 8, 2017. (A-15-16 (Doc. No. 98).) The NFLPA completely disregarded the latter part of this order and never answered. Then, pursuant to Civil Rule 12(a)(4)(A), the NFLPA should have filed its answer on or before October 12, 2018 -- 14 days after the Court denied, in part, the NFLPA’s motion to dismiss. Again, the NFLPA never did so. Instead, the District Court ordered, in disregard of its earlier order and Civil Rule 12(a)(4)(A), that the NFLPA could file a motion for summary judgment. (SPA-24.) The District Court’s denial of all discovery was an abuse of discretion. -22- III. THE DISTRICT COURT IMPROPERLY LIMITED JOHNSON’S DAMAGES FOR THE NFLPA’S VIOLATION OF THE LMRDA TO HIS BELATED RECEIPT OF THE POLICY Without any discovery, the District Court improperly found that the NFLPA provided Johnson the complete Policy on October 16, 2018. (SPA-29-31.) While the District Court considered the NFLPA’s belated production of the Policy a violation of LMRDA Section 104, it reasoned that Johnson’s only remedy for the NFLPA’s violation was his receipt of the Policy. (SPA-18; SPA-29-31; SPA-32.) The District Court’s decision conflicts with controlling precedent and undermines the purpose of Section 104. The practical ramifications of the District Court’s holding that damages under Section 104 are limited to a union member’s receipt of the requested collective bargaining agreement, regardless of when the union provides the agreement, are staggering. If this Court permits this holding to stand, unions throughout the Second Circuit (and beyond) could rely on this authority to refuse to provide collective bargaining agreements to their members arbitrarily. Any union could force a member to expend the time, money, and resources to file a federal lawsuit to simply obtain a collective bargaining agreement governing the member’s employment. Under the District Court’s current holding, then, nearly two years after the member has filed a lawsuit, the union could provide the member a copy of the requested agreement and nothing more. -23- Such a conclusion directly conflicts with the LMRDA’s purposes of ensuring that unions “adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations” and preventing unions from disregarding the rights of individual employees. See 29 U.S.C. § 401. It also would increase unnecessarily the number of cases filed in federal court. The NFLPA and the District Court relied on two cases for the misguided conclusion that Johnson’s sole remedy for the NFLPA’s violation of Section 104 is his receipt of the Policy two years and thousands of dollars of legal expenses after he requested it -- Gonzalez v. Local32BJ and Mazza v. Dist. Council of N.Y. Both cases are readily distinguishable. In Gonzalez v. Local32BJ, the plaintiff claimed his union violated his right to receive a copy of the collective bargaining agreement. Gonzalez, No. 09 Civ. 8464 (SHS) (RLE), 2010 U.S. Dist. LEXIS 102971 at *10 (S.D.N.Y. Sept. 7, 2010). However, in plaintiff’s complaint, he averred that he received the agreement and attached a copy of it to his complaint. Id. The plaintiff also did not plead that he requested a copy of the agreement, a prerequisite to a LMRDA Section 104 claim. Id. Based on these facts, the court found that “since Gonzalez has a copy of the Agreement, the issue is moot and he has no [Section 104] claim.” Here, Johnson pled that he requested and did not receive the Policy. (A-7273 at ¶¶ 307-13.) The NFLPA admitted Johnson did not receive what it claims is -24- the complete Policy until October 2018 -- more than two years after he first requested it and after nearly two years of costly litigation. In Mazza v. Dist. Council of N.Y., it was “undisputed that plaintiff made no request for a copy of the CBA prior to discovery”. Mazza, No. CV-00-6854 (BMC) (CLP), No. CV-01-6002 (BMC) (CLP), 2007 U.S. Dist. LEXIS 65965, *39 (E.D.N.Y. Sept. 5, 2007). Furthermore, plaintiff Mazza, despite filing multiple complaints, never included a LMRDA claim in his pleadings and, at best, sought to raise such a claim as part of his opposition to defendants’ motion for summary judgment. Id. In dicta, the court reasoned that since the union ultimately provided Mazza a copy of the agreement, after Mazza presumably requested it during discovery, the union complied with the LMRDA. Id. at *40. Here, unlike Mazza, Johnson made multiple requests for the complete Policy before filing this action and actually pled a claim under Section 104 of the LMRDA. (A-72-73 at ¶¶ 304315.) Neither Gonzalez nor Mazza held: (1) that a union can moot a member’s Section 104 claim by belatedly providing the member the requested collective bargaining agreement or (2) that damages under the LMRDA are limited to a member’s receipt of the collective bargaining agreement. Rather, Johnson is entitled to all damages available under Section 102 of the LMRDA, under which he brings his Section 104 claim. -25- Section 104 is in Title I of the LMRDA, and the civil enforcement mechanism for a Title I violation is LMRDA Section 102. See 29 U.S.C. § 412 (“any person whose rights secured by the provisions of [Title I] have been infringed by any violation of this title may bring a civil action…”). The following cases, all brought under Section 102, make clear that available Section 102 damages include compensatory and punitive damages, attorneys’ fees, and costs:  Hall v. Cole, 412 U.S. 1, 8-9 (1973) (attorneys’ fees available to party who prevails on a LMRDA claim);  Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, etc., 749 F.2d 1000, 1004 (2d Cir. 1984) (claimants successful under Section 102 of the LMRDA “may recover attorneys’ fees”);  Local Union No. 38, Sheet Metal Workers' Int'l Ass'n v. Pelella, 350 F.3d 73, 77, 90-91 (2d Cir. 2003) (jury award of attorneys’ fees to a union member that prevailed on a LMRDA claim appropriate even where jury did not award the union member compensatory damages);  Berg v. Watson, 417 F. Supp. 806, 812-13 (S.D.N.Y. 1976) (punitive damages available under the LMRDA); and  Quinn v. Di Giulian, 739 F.2d 637, 646, 648-52, (D.C. Cir. 1984) (plaintiff entitled to jury trial on damages resulting from a union’s breach of the LMRDA, which may include: actual damages, including mental distress and harm to reputation; punitive damages; and attorneys’ fees); see also Hodges v. Virgin Atlantic Airways, Ltd., 714 F. Supp. 75, 77 (S.D.N.Y. 1988) (recognizing the Quinn v. Di Giulian decision, including that a claim for damages under the LMRDA sounds in tort). -26- Even assuming the NFLPA provided Johnson with the complete Policy in October 2018 -- more than two years after he first requested it -- Johnson’s damages include far more than his receipt of the Policy. They include his compensatory damages, punitive damages, and attorneys’ fees and costs. IV. THE DISTRICT COURT IMPROPERLY DISMISSED JOHNSON’S BREACH OF THE DUTY OF FAIR REPRESENTATION CLAIMS AGAINST THE NFLPA In the same Memorandum and Opinion, the District Court inexplicably determined that the NFLPA did not breach its DFR to Johnson despite its failure to provide him with the collective bargaining agreement at issue in his discipline -dismissing, under Civil Rule 12(b)(6), Johnson’s DFR claim for the NFLPA’s failure to provide him documents relevant to his arbitration. (SPA-15-17.) This Court reviews the District Court’s 12(b)(6) ruling de novo. Salazar v. King, 822 F.3d 61, 72 (2d Cir. 2016). To prove that a union has breached its duty of fair representation, the challenging members must establish two elements. First, they must prove that the union's actions or inactions are either 'arbitrary, discriminatory, or in bad faith. Second, the challenging members must "demonstrate a causal connection between the union's wrongful conduct and their injuries. Vaughn v. Air Line Pilots, Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010) (internal citations omitted). At the motion to dismiss stage, the District Court had to find that the NFLPA withheld from Johnson the complete Policy, his discipline file, and -27- his testing history file, among other documents, as Johnson pled in his Amended Complaint. (A-50 at ¶¶ 131-134, A-71 at ¶ 298, A-72 at ¶ 310.) The National Labor Relations Board (“NLRB”) has long held that unions breach the DFR by refusing members their discipline-related information. See Caravan Knight, 362 NLRB 196, slip op. at 5-6 (Aug. 27, 2015) (failed to provide a union statement); USPS, 362 NLRB 103, slip op. at 6 (May 29, 2015) (failed to provide the labor contract); Teamsters Union No. 200, 357 NLRB 1844, 1862 (2011) (failed to provide job referral lists, rules, policies, and procedure notices); Letter Carriers Local 3825, 333 NLRB 343, 353 (2001) (failed to provide other employee grievance documents); Nat’l Assoc. of Letter Carriers, 328 NLRB 952, 952 (1999) (failed to provide employee grievance file); and Carpenters Local 35, 317 NLRB 18,19-22 (1995) (failed to provide job referral documents because employee had filed a grievance). The NFLPA’s improper withholding of these documents injured Johnson in that it prevented him from fully evaluating and defending his rights. (A-392 at ¶ 7). This withholding amounts to a per se violation of the NFLPA’s DFR. Id. A 2018 law review article detailed the NFLPA’s practice of withholding its unratified side deals with the NFL and other relevant information from its members, including, in particular, Johnson. Sam C. Ehrlich, A More Perfect (NFL Players) -28- Union: Secret “Side Deals,” the NFLPA, and the Duty of Fair Representation, 44 Ohio N.U.L. Rev. 33 (2018). Further demonstrating the need for discovery, while recognizing that the NFLPA may have violated its DFR to Johnson, the article’s author concluded “there is still much that is unknown” about the NFLPA’s conduct as to the “side deals” at issue here. Id. at 53. These side deals also are not enforceable. See Rupcich v. UFCW, Local 881, 833 F.3d 847, 855 (7th Cir. 2016) (unratified side deal unenforceable where it conflicts with fundamental term of agreement). IV. THE DISTRICT COURT IMPROPERLY DISMISSED JOHNSON’S BREACH OF CONTRACT CLAIMS AGAINST THE NFL The District Court relied on its dismissal of Johnson’s DFR claims against the NFLPA to dismiss Johnson’s breach of contract claims against the NFL. (SPA-26-28.) Given the District Court’s improper dismissal of Johnson’s DFR claims, the District Court’s reliant dismissal of Johnson’s breach of contract claims against the NFL also was improper. V. THE DISTRICT COURT IMPROPERLY DENIED JOHNSON’S MOTION TO VACATE This Court reviews the District Court’s denial of Johnson’s motion to vacate the adverse arbitration award de novo for questions of law and clear error for findings of fact. Scandinavian Reins. Co. v. St. Paul Fire & Marine Ins. Co., 668 F.3d 60, 71 (2d Cir. 2012). -29- In acknowledging that it did not provide Johnson with the complete collectively bargained Policy under which the NFL disciplined him in 2016 until October 2018, the NFLPA admitted Johnson did not have the entire Policy at the time of his arbitration in 2016. It is axiomatic that Johnson could not have “had a full and fair hearing” absent the complete Policy. See Smith v. American Federation of Musicians, No. 68 CIV 2937, 80 L.R.R.M. 3063, 1972 U.S. Dist. LEXIS 13898, *17 (S.D.N.Y. May 4, 1972) (union member cannot have a full and fair hearing where union refused to provide him with the collective bargaining agreement directly affecting his rights). Even the District Court recognized that having the complete Policy would have “helped” Johnson evaluate his Policy rights. (SPA-9; see also A-392 at ¶ 7 (Johnson attesting that having the complete Policy would have helped him evaluate his rights under the Policy, including how to best appeal his discipline).) This is particularly true of the Collection Procedures, as the Policy expressly permits a player to challenge whether a test occurred in accordance with them. (A99.) In his underlying arbitration, Johnson attempted to argue his discipline was improper due to deviations from the Collection Procedures. (A-212-213.) However, the NFLPA foreclosed Johnson’s ability to address this issue, because it withheld the Collection Procedures from him in violation of the LMRDA and its DFR. -30- Absent Johnson’s receipt of the complete Policy under which the NFL disciplined him, Johnson could never have the transparent and “fair system of adjudication” the Policy promised. (A-84.) This Court should reverse the District Court’s denial of Johnson’s motion to vacate. CONCLUSION This Court should reverse the District Court’s grant of summary judgment in favor of the NFLPA, permit Johnson to conduct discovery, require the NFLPA to answer Johnson’s Amended Complaint, and reverse the District Court’s orders granting, in part, the NFLPA’s motion to dismiss, granting the NFL’s motion to dismiss under Civil Rule 12(c), and denying Johnson’s motion to vacate Respectfully submitted, Date: December 10, 2019 /s/ Stephen S. Zashin Stephen S. Zashin - NY #4594305 ssz@zrlaw.com Zashin & Rich Co., L.P.A. 950 Main Ave., 4th Floor Cleveland, OH 44113 Telephone: 216/696-4441 Fax: 216/696-1618 Attorney for Plaintiff-Appellant, David Lane Johnson -31- CERTIFICATE OF COMPLIANCE 1. This Brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), as it contains a total of 7,843 words. 