In the

SUPREME COURT OF THE UNITED STATES OF AMERICA

NATIONAL HOCKEY LEAGUE,

Petitioner,

v.

MICHAEL SCOTT and NATIONAL HOCKEY LEAGUE

PLAYER’S ASSOCIATION, Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT OF TULANIA

BRIEF FOR RESPONDENT

ORAL ARGUMENT REQUESTED

TEAM 18

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QUESTIONS PRESENTED

I. WHETHER THE APPELLATE COURT CORRECTLY HELD THAT A NATIONAL HOCKEY LEAGUE PLAYER’S CLAIMS UNDER MINNESOTA’S DRUG AND ALCOHOL TESTING IN THE WORKPLACE ACT CHALLENGING A SUSPENSION UNDER A COLLECTIVE BARGAINED FOR DRUG POLICY ARE NOT PREEMPTED BY SECTION 301 OF THE LABOR MANAGEMENT RELATIONS ACT.

II. WHETHER THE APPELLATE COURT CORRECTLY SET ASIDE AN

ARBITRATOR’S AWARD SANCTIONING THE NATIONAL HOCKEY LEAGUE’S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNINGS REGARDING THE PRESENCE OF A BANNED SUBSTANCE IN A DIETARY SUPPLEMENT BECAUSE SUCH AN AWARD VIOLATED PUBLIC POLICY.

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TABLE OF CONTENTS QUESTIONS PRESENTED ........................................................................................................... ii TABLE OF CONTENTS ............................................................................................................... iii TABLE OF AUTHORITIES ......................................................................................................... iv CONSTITUTIONAL PROVISIONS OR STATUTES INVOVLED ........................................... vi STATEMENT OF THE CASE ........................................................................................................1 SUMMARY OF THE ARGUMENT ..............................................................................................4 ARGUMENT ...................................................................................................................................6

I. THE APPELLATE COURT CORRECTLY HELD THAT SCOTT’S DATWA CLAIM WAS NOT PREEMPTED BY SECTION 301 OF THE LMRA BECAUSE IT WAS GROUNDED IN MINNESOTA LAW AND DID NOT REQUIRE INTERPRETATION OF THE CBA OR POLICY ........................................................6

A. Scott’s DATWA claim is based on Minnesota law because it was based on non-negotiable state-law rights, not rights created by the CBA or Policy. .....................9

B. Scott’s DATWA claim does not require interpretation of the CBA because it can be resolved by evaluating the facts and actual procedures taken by the NHL ......10

II. THE APPELLATE COURT CORRECTLY SET ASIDE THE ARBITRATOR’S

AWARD SANCTIONING THE NATIONAL HOCKEY LEAGUE’S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNINGS BECAUSE THE AWARD VIOLATED PUBLIC POLICY ............................................................................................................13

A. Enforcement of the arbitration award judicially sanctions a knowing and

intentional breach of fiduciary duty by the NHL and administrators of the Policy who failed to issue a specific warning about the presence of Narcotussin in SuperDope ..............................................................................................................14

B. Enforcement of the arbitration award judicially sanctions a policy that compromises the health and safety of NHL players ..............................................18

CONCLUSION ..............................................................................................................................19

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TABLE OF AUTHORITIES

United States Supreme Court Cases Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) ................................................................8, 12 Caterpillar, Inc. v. William, 482 U.S. 386 (1987) ...........................................................................8 Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988) ........................................................8, 10 Livadas v. Bradshaw, 512 U.S. 107 (1994) ...............................................................................8, 12 Local 174, Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95 (1962) ............................................8 Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448 (1957) .................................7 W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, 467 U.S 757 (1983) ........13

United States Court of Appeals Cases

Atwater v. NFL Players Ass’n, 626 F.3d 1170 (11th Cir. 2010) ................................................9, 10 Bogan v. GMC, 500 F.3d 828 (8th Cir. 2007) .................................................................................9 Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) .........................................9, 12 Evvtex Co. v. Hartley Cooper Assocs., 102 F.3d 1327, 1332 (2nd Cir. 1996) ..............................16 Karnes v. Boeing Co., 335 F.3d 1189 (10th Cir. 2003) .................................................................11 Manville Forest Products Corp. v. United Paperworkers Int’l Union, 831 F. 2d 72, 76 (5th Cir. 1987) ..............................................................................................................................................13 Nardone v. Reynolds, 538 F. 2d 1131, 1135 (5th Cir. 1976) .........................................................17 Schoch v. InfoUSA, Inc., 341 F.3d 785, 788 (8th Cir. 2003) .........................................................13 Williamson v. Kay (In re Villa West Assocs.), 146 F.3d 789, 807 (10th Cir. 1998) ......................14

Williams v. NFL, 582 F.3d 863 (8th Cir. 2009) .......................................................................10, 11 Winfrey v. Simmons Food, Inc., 495 F.3d 549 (8th Cir. 2007) ......................................................13

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United States District Court Cases

Holmes v. NFL, 939 F. Supp. 517, 527 (N.D. Tex. 1996) .............................................................11 NFL Players Ass’n v. NFL, 598 F. Supp. 2d 971, 981 (D. Minn. 2008) .......................................16 Thompson v. Hibbing Taconite Holding Co., 2008 WL 4737442 ...................................................9

State Court Cases Brown v. Poritzky, 30 N.Y.2d 289 (N.Y. 1972) .............................................................................16 Callahan v. Callahan, 127 A.D. 2d 298, 300 (N.Y. App. Div. 1987) ...........................................16 Cristallina S.A. v. Christie, Manson & Woods Int’l Inc., 502 N.Y.S.2d 165, 171 (App. Div. 1st Dep’t 1986) ....................................................................................................................................16 Lumbermens Mut. Cas. Co. v. Franey Muha Alliant Ins. Servs., 388 F. Supp 2d 292, 305 (S.D.N.Y. 2002) .............................................................................................................................14 United Feature Syndicate Inc. v. Miller Features Syndicate, Inc., 216 F. Supp. 2d 198, 218 (S.D.N.Y. 2002) .............................................................................................................................14

United States Statutes

29 U.S.C. § 185(a) (2012) ......................................................................................................... vi, 7

State Statutes MINN. STAT. §181.952 subdiv. 1 (2010) ................................................................................... vi, 6 MINN. STAT. §181.952 subdiv. 4 (2010) ............................................................................. vi, 7, 10 MINN. STAT. §181.953 subdiv. 1 (2010) .............................................................................. vi, vii, 6 MINN. STAT. §181.953 subdiv. 6 (2010) ................................................................................... vii, 6 MINN. STAT. §181.953 subdiv. 10 (2010) .......................................................................... vii, viii, 6 MINN. STAT. §181.955 subdiv. 1 (2010) ....................................................................... viii, ix, 7, 10

Secondary Sources

United States Department of Labor – Occupational Safety and Health Administration Standard Interpretations (September 12, 2008) https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27301 .............................................................................................................19

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CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED

The text of the following constitutional and statutory provisions involved are provided

below:

§301 of the Labor Management Relations Act of 1947 (29 U.S.C. §185(a)), in relevant

part:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy and without regard to the citizenship of the parties.

Drug and Alcohol Testing at the Workplace Act, in relevant part:

§181.951 Authorized Drug and Alcohol Testing Subdivision 1. Limitations on testing.

(1) The employees or job applicants subject to testing under the policy; (2) the circumstances under which drugs and alcohol testing may be requested or required; (3) the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal; (4) any disciplinary or other adverse personnel action that may be taken based on a confirmatory test or request and pay for a confirmatory retest; (6) any other appeal procedures available.

Subdivision 4. Random testing.

An employer may request or require employees to undergo drug and alcohol testing on a random selection basis only if

(1) They are employed in safety-sensitive positions, or

(2) They are employed as professional athletes if the professional athlete is subject to a collective bargaining agreement permitting random testing but only to the extend consistent with the collective bargaining agreement.

§181. 953 Reliability and Fairness Safeguards

Subdivision 1. Use of licensed, accredited, or certified laboratory required.

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(a) An employer who requests or requires an employee or job applicant to undergo drug or alcohol testing shall use the services of a testing laboratory that meets one of the following criteria for drug testing:

(1) is certified by the National Institute on Drug Abuse as meeting the mandatory guidelines published at 53 Federal Register 11970 to 11989, April 11, 1988; (2) is accredited by the College of American Pathologists, 325 Waukegan Road, Northfield, Illinois, 60093-2750, under the forensic urine drug testing laboratory program; or (3) is licensed to test for drugs by the state of New York, Department of Health, under Public Health Law, article 5, title V, and rules adopted under that law.

(b) For alcohol testing, the laboratory must either be: (1) licensed to test for drugs and alcohol by the state of New York, Department of Health, under Public Health Law, article 5, title V, and the rules adopted under that law; or (2) accredited by the College of American Pathologists, 325 Waukegan Road, Northfield, Illinois, 60093-2750, in the laboratory accreditation program.

Subdivision 6. Rights of employees and job applicants.

(a) Before requesting an employee or job applicant to undergo drug or alcohol testing, an employer shall provide the employee or job applicant with a form, developed by the employer, on which to acknowledge that the employee or job applicant has seen the employer's drug and alcohol testing policy. (b) If an employee or job applicant tests positive for drug use, the employee must be given written notice of the right to explain the positive test and the employer may request that the employee or job applicant indicate any over-the-counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result. (c) Within three working days after notice of a positive test result on a confirmatory test, the employee or job applicant may submit information to the employer, in addition to any information already submitted under paragraph (b), to explain that result, or may request a confirmatory retest of the original sample at the employee's or job applicant's own expense as provided under subdivision 9.

Subdivision 10. Limitations on employee discharge, discipline, or discrimination.

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(a) An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test. (b) In addition to the limitation under paragraph (a), an employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test requested by the employer unless the following conditions have been met:

(1) the employer has first given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and (2) the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.

(c) Notwithstanding paragraph (a), an employer may temporarily at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest, provided the employer believes that it is reasonably necessary to protect the health or safety of the employee, co-employees, or the public. An employee who has been suspended without pay must be reinstated with back pay if the outcome of the confirmatory test or requested confirmatory retest is negative. (d) An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of medical history information revealed to the employer pursuant to subdivision 6 unless the employee was under an affirmative duty to provide the information before, upon, or after hire. (e) An employee must be given access to information in the employee's personnel file relating to positive test result reports and other information acquired in the drug and alcohol testing process and conclusions drawn from and actions taken based on the reports or other acquired information.

§181.955 Construction Subdivision 1. Freedom to collectively bargain.