2. This Brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6), as the Brief includes proportionally spaced typeface using Microsoft Word 2010 and the font is Times New Roman, 14-point size. Date: December 10, 2019 /s/ Stephen S. Zashin Stephen S. Zashin - NY #4594305 ssz@zrlaw.com Zashin & Rich Co., L.P.A. 950 Main Ave., 4th Floor Cleveland, OH 44113 Telephone: 216/696-4441 Fax: 216/696-1618 Attorney for Plaintiff-Appellant, David Lane Johnson -32- Special Appendix i SPECIAL APPENDIX TABLE OF CONTENTS Page Order of the Honorable Richard J. Sullivan, filed September 28, 2018 ............................................... SPA-1 Memorandum and Opinion of the Honorable Richard J. Sullivan, filed October 3, 2018............. SPA-2 Order of the Honorable Richard J. Sullivan, filed October 23, 2018 ................................................... SPA-24 Order of the Honorable Richard J. Sullivan, filed November 26, 2018 ............................................... SPA-26 Order of the Honorable Richard J. Sullivan, filed January 9, 2019 ...................................................... SPA-29 Opinion and Order of the Honorable Richard J. Sullivan, filed August 2, 2019 ............................... SPA-32 Judgment, filed August 5, 2019 ................................. SPA-41 SPA-1 Case 1:17-cv-05131-RJS Document 124 Filed 09/28/18 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK q /28/Ji DAVID LANE JOHNSON, Plaintiff, No. 17-cv-5131 (RJS) ORDER -v- NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, et al., Defendants. RICHARD J. SULLIVAN, District Judge: For the reasons to be set forth in a separately-docketed Opinion and Order, IT IS HERE BY ORDERED THAT Defendant National Football League Players Association's motion to dismiss Plaintifrs first amended complaint is GRANTED as to Plaintiff's claims for breach of the duty of fair representation and his claim for declaratory relief, and DENIED as to Plaintiffs claim pursuant to the Labor-Management Reporting and Disclosure Act ("LMRDA"). Plaintiff's petition to vacate the arbitral award is DENIED, and the arbitral award is therefore confirmed. The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 107 and 108. SO ORDERED. Dated: September 28, 2018 New York, New York !CHARD J. SULLIVAN UNITED STATES DISTRICT JUDGE SPA-2 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 1 of 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK No.17Civ.5131 (RJS) l0/3/18 DAYID LANE JOHNSON, Plaintiff, VERSUS NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION ET Al., Defendants. MEMORANDUM AND ORDER October 3, 2018 RICHARD J. SULLIVAN, District Judge: Plaintiff David Lane Johnson, a professional football player who was suspended for ten games after testing positive for a performance-enhancing substance, brings this action to vacate the arbitration decision that upheld his suspension. Johnson also brings claims against the National Football League Management Council ("NFLMC") and his union, the National Football League Players Association ("NFLPA "'), alleging that the NFLMC violated its collective bargaining agreement with the NFLPA and that the NFLPA violated its duty of fair representation and its duty to provide documents in connection with the arbitration proceedings. Now before the Court is Johnson's petition to vacate the arbitration award and the NFLPA's motion to dismiss that petition and Johnson's complaint. For the reasons set forth below, the NFLP A ' s motion to dismiss is granted in part and denied in part, and Johnson 's petition to vacate the arbitration award is denied. I. BACKGROUND Since 2013, David Lane Johnson has been an offensive tackle for the National Football League's Philadelphia Eagles. 1 1 The facts set forth below are taken from the First Amended Complaint (Doc. No. 39 ("Comp).'')), statements or documents incorporated into the complaint by reference, and documents upon which Plaintiff relied in bringing the suit. See ATS/ Commc 'ns. Inc. v. Shaar Fund, ltd., 493 F.3d 87, 98 (2d Cir. 2007). In ruling on the instant motion, the Court has also considered the briefs in support of and in opposition to Johnson' s petition to vacate the SPA-3 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 2 of 22 (Comp!. , 19.) Johnson's terms of employment are governed by a collective bargaining agreement that was negotiated by the NFLPA, the exclusive bargaining representative of professional football players employed by the NFL. (Id. ,i,i 2, 20, 23.) The NFLMC is the NFLPA's counterpart; it represents the separatelyowned NFL teams in collective bargaining and labor relations. (Id. ,i,i 4, 22.) Several Policy provisions are important to Johnson 's case. First, the Policy establishes certain circumstances under which a player can be tested for a prohibited substance. (Comp!. , 27.) The " types of testing" include pre-employment, annual, preseason, regular season, postseason, offseason, and, relevant here, for " reasonable cause." (Policy § 3.1.) A player can be designated by the Independent Administrator - an individual jointly selected by the NFLPA and the NFLMC to administer the Policy - for reasonable-cause testing for a va1iety of reasons, including a previous positive test result for a prohibited substance, as well as a determination that there exists "credible, verifiable documented information" providing "a reasonable basis to conclude., that a player "may" have violated the Policy. (Id. §§ 2.1, 3.1.) A player who is placed into reasonable-cause testing must remain in the program for at least two years or two full seasons (whichever is shorter), and must be discharged thereafter unless the Independent Administrator notifies the player in writing that he will remain in the program subject to review at a later date. (Id. § 3.1.) If a player is placed into the program for a reason other than a violation of the Policy, he is not subject to the two-year minimum placement and may be discharged at any time, provided that he is advised in writing on an annual basis if the Independent Administrator detennines that he should remain in the program. (Id.) A. The Collective Bargaining Agreement and the 2015 Policy on PerformanceEnhancing Substances The current collective bargaining agreement negotiated by the NFLPA and the NFLMC went into effect on August 4, 201 I and will remain the governing collective bargaining agreement until the last day of the 2020 League Year. (Id. ,i 22.) In addition to this general agreement, the NFLPA and the NFLMC have negotiated specific policies governing the use of perfonnance-enhancing substances. (Id. ,i 24.) Relevant to this dispute is the "2015 Policy on Performance-Enhancing Substances." (Id. , 24; see also Doc. No. 39, Ex. I (the "Policy").) The 2015 Policy establishes the rules governing the use of performance-enhancing substances in the NFL. (Id. ,i 27.) To that end, the Policy identifies banned substances, sets forth the testing procedures for of the Policy, detecting violations establishes disciplinary practices to be followed in the event of a violation, and provides for an appeal if a player is dissatisfied with the disciplinary process. (See Policy§§ 3, 4, 9, I 0, 11.) Second, the Policy establishes the procedures for testing a player for the use of a prohibited substance. (Id. §§ 3.2, 3.4.) Specifically, the Policy empowers the Independent Administrator to "determine the most appropriate laboratory . . . to perfonn testing under the Policy:· (Id. § 3.4.) The Policy also obliges a player to comply with all testing requirements, stating that any arbitration award (Doc. Nos. 111 , I I 3, 11 6, I 17, I I 8), and the briefs in support of and in opposition to the NFLPA's motion to dismiss the petition to vacate the arbitration award (Doc. Nos. I09, 11 2, 119). 2 SPA-4 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 3 of 22 failure or refusal to appear for testing, or to "cooperate fully in the collection process,·· will lead to disciplinary action. (Id. § 3.3.) Policy, imposing obligations on both the NFLPA and the NFLMC in order to ensure the fairness of the appeals process. Third, the Policy sets the procedures to be applied in the event of a positive test for a prohibited substance. (Id. § 4.) When a player provides a specimen, that sample is divided into an " A" sample and a '·B'" sample. (Id. § 4.2.) If the Chief Forensic Toxicologist certifies that the ''A" sample has tested positive for a prohibited substance, then the " B'" sample will be tested to confinn the results. (Id.) Importantly, Section 4.2 of the Policy sets out the procedures for testing the " B" sample and provides that the player may elect to have an independent toxicologist "observe" the " B" sample analysis. (Id.) The Policy requires that a technician other than the one who tested the "A" sample test the " B" sample, but the test must occur in the same laboratory. (Id.) Under Section 11 of the Policy, the NFLMC must at all times carry the burden of establishing a positive test result pursuant to a test authorized by the Policy and conducted in accordance with the requirements and procedures outlined therein. However, even if a player alleges a deviation from the prescribed procedures, the NFLMC can still carry its burden by demonstrating that: "(a) there was no deviation; (b) the deviation was authorized by the Parties; or ( c) the deviation did not materially affect the accuracy or reliability of the test result." (Id. § 11 .) Finally, Section 16 of the Policy governs the procedures used to retain and destroy specimens used for testing. (Id. § 16.) In particular, that section obliges the Independent Administrator and Chief Forensic Toxicologist to work with the testing laboratories to develop procedures for the handling of players' specimens after they have been tested to ensure that the samples are destroyed at the appropriate time. (Id.) Fourth, and rather straightforwardly, the Policy describes the penalties for players who test positive for prohibited substances. (Policy § 6.) ln particular, the Policy sets the number of regular and postseason NFL games for which a player may be suspended, without pay, for violations of the Policy. (Id.) B. Johnson 's Discipline and Substance Testing Fifth, Sections 9, 10, and 11 of the Policy define the appeals process available to any player wishing to challenge the disciplinary decision. Relevant to Jolmson's case, Section 9 governs the selection of arbitrators; Section 10 establishes the process for appealing the decision of the NFLMC; and Section I 1 defines the burdens and standards of proof to be used during the appeal, as well as discovery obligations. Collectively, these sections define the scope of procedural protections afforded to an NFL player who is disciplined under the On April 23, 2014, Johnson was tested for perfonnance-enhancing substances under the policy in effect prior to the 2015 Policy. (Comp!. ,i 42.) On May 19, 2014, he was notified by letter that his test was positive and that he would be subject to reasonablecause testing. (Id.) The first reasonablecause program test of Johnson took place on August 18, 2014, and he was tested at varying intervals thereafter. (Doc. No. 39, Ex. 2 ("Award'") ,i 6.7.) 3 SPA-5 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 4 of 22 Approximately a year later, the position of Chief Forensic Toxicologist described in Policy Section 2.2 fell vacant due to the retirement of Dr. Bryan Finkle, who had occupied that role. (Comp!. ,r 97.) The position remained vacant, and, in the interim, the NFLPA and NFLMC agreed that Dr. Anthony Butch, Director of the UCLA Olympic Analytical Laboratory, would fill the role of the Chief Forensic Toxicologist by certifying the analysis of "B" samples. (Award ,r,r 6.25- 6.26.) sample test" was "compromise[d)'" without those additional materials, they were never (Id. ,r 52.) Indeed, provided to him. according to Johnson, " Lombardo and/or the NFLMC instructed" Dr. Butch to withhold the requested materials from Johnson· s retained toxicologist. (Id. ,r 54.) Also on August 13, 2016, ESPN published an article quoting Johnson, who complained about the inadequacy. of the NFLPA ·s representation with regard to the 2015 Policy. (Id. ,r 123 .) Two days later, the Philadelphia Inquirer published an article in which Johnson again complained about the NFLPA' s failure to represent him concerning the prohibited substance testing. (Id. ,r 124.) ESPN subsequently reported that the NFLPA objected to Johnson' s allegations in a media statement, calling Johnson' s statements inaccurate, reaffirming that "[w]e always stand up for the rights of our players," and stating that "we have been in touch with both [Johnson] and his agent, who now understand the facts." (Id. ,r 125.) Johnson denies that he or his agent were contacted by the NFLP A about the subject of the ESPN report. (Id. ,r 126.) On July 11 , 2016 - more than two years after Johnson was first notified by letter that he would be subject to reasonable-cause testing, but less than two years after his first reasonable-cause program test - Dr. John A. Lombardo, the Independent Administrator of the 2015 Policy, directed Johnson to submit to another reasonable-cause test, and Johnson complied with his request, providing a urine sample the following day. (Comp!. ,r,r 8, 47.) Later that month, on July 28, 2016, Dr. Lombardo notified Johnson that the "A" sample had tested positive for a prohibited substance. (Id. ,r 48.) Johnson exercised his right under the Policy to have the "B" sample tested to confirm the results, and he notified Dr. Lombardo that he had retained Dr. Michael D. Levine, an independent toxicologist, to observe the testing of the "B" sample as provided for by the Policy. (Id. ,r,r 7, 49.) Johnson' s ··B'' sample was tested by the UCLA Olympic Analytical Laboratory on August 19, 2016, which confirmed the toxicologist' s original conclusion - that Johnson had tested positive for a prohibited substance under the 2015 Policy. (Id. ,r,r 53- 54.) Notwithstanding Johnson' s protestations that the '·s•· sample was not analyzed ·'by a technician other than the one performing the ' A' confirmation test," as required by the Policy (id. ,r 55), the NFLMC suspended Johnson without pay for ten games on September 6, 2016, pursuant to the Policy (id. ,r 56). On August 13, 2016, Dr. Levine requested from Dr. Lombardo copies of materials relating to the testing laboratory·s procedures, but two days later, Dr. Lombardo denied the request, writing to Dr. Levine: "No laboratory policy or procedures are made available to the observing toxicologist." (Id. ,r,r 50, 51.) Even though Dr. Levine subsequently complained to Dr. Lombardo that his ability to '·effectively observe and evaluate the B C. Johnson's Appeal of the September 6, 2016 Suspension 4 SPA-6 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 5 of 22 Two days after learning of his suspension, Johnson appealed the NFLMC's decision. (Id. ,i 57.) As part of the appeals process, Johnson requested information from the NFLMC, including infonnation about how the arbitrators were selected, the Section 16 retention and destruction procedures, his history of reasonable-cause testing, the dates he was placed in reasonable-cause testing, and the identity of the Chief Forensic Toxicologist. (Id. ,r 58.) declined to direct the NFLMC to produce the requested documents, which included the testing laboratory protocols originally sought by Johnson' s retained toxicologi st, Dr. Levine. (Comp!. ,r 63.) Prior to the hearing, Johnson submitted his Basis for Appeal, which set forth a series of arguments for the vacatur of his suspension. (Award ,i 5. l (citing Doc. No. 109, Ex. C).) First, Johnson argued that the NFL could not meet its initial burden of establishing the validity of the test result because the test was not authorized by the Policy, citing a violation of the two-year limitation on reasonable-cause testing as well as the improper collection and analysis of his test. (Id.) Among these alleged improprieties, Johnson asserted the fact that his test results were certified by someone other than the designated Chief Forensic Toxicologist; that his sample was destroyed prior to final adjudication of the appeal; that the B sample analysis was conducted by "improper" personnel; and that the NFLMC refused to provide Johnson' s observing toxicologist with laboratory protocols. (Id.) Johnson also set forth an affirmative defense - that the presence of the prohibited substance in his urine was not due to his fault or negligence, because he took appropriate steps to investigate the contents of the substance he ingested. (Id. ,r 5.2.) In compliance with the Policy's requirement that an appeal hearing occur "on the fourth Tuesday following issuance of the notice of discipline" (Policy § l 0), the NFLMC scheduled the hearing to occur on Tuesday, October 4, 2016 in front of James Carter, an attorney with the WilmerHale law firm . (Comp!. ,r,r 6, 60.) Although Section 9 of the Policy required that an arbitrator be selected from a pool of three arbitrators, at the time Arbitrator Carter was selected, the pool consisted of only two such arbitrators. (Id. ,r 61.) The Policy also required that a Notice Arbitrator, tasked with the scheduling and assignment of appeals, be selected by the arbitrators. (Policy § 9.) At the time of Arbitrator Carter' s selection, the Notice Arbitrator had been chosen by the NFLMC and the NFLPA, rather than by the other arbitrators, and the NFLP A and NFLMC, rather than the Notice Arbitrator, handled the scheduling and assignment of appeals. (Com pl. ,i,r 61 - 62.) At the time of his selection, Arbitrator Carter also served as an arbitrator under a separate NFL/NFLPA policy, and his law fom, WilmerHale, represented the NFL in other matters. (Id. ,r,r 174-190.) The hearing before the Arbitrator took place on October 4, 2016. (Comp!. ,i 165.) Six days later, the Arbitrator issued a summary decision denying Johnson 's appeal. (Id. ,r 66.) The next day, the Arbitrator issued a twelve-page written opinion setting forth the justification for his decision. Because the NFLMC did not provide Johnson with the materials he requested prior to the hearing, the Arbitrator held a discovery call on September 22, 2016. (Id. ,r 63; Award ,i 4.5.) The Arbitrator thereafter D. The October 11 , 2016 Arbitral Award In the Arbitral Award, the Arbitrator first deten11ined that the effective date of 5 SPA-7 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 6 of 22 Johnson being "placed into'" the reasonablecause testing program for purposes of Section 3.1 of the Policy was August 18, 2014 - the date on which his name was removed from the general random testing pool and reasonable-cause testing was initiated. (Award iJ 6.14.) The Arbitrator thus concluded that the July 12, 2016 test occurred while Johnson was properly in the reasonable-cause testing program and was therefore authorized under the Policy. (Id. ,I 6.20.) the Arbitrator determined that Johnson's conduct was negligent and rejected his affirmative defense (id. ,I 6.59). E. Procedural History Johnson commenced this case on January 6, 2017 in the United States District Court for the Northern District of Ohio, naming the NFLP A, the NFL, and the NFLMC as defendants. (Doc. No. 1.) In addition to petitioning the court to vacate the arbitration award, Jolmson also alleged that the NFLMC breached the 2015 Policy in violation of Section 301 of the Labor Management Relations Act ("'LMRA"), that the NFLP A breached the duty of fair representation that is implied from the National Labor Relations Act ("NLRA"), and that the NFLP A violated the LaborManagement Reporting and Disclosure Act of 1959 ("LMRDA") when it failed to turn over the documents requested by Johnson. (Comp!. ilil 265- 276, 278- 303, 305- 315, 317- 332.) The case was assigned to Judge Sara Lioi in Akron, Ohio. Next, the Arbitrator determined that none of the collection and analysis issues raised by Johnson supported an appeal of the sanction. (Id. ,I 6.42.) The Arbitrator found that the positive result of the "B'" sample was validly certified by Dr. Butch, based on the agreement between the bargaining parties to permit the director of the testing laboratory to certify test results. (Id. ilil 6.26-6.27.) The Arbitrator also found no deviation from the Policy with respect to the destruction of specimens (id. ,I 6.30); deemed Johnson' s claims regarding improper testing personnel to be untimely, abandoned, and unpersuasive (id. ,I 6.35); and detennined that Dr. Levine was not hampered in his efforts to perfonn an effective observation of the B sample analysis (id. ,I 6.36- 6.41 ). On January 19, 2017, the NFLPA moved to transfer venue to the Southern District of New York (Doc. No. 16) and to stay the proceedings pending resolution of that The NFL and motion (Doc. No. 17). NFLMC joined the motion to stay the proceedings (Doc. No. 21 ), and filed their own joint motion in which they urged Judge Lioi to dismiss the petition for lack of personal jurisdiction or improper venue, or in the alternative, to transfer venue (Doc. No. 22). On July 6, 2017, after what Judge Lioi referred to as an '·unwieldy'· influx of filings that included a First Amended Complaint (Doc. No. 39) by Johnson and a motion to dismiss filed by the NFLPA (Doc. No. 26), Judge Lioi granted Defendants' motion to transfer venue to the Southern Finally, the Arbitrator turned to Johnson's affirmative defense - that the presence of the prohibited substance was not due to Johnson' s fault or negligence. (Id. il 6.43- 6.59.) After taking note of the warnings given by the NFL and NFLPA to players regarding the use of supplements and describing Johnson's decision-making process in deciding to ingest the supplement at issue - which included receiving assurances from friends and consulting a website which stated that the substance was '·OKAY" to consume (id. ilil 6.45- 6.58) - 6 SPA-8 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 7 of 22 District of New York without ruling on any of the other pending motions (Doc. No. 68). element." Id. at 1548 (quoting Warth v. Seldin , 422 U.S. 490, 518 (1975)). On July 18, 2017, the case was assigned to my docket. On August I, 2017, the Court denied each of the pending motions without prejudice to renewal. (Doc. No. 86.) At an initial conference on August 24, 2017, the Court set a briefing schedule for the parties to file renewed motions based on relevant Second Circuit authorities. On September 25, 2017, Johnson filed his petition to vacate the arbitration award and the NFLP A filed its motion to dismiss (Doc. Nos. 107, I08), which were fully briefed on November 8, 2017 (Doc. Nos. 117, 118, 119). To show injury in fact, the plaintiff must demonstrate " an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildl(fe, 504 U.S. 555, 560 (1992) ''[G]eneral factual (citations omitted). allegations of mJury resulting from Defendant's conduct may suffice, for on a motion to dismiss we ' presum[e] that general allegations embrace those specific facts that are necessary to support the claim."' Lujan, 504 U.S. at 560 (quoting Lujan v. Nat 'I Wildlife Fed'n, 497 US. 871, 889 ( 1990)). "The ·causal connection' element of Article III standing, i.e., the requirement that the plaintiff's injury be ' fairly . . . trace[able] to the challenged action of the defendant, and not ... th[ e] result [ of] the independent action of some third party not before the court,' does not create an onerous standard'' and "is a standard lower than that of proximate causation." Carter v. HealthPort Techs., 822 F.3d 47, 55 (2d Cir. 2016) (quoting Lujan, 504 U.S. at 560). "A defendant's conduct that injures a plaintiff but does so only indirectly, after intervening conduct by another person, may [still] suffice for Article III standing." Id. at 55- 56. II. NFLPA's MOTION TO DISMISS A. Standing As an initial matter, the NFLPA moves to dismiss Johnson· s claims for lack of standing under Rule 12(b)(I). To withstand a Rule 12(b)(I) motion to dismiss for lack of subject matter jurisdiction, the party seeking to invoke the Court's jurisdiction bears the burden of proving that subject matter jurisdiction exists. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d I 10, 113 (2d Cir. 2000). The NFLPA contends that Johnson lacks standing to allege a breach of the duty of fair representation because ( 1) the Arbitrator concluded that the misconduct alleged by Johnson did not materially affect Johnson' s positive test result, and (2) Johnson admitted to ingesting the substance in question, i.e., that his injuries were not fairly traceable to the NFLPA. However, the NFLPA's argument improperly grafts onto the standing inquiry the demanding standard for causation in a duty of fair representation To establish Article III standing, the plaintiff bears the burden of demonstrating (1) an "injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). " Where, as here, a case is at the pleading stage, the plaintiff must 'clearly . . . allege facts demonstrating' each 7 SPA-9 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 8 of 22 the operative collective bargaining agreement, Johnson's ability to understand his rights under the collective bargaining agreement would have been "helped.'" Again, the NFLPA's assertion that Johnson lacks standing to assert his LRMDA claim because he has not shown that the alleged LMRDA violations altered the outcome of the arbitration applies the wrong causation standard to the standing analysis. claim. At the standing stage, Johnson is not required to show that the NFLPA' s conduct seriously undermined or even altered the outcome of his arbitral process; rather, he must merely allege facts demonstrating that he was injured by conduct attributable to the NFLPA. In that regard, Johnson pleads numerous injuries traceable to the NFLP A, including the costs of retaining outside counsel to pursue his appeal rights due to the NFLPA's lack of support, reputational hann stemming from the NFLPA's media statements, and the detrimental impact of the NFLPA 's silence in his arbitration hearing, all of which satisfy the permissive standard for causation under Article III standing. (Doc. No. 112 at 8- 10.) Under the NFLPA's circular theory, federal courts would have standing to hear only meritorious claims - an untenable position that improperly conflates the standing and merits analyses. See, e.g., Bordell v. Gen. Elec. Co. , 922 F.2d I 057, I 060 (2d Cir. 1991); Montgomery v. Cuomo, 291 F. Supp. 3d 303, 343 (W.D.N.Y. 2018). The NFLPA further asserts that Johnson lacks standing to assert his Declaratory Injunction Act claim under 28 U.S.C. § 2201 because he has alleged only past injury. (Doc. No. 109 at 12-13.) However, the NFLPA fails to acknowledge the cumulative nature of penalties under the 2015 Policy and its predecessor and successor policies (see Comp!. ,r 342), as well as the ongoing injuries stemming from Johnson' s continued participation in the reasonable-cause program (Doc. No. 112 at 13). In light of these alleged ongoing injuries, Johnson has standing to make his Declaratory Injunction Act claim. Johnson likewise has alleged sufficient facts to establish standing for his LMRDA claim, which alleges that the NFLP A failed to provide, upon request, a copy of purported modifications of the 2015 Policy, in violation of Section I 04 of the LMRDA. (Comp!. ,r 306- 315.) "·[A] plaintiff suffers a sufficiently concrete injury to confer Article III standing when she is denied access to information that, in the plaintiff's view, must be disclosed pursuant to a statute and when there is ·no reason to doubt' that the information would help the plaintiff within the meaning of the statute.'· McFarlane v. First Unum Life. Ins. Co. , 274 F. Supp. 3d 150, 161 (S.D.N.Y. 2017) (quoting Fed. Election Comm 'n v. Akins, 524 U.S . 