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Sections 181.950 to 181.954 shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection provided in those section

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STATEMENT OF FACTS The Respondent, Michael Scott (“Scott”), is an employee of the Minnesota Wild, L.L.C.

and a member of the National Hockey League Player’s Association (“NHLPA”). (R. at 3) In

2013 the NHLPA and the Petitioner, National Hockey League (“NHL”), entered into a

Collective Bargaining Agreement (“CBA”). (R. at 3) Included in the CBA is the NHL’s Policy

on Anabolic Steroids and Related Substances (“Policy”). (R. at 3) The Policy provides that

Players are prohibited from using any number of “Prohibited Substances” including performance

enhancing drugs, masking agents, Narcotussin, plasma expanders, and other substances with

similar biological effects. (R. at 3) The Policy also implements a strict liability standard, stating

that “a positive test result will not be excused because a player did not know he was taking a

Prohibited Substance.” (R. at 3) The Policy continues to state that “the use of a Prohibited

Substance need not be intentional for a player to be subject to discipline.” (R. at 3) Therefore, the

Policy places ultimate responsibility on Players and does not afford players the opportunity to

explain a drug test positive for a Prohibited Substance.

In 2013, Scott took SuperDope, a sleep-aid supplement manufactured by Dunder Mifflin,

the night before a scheduled preseason training camp scrimmage. (R. at 4) Subsequently, Scott

was drug tested pursuant to the Policy’s annual preseason provisions, and his results were

positive for Narcotussin. (R. at 4) As a result, Scott and three other Players who tested positive

for Narcotussin were suspended for 20 games, as required by the Policy. (R. at 4) Scott, the three

additional players, and the NHLPA appealed the suspensions to an arbitrator pursuant to the

terms of the Policy. (R. at 4)

In the appeal, none of the four NHL players contested the positive test result for

Narcotussin. (R. at 4) Scott readily conceded that he was aware of the strict liability policy and

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of warnings regarding sleep aid supplements. (R. at 4) However, Scott and the other three players

argued that the positive test results should be excused because the NHL knew that some Dunder

Mifflin products contained Narcotussin, but failed to specifically notify Players of this fact. (R.

at 5)

The NHL first became aware of the dangers of SuperDope in 2013. At that time, the

NHL discovered that SuperDope contained Narcotussin, a Prohibited Substance under the

Policy. (R. at 4) However, SuperDope does not list Narcotussin as an ingredient on its label. (R.

at 4) Dr. Dwight K. Schrute (“Dr. Schrute”), the Independent Administrator of the Policy, was

one of the first to become aware of the connection between positive results for Narcotussin and

the use of SuperDope. (R. at 4) As Independent Administrator of the policy, it was Dr. Schrute’s

express duty to educate Players about prohibited substances. (R. at 19) The Policy states: “If you

have questions or concerns about a particular product, you should contact Dr. Schrute. As the

Independent Administrator, Dr. Schrute is authorized to respond to players’ questions regarding

specific supplements.” (R. at 19) The Policy further provided: “In addition, the Independent

Administrator will make himself available for consultation with Players and Club physicians,

oversee violated protocols, oversee the development of educational materials, and participate in

research on anabolic steroids.” (R. at 19)

Upon learning of the possible connection between positive results for Narcotussin and the

use of SuperDope, Dr. Schrute then notified Dr. Jim Halpert (“Halpert”). (R. at 4) Halpert aids

in the implementation of the policy through his role as a Consulting Toxicologist. (R. at 4)

Halpert in turn, asked Creed Bratton (“Bratton”), the Director of Sports Medicine Research

Testing Laboratory, to analyze SuperDope. (R. at 4) On September 5, 2013 Bratton contacted

both Halpert and Dr. Schrute and notified them that SuperDope contained Narcotussin. (R. at 4)

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Phyllis Vance, the Vice President of Law and Labor Policy for the NHL, was also made aware of

Bratton’s findings. (R. at 4) Despite Bratton’s request that the NHL report the information about

SuperDope to the Food & Drug Administration, Vance and Halpert refused to do so. (R. at 4)

The NHL then notified the NHLPA that “Dunder Mifflin, the distributor of SuperDope”

had become a banned company with which teams and players were prohibited from doing

business and asked the NHLPA to notify the players of the information. (R. at 4) The NHL did

not notify the NHLPA that Dunder Mifflin distributed products, such as SuperDope, that

contained Narcotussin. (R. at 4) Subsequently, the NHLPA notified Players via email “the

company that produces and distributes SuperDope has been added to the list of prohibited

supplement companies,” and therefore, “players are not allowed to endorse any products made

by Dunder Mifflin.” (R. at 4) Halpert also sent a memo to Players which advised them to avoid

taking any sleep aid supplements. (R. at 4) Additionally, in this memo, Halpert reminded players

of strict liability under the Policy. (R. at 4) In none of the communications received by the

NHLPA or the players was there any specific mention that SuperDope contained a banned

substance under the Policy. (R. at 4)

Upon appeal the players argued that their suspensions should be lifted, despite the

warnings about the dangers of sleep aid supplements, because the Policy created a fiduciary

relationship through which the NHL was required to provide a more explicit warning that

SuperDope contained Narcotussin. (R. at 5) Despite Dr. Schrute, Halpert, Vance, and the NHL’s

knowledge of Narcotussin in SuperDope and their failure to explicitly warn players, the

arbitrator upheld the suspension. (R. at 5)

Scott then filed suit in Minnesota state court against the NHL, Dr. Schrute, Halpert, and

Vance. Scott alleged that the Policy violated Minnesota’s Drug and Alcohol Testing in the

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Workplace Act (“DATWA”) and sought damages and an injunction against the enforcement of

the arbitration award. (R. at 5) The NHL then removed the case to federal court where it was

consolidated with an action brought by the NHLPA seeking to vacate the arbitration award under

the Labor Management Relations Act (“LMRA”). (R. at 5) The United States District Court for

the Southern District of Tulania found that Scott and the NHLPA’s claims must fail on both

counts. (R. at 12)

On appeal, the Tulania Appellate Court reversed the judgment of the District Court

finding that Scott’s DATWA claim is not preempted by Section 301 of the LMRA and further

that the arbitration award violates public policy and therefore must be vacated. (R. at 18, 21)

The NHL appeals the decision of the appellate court in the current petition before this

Court.

SUMMARY OF THE ARGUMENT

This Court should affirm the Appellate Court’s ruling, finding that Scott’s DATWA

claim challenging his suspension under a collectively bargained for drug policy was not

preempted by § 301 of the LMRA. The Appellate Court properly found that the DATWA claim

is founded on Minnesota law because Scott’s claim is based on non-negotiable state-law rights,

not on rights created by the CBA or Policy. Additionally, the claim does not depend upon an

interpretation of the CBA or the Policy since resolution of the claim can be achieved by looking

at the actual actions taken and procedures followed by the NHL. As such, the Appellate Court

was correct in holding that the DATWA claim is not preempted by § 301.

Additionally, the Appellate Court correctly set aside the arbitration award because its

enforcement is contrary to public policy. The terms of the Policy create a fiduciary relationship

between the NHL, Dr. Schrute, and Players. As a fiduciary, the NHL and Dr. Schrute had a duty

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to disclose to the Players that SuperDope contained Narcotussin. The NHL and Dr. Schrute

intentionally withheld information from Players which ultimately resulted in several players

testing positive for Narcotussin. The refusal to issue a specific warning about Narcotussin in

SuperDope constitutes a breach of fiduciary duty. Thus, enforcement of the arbitration award

would judicially sanction the NHL and Dr. Schrute’s breach of fiduciary duty. Further,

enforcement of the arbitration award would promote a policy that compromises the health and

safety of Players. Withholding vital information about potentially dangerous substances from

Players compromises the health and safety of the players and also frustrates the purpose of the

Policy and the NHL. Accordingly, this Court should affirm the appellate court’s decision to

vacate the arbitration award in interest of the health and safety of Players.

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ARGUMENT

I. THE APPELLATE COURT CORRECTLY RULED THAT SCOTT’S DATWA CLAIM WAS NOT PREEMPTED BY SECTION 301 OF THE LMRA BECAUSE IT WAS GROUNDED IN MINNESOTA LAW AND DID NOT REQUIRE INTERPRETATION OF THE CBA OR THE POLICY.

Drug and Alcohol in the Workplace Act (“DATWA”) is a Minnesota statute that governs

drug and alcohol testing in the workplace by requiring employer’s drug and alcohol testing

policies to meet certain minimum standards. MINN. STAT. §181.952 subdiv. 1 (2010). An

employer’s drug and alcohol testing policy must, at a minimum, set forth the following

information:

(1) The employees or job applicants subject to testing under the policy; (2) the circumstances under which drugs and alcohol testing may be requested or required; (3) the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal; (4) any disciplinary or other adverse personnel action that may be taken based on a confirmatory test or request and pay for a confirmatory retest; (6) any other appeal procedures available.

Id. §181.952 subdiv. 1(1)-(6). DATWA also outlines specific criteria that a testing laboratory

must meet in order for an employer to use its services. Id. §181.953 subdiv. 1. Additionally,

DATWA requires an employer to provide an employee or job applicant, who tests positive for a

prohibited substance, written notice of their right to explain the positive test, an opportunity to

explain that result, and the ability to request a confirmatory retest of the original sample at their

own expense. Id. §181.953 subdiv. 6(a)-(c). Furthermore, DATWA prevents an employer from

discharging or disciplining an employee, who has tested positive for a prohibited substance, if

that result was not verified by a confirmatory test. Id. §181.953 subdiv. 10.

DATWA also addresses CBAs and professional athletes subject to CBAs. Specifically,

the Act provides that its terms “shall not be construed to limit the parties to a [CBA] from

bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds,

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and does not otherwise conflict with, the minimum standards and requirements for employee

protection provided in [the Act].” Id. §181.955 subdiv. 1. Additionally, the Act authorizes

random drug and alcohol testing for “professional athletes if the professional athlete is subject to

a [CBA] permitting random testing but only to the extent consistent with the collective

bargaining agreement.” Id. §181.952 subdiv 4(2).

In this case, Scott asserted that because he is employed in the state of Minnesota and

certain provisions of the Policy conflict with the requirements set forth in DATWA, his

suspension should not be upheld. (R. at 5) Conversely, the NHL claims that Scott’s DATWA

claim is preempted by § 301 of the LMRA because: (1) the claim requires analysis of the Policy

in order to determine whether it meets DATWA’s standards and (2) a uniform interpretation of

the CBA and Policy is necessary to preserve the integrity of the NHL’s business as a national

organization. (R. at 15)

On its face, § 301 of the Labor Management Relations Act of 1947 (“LMRA”) is a

jurisdictional statute, under which “suits for violation of contracts between an employer and a

labor organization representing employees in an industry affecting commerce as defined in this

Act, or between any such labor organizations, may be brought in any district court of the United

States having jurisdiction of the parties.” 29 U.S.C. § 185(a) (2012). In short, § 301 applies to

suits for breach of CBAs.