11, 21 ( 1998)). Here, there is no reason to doubt that had the NFLPA fulfilled its LMRDA duty to provide Johnson with a full copy of Because the Court finds that Johnson has standing to assert his various causes of action, the Court proceeds to the merits of Johnson' s claims. B. Failure to State a Claim To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must "provide the grounds upon which [the] claim rests.'' ATS! Commc 'ns, Inc. v. Shaar Fund, ltd. , 493 F.3d 87, 98 (2d Cir. 2007); see also Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief .. .."). To meet this standard, plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A 8 SPA-10 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 9 of 22 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). against the union is for the breach of the union' s duty of fair representation," a duty implied under the NLRA. Roy v. Buffalo Philharmonic Orchestra Soc y, Inc., 682 F. App' x 42, 44 (2d Cir. 2017). Significantly, "a union' s breach of the duty of fair representation is a prerequisite to consideration of the merits of [a] plaintiffs claim against an employer for breach" of a collective bargaining agreement. Acosta v. Potter, 410 F. Supp. 2d 298, 309 (S.D.N .Y. 2006) (internal quotation marks and citation omitted). In reviewing a Rule I 2(b )(6) motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATS] Commc 'ns, 493 F.3d at 98. However, that tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Thus, a pleading that offers only " labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. If the plaintiff "ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be di smissed." Id. at 570. Unions have a duty to "represent fairly all employees subject to the collective bargaining agreement;' Vaughn v. Air Line Pilots Ass 'n, Int 'I, 604 F.3d 703 , 709 (2d Cir. 20 I 0) ( citation omitted), a duty that extends to "all union activity," Air Line Pilots Ass ·11, Int '/. v. 0 N eill, 499 U.S. 65, 67 ( 1991). This duty is "implied from§ 9(a) of the National Labor Relations Act," White v. White Rose Food, 237 F.3d 174, 179 n.3 (2d Cir. 200 I), and ·'marks the outer boundary of a union' s broad discretion to represent members of a bargaining unit," Acosta, 410 F. Supp. 2d at 308. The NFLPA moves to dismiss Johnson 's claims that the NFLPA breached its duty of fair representation and that the NFLP A The Court will violated the LMRDA. address each in tum. 1. Duty of Fair Representation '·To prove that a union has breached its duty of fair representation," a plaintiff "must establish two elements. First, [he] must prove that the union ' s actions or inactions are either ' arbitrary, discriminatory, or in bad faith.' Second, [he] must demonstrate a causal connection between the union's wrongful conduct and [his] injuries." Vaughn, 604 F.3d at 709- 10 (first quoting 0 'Neill, 499 U.S. at 67, then quoting Spellacy v. Airline Pilots Ass 'n-lnt '!, 156 F.3d 120, 126 (2d Cir. 1998)). In the arbitration context, the standard for causation is a demanding one: "a cause of action for breach of the duty of fair representation only lies where the union 's action 'seriously undermine[d] the arbitral Johnson brings claims against the NFLMC and NFLPA through what is known as a "hybrid § 301 /fair representation claim." Carrion v. Enter. Ass 'n, M etal Trades Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000). Such claims combine two causes of action: the suit against the employer alleges breach of the collective bargaining agreement and arises under Section 301 of the LMRA, 2 while the ·'suit 2 Section 301 of the LMRA provides that federal district courts may hear suits b ased upon the breach of a contract between an employer and a labor organization. See Labor Manageme nt Relations Act 301 (a), 29 U.S.C. 185(a). * * 9 SPA-11 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 10 of 22 process.,,. Nieves v. District Council 3 7 (DC 37), AFSCME, AFL-CJO, No. 04-cv8181 (RJS), 2009 WL 4281454, at *10 (S.D.N.Y. Nov. 24, 2009) (quoting Barr v. United Parcel Serv., 868 F.2d 36, 43 (2d Cir. I 989)), ajf'd sub nom. Nieves v. Roberts, 420 F.App'x118 (2d Cir. 2011). Here, Johnson alleges that the NFLP A breached its duty of fair representation in four ways. First, he asserts that the NFLP A violated its constitution by pennitting unratified deviations from the 2015 Policy. (Doc. No. 112 at 16.) Second, he alleges that the NFLPA failed to investigate Johnson ' s discipline and was generally unsupportive of him throughout the arbitration. (Id. at 18.) Third, he contends that the NFLP A refused to provide him with documents to which he was entitled. (Id. at 19.) And fourth, Johnson alleges that the NFLPA colluded with the NFLMC and retaliated against him for his critical comments in the media. (Id. at 21.) Because Johnson has not plausibly alleged that any of this conduct was both "arbitrary, discriminatory, or in bad faith" and that it "seriously undermined" the arbitral process, his claim for a breach of the duty of fair representation cannot stand. Barr, 868 F.2d at 43. The Supreme Court has elaborated upon each of the categories of wrongful conduct that may constitute a breach of the duty of fair representation. The Court has explained that union actions qualify as arbitrary "only if, in light of the factual and legal landscape at the time of the union's actions, the union' s behavior is so far outside a wide range of reasonableness as to be irrational." 0 'Neill, 499 U.S. at 67 (internal quotation marks and citation omitted). A union' s actions are discriminatory if "substantial evidence" indicates that discriminatory conduct was •'intentional, severe, and unrelated to legitimate union objectives." Amalgamated Ass 'n of St. , Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971); see also Vaughn, 604 F.3d at 709. Finally, bad faith includes "fraud, dishonesty, and other intentionally misleading conduct," and requires that the plaintiff prove the union acted with "an improper intent, purpose, or motive." Spellacy, 156 F.3d at 126. a. Unratified Deviations from the Policy Johnson alleges a panoply of "unratified deviations" from the Policy, but none constitutes a breach of the duty of fair representation. As an initial matter, Johnson attempts to attribute arbitrariness and bad faith to these deviations by framing them as violations of the NFLPA's own internal constitution, since none of them was ratified by the NFLPA ' s membership. However, while Section 6.05 of the NFLPA' s internal constitution does provide that ratification is required in order to "amend a Collective Bargaining Agreement during the period of its agreed duration," the same section preserves the NFLPA 's right to ··enter into side letters and/or other documents, including the resolution of grievances, which clarify or interpret the provisions of any existing Collective Bargaining Agreement or are necessary to the orderly A district cou11's review of union conduct for alleged breaches of the duty of fair representation is '•highly deferential, recognizing the wide latitude that [unions] need for the effective perfonnance of their bargaining responsibilities." 0 'Neill, 499 U.S. at 78. The Second Circuit has further explained that '·[t]actical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union·s part does not give rise to a breach." Vaughn , 604 F.3d at 709 (citation omitted). IO SPA-12 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 11 of 22 implementation and administration of a Collective Bargaining Agreement." (Doc. No. 116, Ex. 22 § 6.05.) reasonable-cause testing program. (Compl. 69- 81, 121.) Here, too, Johnson is unable to demonstrate a breach of the duty of fair representation. Johnson has not pleaded any facts to suggest that the agreedupon timeline for the two-year reasonablecause testing period was "discriminatory," since all players, not just Johnson, were equally subject to the NFLPA and NFLMC' s interpretation of this section of the Policy. Likewise, Johnson has not alleged facts suggesting any fraud, dishonesty, or misleading conduct that would pennit an inference of bad faith. Nor has Johnson established that the parties' interpretation of Section 3.1 was "arbitrary." ,r,r Each of the deviations alleged by Johnson plausibly falls within the realm of being "necessary to the orderly implementation and administration" of the Policy, given that, at the time of Johnson ' s arbitration, the NFLPA and NFLMC were engaged in an ongoing process of implementing the newly agreed-upon policy. For example, the first deviation to which Johnson points is the side agreement between the NFLPA and the NFLMC permitting directors of the UCLA Olympic Analytical Laboratory and the Sports Medicine Research and Testing Laboratory to fulfill the certification responsibilities of the Chief Forensic Toxicologist. (Comp!. ,r,r 95- 99, 120.) But far from "seriously undermining" the arbitral process, this '·deviation" in fact was intended to facilitate the arbitration. Dr. Finkle, the designated Chief Forensic Toxicologist in the 2015 Policy, retired from the position in 2015. (See Compl. ,r 97.) Rather than suspend all arbitrations or subject Johnson to an excessive delay, the NFLPA and NFLMC agreed to a substitute forensic toxicologist who was acceptable to all parties as an interim measure until a new, pennanent Chief Forensic Toxicologist could be appointed. (Doc. No. 59, Ex. 9.) As a result, this accommodation was necessary to the orderly implementation of the policy, and in no way undennined the arbitral process. Section 3.1 of the Policy, which to be sure is not a model of clear draftsmanship, states: Players who are placed into the reasonable cause program based on a violation of the Policy must remain in the program a minimum of two years or two full seasons, whichever the is shorter, after which Independent Administrator must either discharge the Player or notify him in writing that he will remain in the program subject to review at a later date. Johnson maintains that he was not properly in the reasonable-cause testing program at the time of the July 12, 2016 test because the "two years or two full seasons" mark had elapsed without a properly-timed notification that he would remain in the program. He thus casts the NFLPA' s refusal to advance this argument as '·[r]edefining the period of time a player can be kept in the reasonable cause testing program," thus constituting a "substantive and material deviation from the tenns of the 2015 Policy." (Comp!. ,r 121.) The next ·'deviation"' with which Johnson takes issue is the agreement between the NFLPA and the NFLMC regarding the interpretation of Policy Section 3.1 , which dictates the permissible duration of a player's placement in the 11 SPA-13 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 12 of 22 and eighteen months more to select a third. (See Doc. No. 113 at 3-6.) Johnson filed his timely appeal of the NFLMC's disciplinary decision during the period between the selection of the second and third arbitrators. (See Compl. ,i 57.) Johnson's allegation that the NFLPA permitted a deviation from the three-arbitrator requirement in his case amounts to a claim that the NFLPA 's timeline for filling the positions was arbitrary. While from Johnson's perspective it may have been preferable or even wise for the NFLP A and the NFLMC to choose three arbitrators more quickly - or at least prior to the arbitration of any disciplinary appeals their decision to do so in stages was not irrational. Again, the NFLPA retains "wide latitude" in its role representing employees, and nothing in Johnson's allegations pushes the NFLPA 's timeline for appointing arbitrators into the realm of the arbitrary. As to the fact that (I) the Notice Arbitrator was appointed by the NFLPA and the NFLMC rather than by the arbitrators, and (2) the NFLPA and NFLMC, rather than the Notice Arbitrator, scheduled and assigned arbitrators to appeals (Doc. No. 116 at 4), Johnson cannot plausibly claim that these alleged deviations undermined his arbitral process, since he does not plead any facts to suggest that his arbitration was affected in any way by the manner in which it was scheduled or the method of choosing the Notice Arbitrator. However, as the Arbitrator pointed out, the NFLPA and NFLMC interpreted the language "placed into the reasonable cause program" as referring to the moment when a player's name is actually removed from the general random testing pool and his reasonable-cause testing is initiated. (Award ,i 6.12-6.15.) Under that interpretation, the timing of Johnson's test was proper. Johnson has not set forth facts establishing why this interpretation of the Policy is arbitrary, let alone "so far outside a wide range of reasonableness as to be irrational." 0 'Neill, 499 U.S. at 67 (internal quotation marks and citation omitted). In the absence of plausible claims of arbitrary, discriminatory, or bad faith conduct, Johnson's claim fails. Johnson next challenges the NFLPA · s failure to insist on compliance with the provisions relating to arbitrator selection, including the establislunent of a pool of three arbitrators, the designation of a Notice Arbitrator responsible for the scheduling and assignment of appeals, the requirement that arbitrators have no connection to the NFL, and the approval of a set of testing collection procedures. (Compl. ,i,i 115- 119.) Here, too, Johnson is unable to demonstrate a breach of the duty of fair representation. For example, the fact that Johnson's arbitrator was drawn from a pool of two arbitrators, rather than the three required by the Policy, was neither discriminatory since all players were equally affected by the composition of the arbitrator pool - nor arbitrary. True, the NFLPA and the NFLMC were jointly tasked with choosing " no fewer than three but no more than five arbitrators" to hear certain appeals under the 2015 Policy. (Policy§ 9.) But it took them six months to choose the first arbitrator, three more months to agree upon a second, With respect to the NFLPA's choice of James Caiter to serve as the Arbitrator, Johnson once again cannot establish arbitrary, discriminatory, or bad faith conduct. Johnson objects that at the time of Johnson· s arbitration, Carter had also been approved to serve as an arbitrator under a separate NFLMC-NFLPA policy, and was employed by a law fitm, WilmerHale, which represented the NFL in other capacities. (See Comp!. ,i,i 175- 190.) As with the other 12 SPA-14 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 13 of 22 deviations to which Johnson points, the selection of Carter as one of the pool arbitrators affected all players equally, ruling out the possibility of discrimination, and Johnson does not allege facts that plausibly support a finding that the NFLPA ·s decision to waive these alleged conflicts amounted to bad faith. As for arbitrariness, in light of the minimal nature of the Arbitrator's conflicts as well as the fact that Carter was eminently wellqualified, Johnson cannot establish that the NFLPA's choice of Arbitrator Carter was "so far outside a wide range of reasonableness as to be irrational." 