Shortly after the passage of the LMRA, this Court ruled that not only did § 301 provide

federal courts jurisdiction over controversies involving CBAs, but it also authorized the federal

courts to develop a federal common law for CBA enforcement. Textile Workers Union of Am. v.

Lincoln Mills of Ala., 353 U.S. 448, 450-51 (1957). This Court went on to hold that this federal

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common law preempts the use of state contract law in CBA interpretation and enforcement.

Local 174, Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962).

§301 preemption was later expanded to also include those cases whose resolution “is

substantially dependent upon analysis of the terms of an agreement made between the parties in a

labor contract,” as well as those that specifically alleging violation of a CBA. Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 220 (1985). This Court felt that federal-labor law principles should

be employed in these types of cases as well because application of state law would lead to

inconsistent results given the fact that there could be as many state-law principles as there are

states. Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-406 (1988).

While this Court has expanded the scope of §301 preemption, it has also established

limits. First, § 301 does not preempt state law claims merely because the parties involved are

subject to a CBA and the events underlying the claim occurred on the job. Allis-Chalmers Corp.,

471 U.S. at 211. Additionally, in Caterpillar, Inc. v. William, 482 U.S. 386 (1987), it was held

that a defense based on the terms of a CBA is not enough to require preemption of an otherwise

purely state-law claim. Id. at 399. Furthermore, this Court held that claims based on state-

provided substantive rights, which apply without regard to a CBA, are not preempted unless they

require the interpretation of the CBA. Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 409-10,

413 (1988). Finally, in Livadas v. Bradshaw, 512 U.S. 107 (1994), this Court reiterated this

stance that not all disputes involving CBAs are preempted by holding that preemption is not

required merely because a CBA is consulted in the course of state-law litigation. Id. at 123-24.

Keeping these expansive and somewhat ambiguous rules in mind, the appellate courts

have attempted to discern a test for determining if a state law claim is preempted. The two major

factors the circuits look for are whether the CBA actually set forth the rights that the claim is

9

based on and whether evaluation of the claim is “inextricably intertwined with consideration of

the terms of the labor contract,” meaning that the state-law claim requires a provision of the

CBA to be interpreted. Bogan v. GMC, 500 F.3d 828, 832 (8th Cir. 2007); Cramer v. Consol.

Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001); Atwater v. NFL Players Ass’n, 626 F.3d

1170, 1176-77 (11th Cir. 2010). If the answer to both of those questions is no, the state-law

claim is not preempted.

Therefore, this Court should affirm the Appellate Court’s decision, finding that Scott’s

DATWA claim is not preempted by § 301 because: (1) his claim is based on Minnesota law, not

rights set forth in the CBA or Policy; and (2) the resolution of his claim does not depend on

interpretation of the CBA or Policy.

A. Scott’s DATWA claim is based on Minnesota law because it is based on non-negotiable state-law rights, not created by the CBA or Policy.

If a claim is based on state law rights, and not rights, duties, or expectations set forth in

the CBA, the claim is not preempted by §301. Compare Bogan, 500 F.3d at 832 (held that the

plaintiff’s state-law intentional infliction of emotional distress claim was not “based on”

provisions of the CBA because the provision at issue only set forth rights which inure to GM’s

benefits and did not give Bogan any right upon which she could base a claim), and Cramer, 255

F.3d at 693-95 (found that the plaintiff’s state law privacy claim was not preempted under §301

of the LMRA because the plaintiff based their claims on California’s constitutional and statutory

rights of privacy guaranteed to all persons, whether or not they may happen to work subject to a

CBA), with Thompson v. Hibbing Taconite Holding Co., 2008 WL 4737442, at *5 (concluded

that although allegations that Hibbing Taconite had violated non-negotiable state law rights of

Minnesota’s DATWA would be founded in state law and therefore not preempted, Thompson’s

additional allegation that Hibbing Taconite violated its own testing policies is founded in the

10

requirements of the CBA and therefore preempted), and Atwater, 626 F.3d at 1179-82 (11th Cir.

2010) (the negligence claims against the NFLPA were preempted because the alleged duties,

investigating and approving financial advisors, arose directly from the CBA’s Career Planning

Program provision).

Here, Scott’s claim is that because the Policy conflicts with the requirements set forth in

DATWA, his suspension should be vacated. (R. at 5) This claim is based on rights available to

all employees in the state of Minnesota regardless if they are subject to a CBA or not. MINN.

STAT. § 181.955(1) subdiv. 1, 181.951 subdiv. 4(2). It is not based on rights, duties or

expectations created by the CBA because there is not a provision in either agreement which

created such a duty or right. Furthermore, Scott is not arguing that the NHL violated their own

policy. Rather he is stating that the Policy itself is violating the requirements of DATWA.

Therefore, because non-negotiable state law rights are the foundation of his claim, not rights or

duties created by the CBA, his claim should not be preempted by §301 of the LMRA.

B. Scott’s DATWA claim does not require interpretation of the CBA because it can be resolved by evaluating the facts and actual procedures taken by the NHL.