0 Neill, 499 U.S. at 67 (internal quotation marks and citation omitted). undermined the arbitral process, he has failed to make out a violation of the duty of fair representation. b. Failure to Investigate and Support Johnson' s second basis for claiming a breach of the duty of fair representation the NFLP A' s failure to investigate Johnson' s discipline and its general unsupportiveness during his arbitration fares no better than the first, since Johnson cannot establish that this alleged conduct by the NFLPA "seriously undermined'. the arbitral process. As an initial matter, Johnson' s efforts to establish causation between the NFLPA's conduct and the arbitral outcome are made more difficult by the unusual nature of his hybrid claim. Significantly, Johnson' s claim differs from typical hybrid LMRA/NLRA actions in that the NFLP A did not retain sole authority to pursue employee grievances. Cf Vaca v. Sipes, 386 U.S. 171, 185 (1967) (creating the hybrid LMRA/NLRA action where "the union has sole power under the contract to invoke the higher stages of the grievance procedure, and . . . the employee-plaintiff has been prevented from exhausting his contractual remedies by the union ' s wrongful refusal to process the grievance" (emphasis added)). While establishing causation is relatively straightforward in a case where the union reserved the exclusive right to pursue grievances, an employee faces a higher burden where, as here, the employee was able to pursue his claim directly, rather than relying wholly upon the union. See, e.g. , Spellacy, I 56 F.3d at 129 (finding no violation of the duty of fair representation despite alleged misrepresentations by the union where employees "knew [the union' s] position in time to challenge its decision .. and '•hired attorneys to file grievances" ). Johnson is unable to meet that burden here. The final deviation identified by Johnson is the NFLPA's failure to create or approve ·'procedures for the handling of NFL Player specimens following laboratory analysis" to "ensure the destruction of negative specimens within 90 days of analysis and positive specimens within 30 days of final adjudication of a Player' s discipline.'' (Comp!. ,r 135; Policy § 16.) But once again, it cannot be argued that the alleged failure to create or approve these procedures prior to Johnson' s arbitration had the effect of "seriously undermin[ing]" the arbitral process. The Arbitrator specifically found that any such deviation would not have "materially affected the accuracy or reliability of the test result" (Award ,r 6.30), and Johnson has pleaded no facts to suggest that the failure to promulgate such procedures impacted the outcome of his arbitration in any way, let alone "seriously undermined" the process. Thus, because Johnson has not pleaded sufficient facts to plausibly suggest that any of the NFLPA ' s alleged deviations from the Policy constituted arbitrary, discriminatory, or bad faith conduct that seriously 13 SPA-15 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 14 of 22 As to Johnson's vague allegation that the NFLP A '•failed to investigate" his claims (Doc. No. I 09 at I 8- 19), he cannot plausibly suggest that this failure "seriously undennined'" his arbitration when he had his own team of three attorneys pursue an investigation on his behalf. Likewise, the fact that the NFLP A did not advance Johnson's argument regarding the timeliness of his reasonable-cause test fails for lack of causation. While a union may not "arbitrarily ignore a meritorious grievance or process it in perfunctory fashion," Spellacy, 156 F.3d at 128 (quoting Vaca, 386 U.S. at 191), the NFLPA' s failure to pursue the two-year limitations argument could not have "seriously undermined" the arbitral process because the Arbitrator did not rely on the NFLPA 's silence in coming to his conclusions. Rather, he drew on the text of the policy itself (Award ,r,r 6.12, 6.19 (interpreting "placed into the reasonable cause testing program")), Johnson' s own understanding of the reasonable-cause testing program (id. ,r 6.16), and the Independent Administrator's understanding of the program (id. ,r,r 6.13, 6.19). In light of these other sources of evidence, the NFLPA's silence on the subject cannot have seriously undennined the fairness of Johnson's arbitration. someone other than the Chief Forensic toxicologist did not materially affect the test result), 6.30 (purported deviations as to destruction of specimens would not have materially affected the test result if they took place), 6.35 (there was "no evidence" that purported deviations from the Policy as to testing personnel would have materially affected the test result), 6.41 (testimony as to laboratory protocols did not rebut the prima facie case for a valid test).) And in considering Johnson's affirmative defense that the presence of the prohibited substance leading to the test result ·'was not due to his fault or negligence" - the Arbitrator found Johnson's own admissions dispositive. (Id. ,r 6.59.) Given the weight the Arbitrator placed on considerations that could not have been affected even by enthusiastic representation by the NFLPA, and given that Johnson, unlike most employees bringing such claims, vigorously pursued his own appeal, Johnson has failed to allege facts establishing that the NFLPA 's conduct could have "seriously undermined the arbitral process." Thus, even assuming that the union acted arbitrarily, discriminatorily, or in bad faith by not investigating or being "generally unsupportive,'" this claim must fail as a matter oflaw. Johnson's claim that the NFLPA was generally unsupportive during his arbitration is similarly untenable. Just like the reasoning regarding the Arbitrator's timeliness of Johnson's reasonable-cause test, the Arbitrator' s reasoning throughout the rest of the A ward also drew on sources unconnected to the NFLPA to conclude that Johnson 's appeal was unjustified. In evaluating the prima facie case for the validity of the test, the Arbitrator repeatedly found that any deviations "did not materially affect the accuracy or reliability of the test result.'· (Id. ,r,r 6.27 (certification by c. Failure to Provide Documents Jolmson next alleges that the NFLPA's refusal to provide him with copies of ( 1) the side agreements between the NFLPA and the NFLMC, (2) documents regarding Johnson's testing history, and (3) documentation of lab protocols denied him the fair representation to which he was entitled. This claim necessarily fails on the causation prong. Although Johnson argues that the documents in question were '·germane'· to the Arbitrator' s decision (Doc. 14 SPA-16 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 15 of 22 No. 1 12 at 2 I), and it is true that the Arbitrator directly referenced the side agreement authorizing an interim replacement for the Chief Forensic Toxicologist in his Award (Award ,i 6.27), Johnson nevertheless fails to draw any causal link between the NFLPA's failure to provide him with these documents and the arbitral outcome. of operations under the present Policy and its predecessors, there is no known case in which an observing toxicologist was provided with documents other than the standard documentation package provided for in the Policy.").) d. Collusion and Retaliation Johnson· s final argument, that the NFLPA breached its duty of fair representation by colluding with the NFLMC and retaliating against Johnson, is equally unavailing. To support this claim, Johnson states that he publicly complained about the inadequacy of the union's representation, which was then reported in the media. (Compl. ,i,i 123-124.) Taking exception to Johnson·s media statement, the NLFPA - according to Johnson - falsely stated that the union had been in touch with Johnson and his agent to clarify the facts. (Id. ,r,i 125- 126.) Following Johnson' s appeal, the NFLMC noted in an email to NFLPA attorneys that Johnson was '·less than thrilled with the NFLPA" and proposed that the NFLMC and NFLPA discuss his (Id. ,i 129.) Johnson also appeal. conclusorily asserts that NFLPA representatives Heather McPhee and Todd Flanagan colluded with Kevin Manara of the NFLMC. (Id. ,J 217- 218). As discussed above, the NFLP A was entitled under its constitution to enter into side agreements to facilitate the implementation and administration of the Policy. Because Johnson offers no explanation for why the Arbitrator's ruling could have been affected had Johnson been provided with a copy of the side letters, Johnson cannot satisfy the demanding burden of demonstrating that the NFLPA's failure to do so "seriously undermined" the arbitral process. This causal link is similarly absent as to the NFLPA's alleged failure to provide documentation of Johnson's testing history. Given that Johnson made a robust and detailed argument about the timeline of his testing, which was ultimately found unpersuasive by the Arbitrator based on the wealth of reasoning described above, Johnson has not plausibly alleged that any failure to provide fm1her documentation of his testing timeline affected the arbitral outcome. But the misconduct alleged by Johnson simply restates the ·'conduct that the Court has concluded is otherwise lawful, followed by an entirely conclusory accusation of conspiracy and bad faith.'" Bejjani, 2013 WL 323 7845, at * 14. The law is clear that such threadbare attempts to •'infus[e] . . . otherwise-lawful actions with bad faith'" through allegations of collusion or retaliation are not sufficient to state a claim for the breach of the duty of fair representation. Id. at 16. As for the laboratory protocols, the Arbitrator's finding that a "toxicological observer is not authorized to audit all of the testing laboratory's procedures, and [that] discovery of documents requested for such a purpose [is] not permitted by the Policy" forecloses the possibility that the arbitral process was '·seriously undermined" by the refusal to provide those documents. (A ward ,i 6.40; see also id. ,i 6.39 ('·During 26 years 15 SPA-17 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 16 of 22 Where a plaintiff fails "to allege familiar aspects of a conspiracy, such as who was involved, and when and where these individuals met and conspired," the plaintiff fails to clear the Twombly threshold for surviving a motion to dismiss. Id.; see also, e.g., Peoples v. Fischer, No. l 1-cv-2694 (SAS), 2011 WL 6034374, at *3 (S.D.N.Y. Dec. 1, 2011) ("[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed." (citation omitted)). motion to dismiss is GRANTED as to Johnson's duty of fair representation claims (Counts Eight and Ten), as well as Johnson' s claim for declaratory relief (Count Eleven). 2. LMRDA Johnson also brings a claim under Section l 04 of the LMRDA, alleging that the NFLP A violated this provision by refusing to provide, upon request, a copy of the full operative collective bargaining agreement. Section 104 of the LMRDA provides that a union must '·forward a copy of each collective bargaining agreement made by such labor organization with any employer to any employee who requests such a copy and whose rights as such employee are directly affected by such agreement.'· 29 U.S.C. § 414. Johnson alleges that the NFLP A refused to provide Johnson with all side agreements that modified the 2015 Policy, despite his requests for those documents. (Comp!. ,-r 310.) Here, Johnson at most identifies the "who" of his alleged conspiracy, with perhaps a sliver of a "why." However, the complaint ultimately suffers from a dearth of concrete facts and therefore "stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quotation marks omitted). Aside from naming the individuals Johnson believes engaged in collusion, Johnson merely repeats the allegations of conduct that did not amount to violations of the duty of fair representation for the reasons explained above. "In the absence of subsidiary allegations fleshing out an agreement to retaliate" against Johnson, "the bare and conclusory allegation" that the NFLPA "manifested bad faith by conspiring with" the NFLMC "does not rise above Twombly's plausibility threshold." Bejjani, 2013 WL 3237845, at *15. * * The NFLP A seeks dismissal of Johnson ' s claim, arguing that it was under no obligation to immediately provide the side agreements, that Johnson had sufficient access to the operative version of the agreement, and that his rights were not "directly affected" by the side agreements. (Doc. No. 109 at 23-24.) These arguments are unpersuasive. First, the NFLPA' s assertion that the LMRDA does not require the NFLPA to "make an instant mailing to its 2,000 members" every time the NFLP A and NFL reach some agreement (Doc. No. 112 at 23) misses the mark. Far from seeking an •'instant mailing'· to all members - an action not contemplated in the LMRDA, which requires the provision of documents only "on request" - Johnson simply asserts that the NFLPA refused to * Because Johnson cannot, as a matter of law, establish that the NFLP A engaged in arbitrary, discriminatory, or bad faith conduct that seriously undennined the arbitral process, he has failed to establish that the NFLPA breached its duty of fair representation. Accordingly, the NFLPA' s 16 SPA-18 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 17 of 22 comply with its statutory duty to accommodate his specific request for the documents in question. mooting their LMRDA claims. While courts have treated claims under Section I 04 of the LMRDA as moot once the plaintiff has received a copy of the full collective bargaining agreement - even if that receipt occurred during the course of litigation Johnson maintains that he has still not received a copy of all side agreements. (Comp!. ,i 313.) Indeed, although the NFLPA attached the side agreement relating to the role of the Chief Forensic Toxicologist to its memorandum of law in opposition to Johnson' s motion to vacate the arbitral award (Doc. No. 113, Ex. 9), the NFLP A has still not produced a copy of the side agreement relating to the bargaining pai1ies' interpretation of the timeline for reasonable-cause testing. Johnson's claim is therefore not moot. Moreover, the NFLP A's assertion that the side agreements are not an operative part of the Policy is similarly unconvincing. Though the Court determined above that the modifications of the policy were not required to be ratified under the NFLPA ' s internal constitution, these modifications nevertheless affected the functioning of the Policy and were therefore "operative" components of that Policy. The NFLPA's citation to Summerville v. Local 77, 369 F. Supp. 2d 648 (M.D.N.C.), aff'd, 142 F. App'x 762 (4th Cir. 2015), is therefore inapposite. There, unlike here, plaintiffs sought a copy of future, rather than present! y operative, modifications. See id. at 658-59. The Court thus finds that Johnson has stated a plausible claim for relief based on a violation of the LMRDA. 