A state law claim will not be preempted if resolution of the claim only requires

comparing the actions of an employer to State law requirements. Williams v. NFL, 582 F.3d 863,

876 (8th Cir. 2009). In Williams, NFL Players brought suit against the NFL making several

claims including one where they alleged a violation of Minnesota’s DATWA. Id. at 872. The

Eighth Circuit affirmed the District Court’s ruling, finding that the Players’ DATWA claim was

not preempted. Id. at 878. In reaching this decision, the Appellate Court stated that in order to

resolve the claim, a court would not need to “consult” the NFL Drug Policy. Id. at 876. Instead,

the court would only have to look at the facts and procedures actually followed by the NFL and

compare those to the DATWA’s requirements. Id. See also Lingle, 486 U.S. at 407 (found that

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the plaintiff’s retaliatory discharge claim was not preempted by §301 because each element of

the claim was a “purely factual question” that pertained to the conduct and motivation of the

employer and did not require the court to interpret any term of the CBA); Karnes v. Boeing Co.,

335 F.3d 1189, 1194 (10th Cir. 2003) (the plaintiff’s claim alleging that Boeing had violated

Oklahoma’s Drug Testing Act was not preempted because both claims, violation of the second

test requirement and failure to apply the policy uniformly, where “purely factual inquiries” and

not “inextricably intertwined” with the terms of the CBA). Therefore, the Eighth Circuit found

that the Players DATWA claim was “clearly independent” of the Policy and therefore not

preempted by § 301. Id.

Williams is analogous to the case at hand. Scott is alleging a violation of Minnesota’s

DATWA. Following the guidance of the Eight Circuit in Williams, a court would only need to

evaluate the actual procedures taken by the NHL regarding Scott’s drug test to determine if his

claim should prevail. There would be no need to interpret the CBA or the Policy because the

meaning of their terms is not in dispute. For example, to determine if the NHL met DATWA’s

confirmatory test requirement, a court would only need to ask if a confirmatory test was

conducted before Scott was suspended. Contra Holmes v. NFL, 939 F. Supp. 517, 527 (N.D.

Tex. 1996) (finding that Holmes’ state-law tort claims were inextricably intertwined with, and

substantially dependent on the terms of the Drug Policy because his claim rests on the allegation

that the Lions misled him, which would require an analysis of the CBA to determine whether the

Lions had defrauded Holmes or if they had the right to request that Holmes submit to a pre-

employment drug test.). Because Scott’s claim does not require a court to analyze the CBA or

Policy, the Appellate Court correctly found that Scott’s DATWA claim was not preempted.

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Additionally, the LMRA does not give employers and unions the power to displace any

state regulatory law they find inconvenient. Cramer, 255 F.3d at 695 n. 9. In Cramer, the

employer, a large trucking company, argued that because the CBA affected employees in several

states, its terms should preempt inconsistent state law. Id. at 688, 695 n. 9. However, the Ninth

Circuit did not find that argument persuasive. Citing to Allis-Chalmers, 471 U.S. at 211-12, they

found that there was no suggestion that “Congress, in adopting §301, wished to give the

substantive provisions of private agreements the force of federal law, ousting any inconsistent

state regulations.” Id. at 695 n. 9. Therefore, they held that Consolidated was required to abide

by the provisions of California penal law, regardless of how inconvenient it might be. Id. at 695

Cramer is analogous to the present case. The NHL is asserting, among other things, that a

uniform interpretation of the CBA and the Policy is necessary to preserve the integrity of the

NHL’s business as a national organization. (R. at 15) While this might be a compelling

argument, it is very similar to the argument made in Cramer. Like the Ninth Circuit, this Court

should find this argument unpersuasive because of the strong precedent against allowing

employers and labor unions from contracting around inconvenient laws and regulations. See

Allis-Chalmers, 471 U.S. at 211-12. See also Livada, 512 U.S. at 123 (advising that section 301

“cannot be read broadly to preempt non-negotiable rights conferred on individual employees as a

matter of state law”). Therefore, while it may be inconvenient for the CBA and Policy to have to

abide by multiple state’s drug and alcohol testing policies, §301 of the LMRA does not allow for

such claims to be preempted.

Thus, the Appellate Court was correct in finding that §301 does not preempt Scott’s

DATWA claim. His claim was based on rights that were given to him by the State, not by the

CBA or the Policy. Additionally, in order to resolve his claim, a court would not have to interpret

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any provisions of the CBA or Policy. Rather, they could look to the facts and actual procedure

taken by the NHL. Furthermore, although it may be inconvenient for the NHL to abide by state

drug policy laws, the CBA and Policy cannot be used to displace state laws and regulations.

Therefore, this Court should affirm the Appellate Court’s decision finding that Scott’s claim was

not preempted by §301.

II. THE APPELLATE COURT CORRECTLY SET ASIDE THE ARBITRATOR’S AWARD SANCTIONING THE NATIONAL HOCKEY LEAGUE’S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNINGS BECAUSE THE AWARD VIOLATED PUBLIC POLICY.

In reviewing a district court’s order confirming arbitration awards, a court of appeals

reviews conclusions of law de novo and findings of fact for clear error. Winfrey v. Simmons

Food, Inc., 495 F.3d 549, 551 (8th Cir. 2007). However, great deference is afforded to

arbitration awards. Awards shall be confirmed so long as the arbitrator is even arguably

construing or applying the [agreement] even if the court thinks that his interpretation of the

agreement is in error. Id. Nevertheless, it is well settled that although arbitrators have broad

authority, the arbitrator is not wholly free from judicial review. Schoch v. InfoUSA, Inc., 341

F.3d 785, 788 (8th Cir. 2003). In addition to statutory reasons for vacating arbitration awards,

the Eight Circuit has recognized two narrow judicially created standards for vacating an

arbitration award. Id. An award can be vacated if it is completely irrational, or when the award

evidences a manifest disregard for the law. Id. Additionally, a court may overturn an arbitration

award if the award violates a clearly defined public policy. Manville Forest Products Corp. v.