3 Accordingly, the NFLPA' s motion to dismiss is DENIED as to Count 9, Johnson's LMRDA claim. Along the same lines, the NFLPA's assertion that the side agreements do not ..directly affect'" Johnson' s rights falls flat. The LMRDA 's requirement that an agreement "directly affects" the rights of an employee encompasses, on its face, even agreements that merely interpret existing prov1s10ns of a collective bargaining agreement. Because the NFLPA altered the contours of its relationship with its members via the side agreements in question, Johnson's rights were directly affected by them, and Johnson was entitled to copies. Ill. JOHNSON'S PETITION TO VACATE THE ARBITRAL AW ARD Having resolved the NFLP A' s motion to dismiss Johnson's claims against the NFLPA for breach of the duty of fair representation and violations of the LMRDA, the Court now turns to Johnson' s petition to vacate the Arbitral Award. Finally, because Johnson has still not received a copy of the full operative Policy, the NFLPA' s citations to Gonzalez v. Local 32BJ, SEIU, No. 09-cv-8464 (SHS) (RLE), 2010 WL 3785436 (S.D.N .Y. Sept. 7, 2010) and Mazza v. Dist. Council of NY. , No. cv00-6854 (BMC) (CLP), 2007 WL 2668116 (E.D.N.Y. Sept. 6, 2007) are misplaced. (Doc. No. 109 at 23 n.15.) In those cases, the plaintiffs ultimately received a copy of the collective bargaining agreement, thereby .. A federal court's review of labor arbitration awards is narrowly circumscribed and highly deferential - indeed, among the most deferential in the law." Nat 'I Football 3 Of course, given that claims under Section I 04 of the LMRDA are mooted when the plaintiff receives a copy of the agreement in question, see, e.g. , Gonzalez, 2010 WL 3785436 at *4, the onl y relief to whic h Johnson would be entitled is a copy of the agreement and side letters in question. 17 SPA-19 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 18 of 22 League Mgmt. Council v. Nat'! Football league Players Ass 'n (Brady), 820 F.3d 527,532 (2d Cir. 2016). A court's role "is not to detennine for [itself]" the merits of the underlying dispute or to "second-guess the arbitrator's procedural rulings." Id. Rather, a court's "obligation is limited to detennining whether the arbitration proceedings and award met the minimum legal standards" established by the LMRA. Id. Accordingly, courts ·'must simply ensure that the arbitrator was 'even arguably construing or applying the contract and acting within the scope of his authority' and did not ' ignore the plain language of the contract. "' Id. (quoting United Paperworks Int 'I Union v. Misco, Inc., 484 U.S. 29, 38 (1987)). This inquiry "does not require perfection in arbitration awards," but rather ' •dictate[s] that even if an arbitrator makes mistakes of fact or law, [a court] may not disturb an award so long as he acted within the bounds of his bargained-for authority." Id. Thus, if an arbitral award "draws its essence from the collective bargaining agreement and is not merely an exercise of the arbitrator' s own brand of industrial justice," the award must stand. Int '/ Bhd. of Elec. Workers v. Niagara Mohawk Power Corp., 143 F.3d 704, 714 (2d Cir. 1998) (quotations omitted). In light of this ··substantial deference,·· only '"exceptional" cases warrant vacatur. Brady, 820 F.3d at 532. review described by the Second Circuit in Brady. Johnson's pet1t1on sets forth numerous bases for vacating the Award, including (I) ·'manifest disregard'' of the Policy, and a related argument for vacatur based on the Arbitrator exceeding his powers; (2) "evident partiality" based on the Arbitrator's alleged bias and failure to disclose his conflicts; (3) lack of fundamental fairness; and (4) a rehash of his allegations that the NFLPA and NFLMC breached the duty of fair representation and the collective bargaining agreement, respectively. As a threshold matter, Johnson derives several of his stated grounds for vacatur from the Federal Arbitration Act ("FAA"). The Second Circuit has held that "[t]he FAA does not apply to arbitrations ... conducted pursuant to the LMRA." Brady, 820 F.3d at 545 n.13. And while ''the federal courts have often looked to the [FAA] for guidance in labor arbitration cases,'" id. (quoting Misco, 484 U.S. at 40 n.9), the Second Circuit has explicitly declined to hold that the FAA requirement of " fundamental fairness·' and its "evident partiality" standard for vacatur apply in the LMRA context. Id. ; see also id. at 518 n.16. Indeed, ..there are reasons for a court to be hesitant'· when asked to incorporate FAA standards into the federal common law governing vacatur under the LMRA. Nat 'I Football League Mgm 't Council v. Nat ·1 Football League Players Ass ·n, 296 F. Supp. 3d 614, 622 (S.D.N.Y. 2017). The "contextual differences" between arbitrations under the FAA and the LMRA warrant caution, as '·courts should be more deferential to arbitrators in the context of labor disputes than other commercial disputes," since under the FAA '·arbitration is the substitute for litigation,'· while under Although it could be argued that a union' s breach of its duty of fair representation would justify a less deferential standard of review for an arbitral award - perhaps even warranting per se vacatur - no court has addressed that issue. In any event, the Court need not reach that question because, as detennined above, Johnson has failed to state such a claim. Accordingly, Johnson' s petition is subject only to the highly limited and deferential 18 SPA-20 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 19 of 22 the LMRA "it is the substitute for industrial strife.'. Id. (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co. , 363 U.S. 574, 578 (1960)). to the bargaining parties - namely, the NFLP A and the NFLMC - and not to Johnson individually. Since the parties authorized Arbitrator Carter to preside over the proceeding, it can hardly be argued that the arbitrator selection process constituted " manifest disregard·' of the Policy. Given the Court' s finding that the NFLPA did not violate its duty of fair representation, the finality of the arbitral award must not be disturbed on this basis. But even if the FAA-based standards cited by Johnson are relevant, they can serve only to elucidate - rather than supplant - the Brady standard for vacatur under the LMRA in this Circuit. Under that demanding standard, Johnson cannot make the necessary showing to warrant vacatur of the arbitral award. Johnson' s claim that the Arbitrator improperly applied the Policy' s burden of proof likewise fails. Asking this Court to vacate the arbitral award due to perceived flaws in the Arbitrator' s analysis of the burden of proof amounts to an attempted relitigation of the merits of Johnson' s claim - an exercise explicitly foreclosed by the Supreme Court. See United Steelworkers of Am. v. Enter. Wheel & Car Corp. , 363 U.S. 593, 596 (1960) ("The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.'') 1. Manifest Disregard Borrowing language from the FAA context, Johnson first argues that the arbitral award must be vacated because the Arbitrator was in " manifest disregard" of the Policy. (Doc. No. 110 at 12.) Johnson again points to the arbitrator selection process, the failure to apply the Policy' s burden-shifting scheme, and the Arbitrator's reliance on infonnation that was not provided to Johnson as sufficient departures from the Policy to warrant vacatur. But even assuming the FAA standard applies, "awards are vacated on grounds of manifest disregard only in ·those exceedingly rare instances where some egregious impropriety on the part of the arbitrator is present."' Sutherland Glob. Servs. v. Adam Techs. , 639 F. App' x 697, 699 (2d Cir. 2016) (quoting T Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 339 (2d Cir. 2010)). Under Brady, as long as the Arbitrator was '·arguably construing or applying the contract and acting within the scope of his authority," the arbitral award must remain intact. Brady, 820 F.3d at 532. Similarly, Johnson ' s argument that vacatur is warranted because the Arbitrator relied on infonnation never provided to Johnson amounts to a request for this Court to substitute its own procedural ruling for that of the Arbitrator. Once again, " [i]t is well settled that procedural questions that arise during arbitration, such as which witnesses to hear and which evidence to receive or exclude, are left to the sound discretion of the arbitrator and should not be second-guessed by the courts." Brady, 820 F.3d at 545. Indeed, the Supreme Court has made clear that the highly deferential posture of a federal court reviewing an As to Johnson' s claims of •'improper cherry picking" in arbitrator selection (Doc. No. 110 at 13), his claims rise and fall with his duty of fair representation claim. Here, the Policy allocated the choice of arbitrator 19 SPA-21 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 20 of 22 arbitral award pursuant to the LMRA becomes still more deferential as to procedural questions. See Misco, 484 U.S. at 40 ("[W]hen the subject matter of a dispute is arbitrable, ·procedural' questions which grow out of the dispute and bear on its final disposition are to be left to the arbitrator.") Because Johnson's argument would require the Court to override the arbitrator's evidentiary rulings with its own view of the merits, the Court declines to vacate the arbitral award on this basis. In alleging evident partiality, Johnson points to the Arbitrator's failure to disclose conflicts involving himself and his finn in other NFL-related matters and argues that his discovery rulings demonstrated bias that warrants vacatur of the arbitral award. But as noted above, the alleged conflicts were disclosed to - and waived by - the relevant parties to the collective bargaining agreement, the NFLP A and the NFLMC. Furthermore, Johnson's claims regarding the Arbitrator's discovery rulings once again require second-guessing the merits of the Arbitrator's procedural and evidentiary rulings - an exercise that is plainly off-limits under Second Circuit and Supreme Court precedent. But even considering those rulings on the merits, the Court cannot say that any of them reflects even the hint of bias against Johnson. Johnson has thus fallen far short of the evident partiality standard for vacatur, under which a reasonable person would "have to"' conclude that an arbitrator was biased and that the award should not be afforded its usual Applied Indus. presumption of finality. Materials Corp., 492 F.3d at 137 (emphasis added). Johnson thus fails to establish that the Award was so detached from the Policy, or undertaken in "manifest disregard" of the Policy, that vacatur is warranted. 4 2. Evident Partiality Johnson next seeks vacatur on the grounds of '·evident partiality," another import from the FAA. (Doc. No. 110 at 15.) Under that standard, courts may vacate an arbitration award "where there was evident partiality ... in the arbitrator[]." 9 U.S.C. § I 0(a)(2). '·Evident partiality may be found only 'where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.··· Scandinavian Reins. Co. Ltd. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 64 (2d Cir. 2012) (quoting Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S., 492 F.3d 132,137 (2d Cir. 2007)). '·The party seeking vacatur must prove evident partiality by 'clear and convincing evidence."' Brady, 820 F .3d at 548 (quoting Kole! Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, I 06 (2d Cir. 2013)). 3. Fundamental Fairness Johnson next points to the freestanding ·'fundamental fairness" standard for vacatur under the FAA. (Doc. No. 110 at 22.) Under that standard, an award may be vacated if "the arbitrators were guilty of misconduct ... in refusing to hear evidence pertinent and material to the controversy," 9 U.S.C. § IO(a)(3), that undennined the '·fundamental fairness" of the proceeding. Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997). However, the notion of fundamental fairness - which, as discussed above, may well have no place in a court's review of arbitral awards under the LMRA, see NFL Mgm 't Council, 296 F. 4 Johnson also claims that the Arbitrator "exceeded his powers throughout the arbitration." (Doc. 110 at 21.) Because this claim is premised on the same arguments that were considered and rejected above, those claims necessarily fail for the same reasons. 20 SPA-22 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 21 of 22 Supp. 3d at 623 - cannot bear the weight Johnson places upon it. Once again, Johnson merely repackages the same claims detailed above, which failed to warrant vacatur on their own, and hopes that reciting them again may somehow amount to a violation of '·fundamental fairness." At bottom, Johnson challenges two aspects of his award: the arbitrator selection process and the procedural and substantive rulings made by the Arbitrator. The first category cannot constitute a violation of fundamental fairness where the NFLP A represented Johnson and, in its capacity as the relevant bargaining party, agreed to and was aware of all aspects of the selection procedure that Johnson now frames as unfair. Because Johnson failed to demonstrate that the NFLP A breached its duty of fair representation, he cannot now seek to revive those failed arguments under the guise of "fundamental fairness. " NFLPA, and is therefore unable to make any claims against the NFLMC for violation of the collective bargaining agreement, those claims cannot fonn a separate basis for vacatur of the Award. See White, 23 7 F .3d at 83; Roy, 682 F. App' x at 44. Accordingly, Johnson' s pet1t1on to vacate the arbitral award must be DENIED. IV. CONCL USION Johnson is obviously dissatisfied with the Arbitrator' s ruling and unhappy with the And like a perfonnance of his union. Monday morning quarterback, he has scoured every inch of the record in search of imperfections, anomalies, and errors in judgment to justify overturning the result. However, the law is clear that arbitration awards are not to be lightly overturned, and that tactical errors, mistakes of fact or law, and even negligence are not enough to warrant vacatur. Perfection is not required. Here, Johnson has failed to allege any facts suggesting that the NFLPA breached its duty of fair representation to Jolmson. Nor has he demonstrated that the Arbitrator' s Award fell below the minimum legal standards established by the LMRA. Accordingly, for the reasons discussed above, IT IS HEREBY ORDERED THAT the NFLPA ' s motion to dismiss is GRANTED as to Johnson's duty of fair representation claims and his claim for declaratory relief, and DENIED as to Johnson' s LMRDA claim. Johnson' s petition to vacate the arbitral award is DENIED, and the arbitral award is therefore CONFIRMED. As to the second category, Johnson is unable to show that the Arbitrator' s rulings were so far afield that the award failed to '·draw(] its essence from the collective bargaining agreement," thus constituting the Arbitrator' s "own brand of industrial justice.'· Int'/ Bhd. of Elec. Workers, 143 F.3d at 714. Having reviewed the Arbitrator' s decision, the Court perceives no independent violation of '·fundamental fairness" that could require overturning the arbitral award. 4. Alleged Violations by the NFLPA and NFLMC Johnson' s final claim, that vacatur is necessitated by the NFLPA' s breach of its duty of fair representation and the NFLMC's breach of the Policy (Doc. No. 110 at 22), has already been rejected. Because Johnson failed to state a claim for a breach of the duty of fair representation against the IT IS FURTHER ORDERED THAT the parties shall submit a joint letter to the Court no later than Thursday, October 18, 2018 regarding proposed next steps with respect to Plaintifrs remaining LMRDA claim and Plaintiff's unanswered claims against the NFLMC. 21 SPA-23 Case 1:17-cv-05131-RJS Document 125 Filed 10/03/18 Page 22 of 22 The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 107 and I 08. SO ORDERED. RICHARD J. SULLIVAN United States District Judge Dated: October 3, 2018 New York, New York * * * Plaintiff David Lane Johnson is represented by David R. Vance, Patrick J. Hoban, and Stephen S. Zashin, Zashin & Rich Co., L.P .A., 950 Main Avenue, 4th Floor, Cleveland, Ohio 44113. Defendant National Football League Players Association is represented by David Greenspan, Jeffrey L. Kessler, Jonathan J. Amoona, and Isabelle Louise MercierDalphond, Winston & Strawn LLP, 200 Park Avenue, New York, New York 10166. Defendants National Football League and National Football League Management Council are represented by Daniel L. Nash, Akin Gump Strauss Hauer & Feld LLP, Robert S. Strauss Building, 1333 New Hampshire Avenue, N.W., Washington, District of Columbia 20036; Estela Diaz and Mary Christine Slavik, Akin Gump Strauss Hauer & Feld LLP, One Bryant Park, New York, New York 10036; and Frederick R. Nance, Jr. and Philip Michael Oliss, Squire Patton Boggs LLP, 4900 Key Tower, 127 Public Square, Cleveland, Ohio 44114. 22 SPA-24 Case 1:17-cv-05131-RJS Document 131 Filed 10/23/18 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK \t) ll 3 / lg DAVID LANE JOHNSON, Plaintiff, -v- No. 17-cv-5131 (RJS) ORDER NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, et al., Defendants. RICHARD J. SULLIVAN, District Judge: The Court is in receipt of the parties' joint letter (Doc. No. 126), as well as subsequent communications from Plaintiff David Lane Johnson (Doc. Nos. 127, 129) and Defendants National Football League Players Association (the "NFLPA"), National Football League (the "NFL"), and the National Football League Management Council (the "NFLMC") (Doc. Nos. 128, 130). Given the posture of the case, the Court finds that a pre-motion conference is not necessary for either of the motions contemplated by Defendants. Plaintiffs Labor Management Reporting and Disclosure Act (" LMRDA") claim turns on the question of whether the NFLPA ' s October 16 document production has mooted the claim. Therefore, the Court finds that further discovery is not appropriate, and IT IS HEREBY ORDERED THAT discovery remains stayed in this case. IT IS FURTHER ORDERED THAT the NFLPA shall file its motion for summary judgment by November 9, 2018, Plaintiff shall file its opposition by Friday, November 30, 2018, and the NFLP A shall file its reply, if any, by Wednesday, December 12, 2018. The NFLPA' s time to answer Plaintiffs complaint is adjourned pending resolution of its motion. SPA-25 Case 1:17-cv-05131-RJS Document 131 Filed 10/23/18 Page 2 of 2 As to Johnson's claims against the NFL and NFLMC (the "NFL Defendants"), IT IS HEREBY ORDERED that the NFL Defendants shall file their motion to dismiss by Friday, November 2, 2018, Plaintiff shall file its opposition by Friday, November 9, 2018, and the NFL Defendants shall file their reply, if any, by Friday, November 16, 2018. The Clerk of Court is respectfully directed to terminate the motion pending at Doc. No. 130. SO ORDERED. Dated: &~ October 23, 2018 New York, New York RICHARD J. SULLIVAN UNITED STA TES DISTRICT JUDGE 2 SPA-26 Case 1:17-cv-05131-RJS Document 145 Filed 11/26/18 Page 1 of 3 t.;s.us ~ 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK I' or.r, · '- ,L DA YID LANE JOHNSON, Plaintiff, No. 17-cv-5131 (RJS) ORDER -v- NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION , el al., Defendants. RICHARD J. SULLIVAN, Circuit Judge: Plaintiff David Lane Johnson brings this action against the National Football League Players Association ('"NFLPA ''), the National Football League (" NFL"), and the National Football League Management Council ("NFLMC"), alleging, inter alia, that the NFLPA breached its duty of fair representation and that the NFL and NFLMC (the '·NFL Defendants'') breached their collective-bargaining agreement with the NFLP A. Now before the Court is the NFL Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure l 2(c), which, because the NFL Defendants have not answered, the Court construes as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 132.) For the reasons stated below, the motion to dismi ss is GRANTED. The Court presumes the pai1ies' familiarity with the underlying facts and procedural hi story of this case, which are set forth in detail in the Court's October 3, 2018 Order. (Doc. No. 125.) SPA-27 Case 1:17-cv-05131-RJS Document 145 Filed 11/26/18 Page 2 of 3 I. LEGAL STANDARD To survive a motion to dismiss pursuant to Rule 12(6)(6), a complaint must "provide the grounds upon which [the] claim rests. " ATS/ Commc ·ns, Inc. v. Shaar Fund, Ltd , 493 F.3d 87, 98 (2d Cir. 2007); see also Fed. R. Civ. P. 8(a)(2) (" A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief .. . ."). To meet this standard, plaintiffs must allege '·enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing a Rule 12(6)( 6) motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATS/ Commc 'ns. 493 F.3d at 98. However, that tenet " is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Thus, a pleading that offers only ·'label s and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. If the plaintiff"ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed." Id. at 570. II. DISCUSSION Plaintiffs claims against the NFL Defendants are part of a " hybrid § 301 /duty of fair representation claim." See, e.g., Carrion v. Enter. Ass 'n, Metal Trades Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000). Specifically, Johnson alleges that the NFL Defendants breached their collective bargaining agreement with the N FLPA in violation of Section 30 1 of the Labor 2 SPA-28 Case 1:17-cv-05131-RJS Document 145 Filed 11/26/18 Page 3 of 3 Management Relations Act ("LMRA"), and that the NFLPA breached the duty of fair representation that is implied under the National Labor Relations Act ("NLRA"). (Doc. No. 39.) Under the hybrid claim framework, a union's " breach [of the duty of fair representation] is a prerequisite to consideration of the merits off a·! plaintiffs claim against [an] employer." Young v. U. S. Postal Serv. , 907 F.2d 305, 307 (2d Cir. 1990). In its September 28, 2018 and October 3, 20 I 8 Orders, the Court granted the NFLP A' s motion to dismiss Plaintiffs claim for breach of the duty of fair representation, and Plaintiff has therefore failed to satisfy the prerequisite for the Court to entertain his claims against the NFL Defendants. (Doc. Nos. I 24, I 25.) Plaintiffs LMRA claim against the NFL Defendants for breach of contract thus fails as a matter of law, as does his claim for declaratory relief. Accordingly, IT fS HEREBY ORDERED THAT the NFL Defendants' motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate the motion pending al Doc. No. I 32, and to terminate the NFL and the NFLMC as defendants in this action. SO ORDERED. Dated: November 26, 2018 New York, New York RICHARD J. SULLIVAN UNITED ST A TES CIRCUIT JUDGE Sitting by Designation 3 SPA-29 Case 1:17-cv-05131-RJS Document 150 Filed 01/09/19 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK t /°' /1 4 DJ\ YID L/\NE JOHNSON , Plaintiff, No. I 7-cv-5131 (R.IS) ORDER -vNATIONAL FOOTBALL LEAGUE PLAYERS ASSOC IATION, et al., Defendants. RICHARD .I. SULLIVAN, Circuit Judge: Now before the Court is Plaintiffs motion for discovery pursuant to Federal Rule of Civil Procedure 56(d). (Doc. No. 141.) For the reasons stated below, the motion is DENIED. I. BACKGROUND On October 3, 2018, the Court granted the motion of Defendant National Footba ll League Players Association ("NFLPA'") to dismiss Plaintiffs First Amended Complaint except as to Plaintiffs claim under Section I 04 of the Labor Management Reporting and Disclosure Act ("'LMRDA'"), which alleged that the NFLPA refused to provide, upon request, a copy of the full operative collective bargaining agreement between the parties. (Doc. No. 125.) In that Order, the Court made clear that the only relief to which Johnson could be entitled under this claim would be a copy of the complete agreement. (Id at 17 n.3.) Subsequently, on October 16, 2018, the NFLPA produced to Plaintiff what the Nf-'LPA describes as ·'a complete copy of the 2015 Policy and al l agreements that modified the 2015 Policy." (Doc. No. 126 at 4.) On October 23 , 2018. the Court issued an order finding that, because Plaintiffs surviving LMRDA claim ·'turns on the question of whether the NFLPA's October 16 document production has mooted the claim ... further di scovery is not appropriate,'' and set a bri e fing schedu le for the NFLPA's motion for summary judgment. (Doc. No. 131.) On November 19, SPA-30 Case 1:17-cv-05131-RJS Document 150 Filed 01/09/19 Page 2 of 3 2018. Plaintiff filed a letter regarding a contemplated motion seeking discovery under Federal Rule of Civil Procedure 56(d). The NFLPA responded on November 26, 2018. (Doc. No. 144.) After directing a reply by Plaintiff, which was filed on December 3, 2018 (Doc. No. 149), the Court deemed the motion made and fully briefed (Doc. No. 146). II. LEGAL STANDARD Where a party subject to a motion for summary judgment shows that it is unable to present facts to oppose the motion, the Court may "( I) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d). To succeed on a Rule 56(d) motion, a party must show"( I) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant's efforts were unsuccessful." Gualandi v. Adams, 385 F.3d 236,244 (2d Cir. 2004). 111. DISCUSSION The Court previously determined that discovery is not appropriate at this stage because Plaintiffs survivi ng LMRDA claim ·'turns on the question of whether the NFLPA's October 16 document production has mooted the claim.'' (Doc. No. 131.) Because Johnson now requests discovery that is not related to his remaining claim and is not proportional to the needs of the case, John so n has furnished no basis for the Court to depart from its earlier determination. Plaintiff's renewed request for discovery misrepresents the scope of his surviving LMRDA claim. Contrary to Plaintiffs assertion, Plaintiffs claims against the NFLPA for "disciplin[ing] or retal iatfing] against Johnson for asserting his rights under the LMRDA'. (Doc. No. 14 1) were dismissed by thi s Court as part of Johnson's duty of fair representation claim (Doc. No. 125 at 15- 16). Plaintiffs lone surviving claim is his claim under Section I 04 of' the LMRDA, which provides that a union must ··forward a copy of each collective bargaining agreement made by such labor organization with any employer to any employee who requests such a copy and whose rights as such employee are directly 2 SPA-31 Case 1:17-cv-05131-RJS Document 150 Filed 01/09/19 Page 3 of 3 affected by such agreement." 