United Paperworkers Int’l Union, 831 F. 2d 72, 76 (5th Cir. 1987). This Court stated in W.R.

Grace & Co. that for public policy to drive a court to vacate an arbitration award, the policy

relied upon must be “explicit,” “well defined” and “dominant.” W.R. Grace & Co. v. Local

Union 759, Int’l Union of United Rubber, 467 U.S 757, 766 (1983).

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The Appellate Court correctly set aside the arbitrator’s award because the award violated

public policy. This Court should affirm the Appellate Court’s decision because confirming the

arbitration award would judicially sanction a knowing and intentional breach of fiduciary duty

and would promote a policy that compromises the health and safety of Players.

A. Enforcement of the arbitration award judicially sanctions a knowing and intentional breach of fiduciary duty by the NHL and administrators of the policy who failed to issue a specific warning about the presence of Narcotussin in Superdope.

This Court should affirm the Appellate Court’s decision because the arbitration award

enforces a knowing and intentional breach of a fiduciary duty by the NHL, Dr. Schrute, Halpert,

and Vance. “A fiduciary relationship exists between two persons when one of them is under a

duty to act or give advice for the benefit of the other upon matters within the scope of the

relation.” Lumbermens Mut. Cas. Co. v. Franey Muha Alliant Ins. Servs., 388 F. Supp 2d 292,

305 (S.D.N.Y. 2002). Parties may deal at arms length for their mutual profit without establishing

a fiduciary relationship. Williamson v. Kay (In re Villa West Assocs.), 146 F.3d 798, 807 (10th

Cir. 1998). However, “it is only when, by their concerted action, they willingly or knowingly act

for one another in a manner to impose mutual trust and confidence that a fiduciary relationship

arises.” Id. Fiduciary relationships are often found in cases in which confidence has been

reposed and betrayed. United Feature Syndicate Inc. v. Miller Features Syndicate, Inc., 216 F.

Supp. 2d 198, 218 (S.D.N.Y. 2002). To determine if a fiduciary relationship exists, courts

conduct a fact-specific inquiry as to “whether a party reposed confidence in another and

reasonable relied on the other’s superior expertise or knowledge.” Lumbermens, 388 F. Supp. 2d

at 305.

By and through the terms of the Policy, a fiduciary relationship was established between

the NHL, Dr. Schrute, and Players. As Independent Administrator of the Policy, Dr. Schrute had

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various responsibilities that created a fiduciary relationship with Players. Among those

responsibilities, Dr. Schrute had an express duty to educate Players about prohibited substances.

R. at 3. Further, the Policy explicitly states “the Independent Administrator will make himself

available for consultation with Players and Club physicians, oversee violated protocols, oversee

the development of educational materials, and participate in research on anabolic steroids.” R. at

19. By making Dr. Schrute available for consultations with players, the Policy itself reposed

confidence in Dr. Schrute. Confidence that Dr. Schrute would adequately educate Players on

prohibited substances, supplements, and terms of the Policy. The Policy additionally states “If

you have questions or concerns about a particular product, you should contact Dr. Schrute. As

Independent Administrator, Dr. Schrute is authorized to respond to players’ questions regarding

specific supplements.” R. at 19. These terms unequivocally establish a relationship of trust and

confidence between Dr. Schrute and Players. Had Scott or any other NHL player approached Dr.

Schrute with questions regarding SuperDope or other supplements he was authorized to issue an

opinion as Independent Administrator of the Policy and as a physician. During a consultation

Dr. Schrute would have to maintain the same level of trust and confidence that any doctor would

advising a patient. Because the NHL and Dr. Schrute undertook a duty to advise Players of the

Policy they were required to follow, a fiduciary relationship existed between the parties.

The Policy clearly places Dr. Schrute, as Independent Administrator, in a fiduciary

relationship with the Players who are required to follow its terms. As the authority on

information about supplements and prohibited substances, the players’ confidence was reposed

in Dr. Schrute. The players reasonably relied on Dr. Schrute’s superior expertise and knowledge

to educate them about potentially harmful supplements and products. “An agent enters into a

fiduciary relationship with a principal requiring that an agent exercise reasonable diligence.”

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Brown v. Poritzky, 30 N.Y.2d 289 (N.Y. 1972) (overruled on other grounds in Lusenskas v.

Axelrod, 81 N.Y.2d 300 (N.Y. 1993)). Within the exercise of reasonable skill, care and

diligence, an agent has a duty to disclose information. Cristallina S.A. v. Christie, Manson &

Woods Int’l Inc., 502 N.Y.S.2d 165, 171 (App. Div. 1st Dep’t 1986). Specifically, an agent is

subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.