29 U.S.C. § 414. Factual questions regarding the motivations and reasons underpinning the NFLPA's conduct with respect to Plaintiffs LMRDA rights are irrelevant to the resolution of Plaintiff's remaining claim. Accordingly, the Court is unpersuaded by Plaintiff's argument that discovery as to "why the NFLPA repeatedly re fused to provide Johnson a complete copy of the 2015 policy'' and ·'why the NFLPA otherwise retaliated against him'' is necessary to resolve the summary judgment motion. (Doc. No. 141.) Similarly, Plaintiff's arguments that discovery is necessary to test the credibility of NfLPA employees. probe the existence of UCLA laboratory collection proceedings, and delve into the details of the operation of the two-year testing period all involve factual issues that do not bear upon the narrow issue of justiciabiIity at the heart of the f NFLPA ·s motion. Accordingly, Plaintif has failed to show facts ''reasonably expected to raise a genuine issue of material fact" and has not met the standard for discovery under Federal Rule of Civil Procedure 56(d). IV. CONCLUSION for the foregoing reasons, Plaintiff's motion for discovery pursuant to Federal Rule of Civil Procedure 56(d) is DENIED. In accordance with the timeline set forth in the Court's November 29. 2018 Order (Doc. No. 148), IT IS HEREBY ORDERED THAT Plaintiff shall respond to the NFLPA 's motion for summary judgment no later than Wednesday, January 16, 2019, and the NFLPA shall file its reply no later than Monday, January 28, 2019. SO ORDERED. Dated: January 9, 2019 New York. New York RICHARD J. SULLI VAN UNITED STATES CIRCUIT JUDGE Sitting by Designation 3 SPA-32 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ,,a.114\ DAYID LANE JOHNSON, Plaintiff, No. 17-cv-5131 (RJS) OPINION & ORDER -v- NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Defendant. RICHARD J. SULLIVAN, Circuit Judge: Now before the Court is Defendant National Football League Players Association's ("NFLPA") motion for summary judgment. (Doc. No. 134.) For the reasons stated below, the motion is GRANTED. I. BACKGROUND The Comt assumes the parties' familiarity with the facts and procedural history of this case, which are set forth in detail in the Comt's October 3, 2018 Opinion and Order. (Doc. No. 125.) In that opinion, the Court granted Defendant's motion to dismiss Plaintiffs First Amended Complaint except as to Plaintiffs claim under Section 104 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 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 Comt 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 n.3.) 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 modified 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 NFLPA's October 16 document SPA-33 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 2 of 9 production has mooted the claim ... further discovery is not appropriate," and set a briefing schedule for the NFLPA' s 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 filed 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 Johnson'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 NFLPA's motion for summary judgment. (Doc. Nos. 151 ("Johnson Br."), 152.) The NFLPA filed · 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-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., 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 2 SPA-34 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 3 of 9 summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyantv. Okst, 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 York, 132 F.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) (quotingR.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 suppmi of the [nonmoving paiiy's] position," Anderson, 477 U.S. at 252, are insufficient 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 paiiy "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. Catrett, 477 U.S. 317,325 (1986) (internal quotation marks omitted). Ill . DISCUSSION A. Plaintiffs LMRDA Claim is Moot As the Comt has previously held (see Doc. No. 131 at 1, Doc. No. 150 at 2), the only remaining question in this case is whether the NFLPA's October 16 document production has mooted Plaintiffs LMRDA claim by providing Plaintiff with an entire copy of the 2015 Performance-Enhancing Substances Policy (the "Policy"). 1 The NFLPA maintains that the October 16 production provided 1 Plaintiffs effort to relitigate the question of whether receiving the full Policy moots his claim by attempting to distinguish Gonzalez v. Local 32BJ, No. 09-cv-8464 (SHS) (RLE), 2010 WL 3785436 (S.D.N.Y. Sept. 7, 20 I 0), report and recommendation adopted, 2010 WL 3785363 (S.D.N.Y. Sept. 28, 2010), and Mazza v. Dist. Council ofN. Y, Nos. cv-00-6854 (BMC) (CLP), cv-01-6002 (BMC) (CLP), 2007 WL 2668 116 (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 ("CBA") 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 3 SPA-35 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 4 of 9 Plaintiff with the entirety of the Policy within the meaning of the LMRDA, pointing to undisputed facts and to declarations from the NFLPA's 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 ("CFT") could be fulfilled by the Directors of the UCLA Olympic Analytical Laboratory and the Sports Medicine Research and Testing Laboratory; and, finally,"[ s]creen shots" of player certifications regarding drug testing. (Doc. No. 136 at 1- 2.) The NFLPA asse1ts 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 Deel.") 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 Deel.") at 1). Plaintiff denies that the NFLPA' s October 16 production represents the entire 2015 agreement (Doc. No. 152 at 2), arguing that a material dispute of fact remains as to five categories of documents: (1) the "CFT Amendment" (Johnson Br. at 4); (2) the "Amendment Regarding the Number of Arbitrators" (id.); (3) laboratory "Policy Protocols and Procedures" (id. at 6); (4) the "Amendment to the Two-Year Testing Period" (id. at 8); and, finally, (5) "Other Unknown Modifications 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 Plaintiffs claim. of the relevant CBA - moots a claim under§ 104 of the LMRDA. Plaintiff points to no authority to the contrary. 4 SPA-36 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 5 of 9 First, as to the CFT Amendment, Plaintiff argues that the production is insufficient because the April 2013 letter states that it is a modification 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 Plaintiffs 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 4-6.) Plaintiff maintains that statements made by the NFLPA before the U.S. District Court for the Northern District of Ohio reference such modifications, and that the NFLPA's current position is inconsistent with those past representations. (Jd. 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 Plaintiffs 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 modification of the three-to-five arbitrator requirement, Plaintiffs insistence that the NFLPA is withholding a secret modification to the policy constitutes mere conjecture that is insufficient to create a material dispute of fact. See Kerzer, 156 F.3d at 400. Plaintiffs third argument is that the NFLPA's 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 "FAC") 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 laboratory").) By its plain terms, Section 104 of the LMRDA 5 SPA-37 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 6 of 9 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. Plaintiffs reliance on the U.S. Department of Labor's Office of Labor Management Standards ("OLMS") 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 § 1 I 0.300 (emphasis added)). The NFLPA's failure to produce UCLA's 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 NFLPA's production. Plaintiff next contends that summary judgment is precluded by the NFLPA's 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 "modification" to the Policy with respect to the bargaining patties' interpretation of the two-year testing period, the Comt referred to the allegation that the NFLPA had never provided P laintiff with a "side agreement relating to the bargaining parties' interpretation of the timeline for reasonable cause testing" as one reason why Plaintiffs LMRDA claim survived the NFLPA's motion to dismiss. (Doc. No. 125 at 17.) However, in the wake of the NFLPA's October 16 production, no genuine dispute of material fact remains with respect to this alleged side agreement. In the face of the NFLPA's affirmative representations that there exist no other as-yet-unproduced documents within the scope of the LMRDA and, specifically, that "there is no ... side agreement relating to the bargaining patties' interpretation of the timeline for reasonable-cause testing" (Saxon Deel. 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 6 SPA-38 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 7 of 9 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.) Futthermore, the Arbitral Award, which has been confirmed by the Coutt 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. 211 6.15, 6.19 .) In light of the declarations submitted by the NFLPA, the Policy' s express authorization, and the arbitrator's finding, the Coutt 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 summary judgment is inappropriate because, " [a]bsent discovery, it is impossible to know ifthere are other modifications 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 fishing 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 s reliance on Leavey v. International Brotherhood ofTeamsters- Theatrical Teamsters Local Union No. 817, No. 13-cv-0705 (NSR), 2015 WL 5802901 (S.D.N.Y. Oct. 5, 2015) is accordingly misplaced. In that case, the plaintiff identified specific collectively-bargained agreements that he had requested and that he alleged had not yet been produced to him. Id. at *6. 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 modifications and documents relating to the Policy. In its ruling on Plaintiffs 56(d) motion, the Coutt already declined to indulge Plaintiffs attempt to use the surviving LMRDA claim as a way to obtain the wide-ranging discovery that was foreclosed when the Coutt granted the NFLPA's motion to dismiss Plaintiffs dutyoffair representation claims. (Doc. No. 150 at 2- 3.) The Coutt declines to reconsider that decision here. 7 SPA-39 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 8 of 9 Thus, each of Plaintiffs 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 ofthe NFLPA is therefore warranted as to Plaintiffs claim under Section 104 of the LMRDA.2 B. Plaintiff Has No Surviving "LMRDA Retaliation" Claim The Couti is likewise unpersuaded by Plaintiffs 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. Plaintiffs First Amended Complaint invokes solely Section 104 of the LMRDA, pe11aining to a union' s provision of collective bargaining agreements to members, and does not reference any of the LMRDA sections relating to retaliation. (See PAC ,r 25.) The First Amended Complaint's single threadbare and conclusory factual allegation that the NFLPA's alleged failure to provide documents was somehow a retaliatory act (see F AC ,r 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 At/. Corp. v Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted). Accordingly, the Cou11 has already rejected Plaintiffs "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 asse11ing his rights under the LMRDA' were dismissed by this Couii as part of Johnson's duty of fair representation claim." (Doc. No. 150 at 2 (first quoting Doc. No. 141; then citing Doc. No. 125 at 15- 16).) 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 Comt grants summary judgment on the grounds that the NFLPA's October 16 document production mooted Plaintiffs LMRDA claim, the Court does not reach the NFLPA's alternative argument that Plaintiff lacks standing with respect to his LMRDA claim. 8 SPA-40 Case 1:17-cv-05131-RJS Document 155 Filed 08/02/19 Page 9 of 9 establish that "(l) his conduct constituted 'free speech' under the LRMDA; (2) that the speech was a cause of the Union taking action against him; and (3) damages." Leavey, 2015 WL 5802901, at *8; 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 ,r,r 123-126 (describing Plaintiffs statements to the media as instigating "[t]he NFLPA's Public Dispute with Johnson"); see also Doc. No. 151 Ex. 1 ("Johnson Deel.") at 1 ("I publicly questioned the representation the [NFLPA] provided me ....").) Because the Coutt finds 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 Cou1t' s October 3, 2018 opinion, the Comt need not enter summary judgment on that claim. However, for the reasons stated above, the purpo1ted 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 NFLPA's motion for summary judgment is GRANTED. The Clerk of Coutt is respectfully directed to terminate the motion pending at Doc. No. 134 and to close this case. SO ORDERED. Dated: August 2, 2019 New Yark, New Yark RI ARD J. SULLIVAN UNITED STA TES CIRCUIT JUDGE Sitting by Designation 3 Because the Court grants summary judgment in favor of the NFLPA with respect to the lone surviv ing claim in the case, the Court does not reach Plaintiff's argument that he preserved his right to demand a jury trial. 9 SPA-41 Case 1:17-cv-05131-RJS Document 156 Filed 08/05/19 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------)( DAVID LANE JOHNSON, Plaintiff, -against- 17 CIVIL 5131 (RJS) JUDGMENT NATI ON AL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Defendant. -----------------------------------------------------------)( It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated August 2, 2019, the NFLPA's motion for summary judgment is granted; accordingly, this case is closed. Dated: New York, New York August 5, 2019 r.l~;.a '1J_i . VJ THIS DOCUMENT WA' ON THE DOCKET 0'." 1 /