Evvtex Co. v. Hartley Cooper Assocs., 102 F.3d 1327, 1332 (2nd Cir. 1996) quoting Restatement

(Second) of Agency § 381. As a fiduciary, Dr. Schrute owed Players the duty to disclose material

facts regarding banned substances which may be potentially dangerous to their health. The duty

to disclose also arises when one party has information that the other party is entitled to know

because of a fiduciary or other similar relation of trust and confidence between them. Callahan

v. Callahan, 127 A.D. 2d 298, 300 (N.Y. App. Div. 1987). Dr. Schrute breached his fiduciary

duty to Players by not issuing a specific warning about the dangers of SuperDope, a product

which Dr. Schrute knew contained Naroctussin.

Under New York Law governing the CBA, fiduciary duties are a matter of public policy.

NFL Players Ass’n v. NFL, 598 F. Supp. 2d 971, 981 (D. Minn. 2008). “All acts of an agent

which tend to violate his fiduciary duty are regarded as frauds upon the confidence bestowed and

are not only invalid as to the principal, but are also against public policy.” Id. Because Dr.

Schrute breached his fiduciary duty to the players the arbitration award is contrary to public

policy and must be vacated.

Further, the Policy specifically states that administrators will make necessary efforts “to

educate and warn players about the risks involved in the use of supplements.” R. at 19. Dr.

Schrute merely issued general warnings to Players about supplements claiming to induce deep

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sleep. In fact, since September 5, 2013, when Creed Bratton informed Dr. Schrute that

SuperDope contained Narcotussin, no communication from the NHL or its representatives, to

Players explicitly stated that SuperDope was a prohibited supplement containing Narcotussin. R.

at 4. The only communication Players received specifically mentioning SuperDope was from the

NHLPA stating that “Dunder Mifflin, the company that produces and distributes SuperDope, has

been added to the list of prohibited supplement companies,” and therefore “players are not

allowed to endorse any product made by Dunder Mifflin.” R. at 4. The above statement and

general warnings about sleep aids fall woefully short of educating players about the risks

involved in using supplements. The players only knew that they were not to engage in

endorsement deals with the manufacturer of SuperDope, Dunder Mifflin. The failure of Dr.

Schrute and the NHL to issue a specific warning about SuperDope is a breach of their fiduciary

duty to the players under the terms of the Policy. The confidence players reposed in Dr. Schrute

was betrayed when he withheld information about Narcotussin in SuperDope which he had a

duty to disclose.

Dr. Schrute and the NHL were additionally under a duty to disclose because they held Dr.

Schrute out not only as the Independent Administrator of the Policy but also as a physician. The

Policy explicitly instructs Players to contact “Dr. Schrute” with questions about supplements and

prohibited substances. Dr. Schrute was authorized by the NHL to consult with players regarding

the policy and supplements. Dr. Schrute’s duties under the Policy are similar to those of any

doctor consulting with patients. Therefore, Dr. Schrute should be held to the same fiduciary

standard doctors are held to when they deal with patients. The Fifth Circuit stated in Nardone v.

Reynolds that “the fiduciary, confidential relationship of physician-patient imposes on the

physician a duty to disclose known facts.” 538 F. 2d 1131, 1135 (5th Cir. 1976). Dr. Schrute

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was under a duty to disclose the fact that SuperDope contained Narcotussin to the Players subject

to the Policy. Dr. Schrute’s failure to explicitly warn Players about the dangers of SuperDope

constitute a breach of his duty. Subsequently, confirming the arbitration award would judicially

sanction a breach of fiduciary duty and thus is against public policy. Therefore, this Court

should affirm the Appellate Court’s decision vacating the arbitration award.

B. Enforcement of the arbitration award judicially sanctions a policy that compromises the health and safety of NHL players.

This Court should affirm the Appellate Court’s decision vacating the arbitration award

because it promotes policies that compromise the health and safety of Players, thus is contrary to

clearly defined public policy. It is well settled public policy that employers must provide

employees with a place of employment that is free from hazards which are likely to cause illness

or death. The Occupational Health and Safety Administration (“OSHA”) over time has

monitored organizations to ensure they are promoting healthy and safe workplace practices.

Since 2008, OSHA has stated that it has jurisdiction to regulate professional sports if the athletes

are considered employees. Occupational Health and Safety Administration, Standard

Interpretations (September 12, 2008). As a member of a union that reached a CBA with the

NHL, Scott and fellow players fall squarely within the definition of an employee. R. at 3.

As employees, Scott and fellow players are entitled to the same health and safety

protections OSHA strives to establish. A vital part of promoting health and safety for employees

in professional hockey is warning players about the potential risks associated with the use of

supplements. General warnings about sleep aids and informing players that they are not to do

business with the manufacturer of a supplement does not achieve this end. If the NHL placed the

health and safety of the players at the forefront, explicit warnings about the known contents of

supplements would be mandatory. Dr. Schrute and the NHL are hiding the ball from players to

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the detriment of the players’ health and safety. Dr. Schrute had a responsibility, under the terms

of the Policy, to educate players regarding prohibited supplements. Dr. Schrute never made any

reasonable effort to warn players that SuperDope contained Narcotussin. The failure to issue a

specific warning to players frustrates the purpose of Policy and the league’s ultimate goal to

protect their athletes. Confirming the arbitration award would allow Dr. Schrute, Halpert, and

Vance to continue to engage in Policy implementation which is contrary to the public policy of

promoting health and safety in the workplace. By vacating the arbitration award, this Court can

require transparency from the NHL. This transparency would ultimately promote Policy

implementation that is more focused on the health and safety of players.

CONCLUSION

For the foregoing reasons, Scott respectfully requests this Court to affirm the judgment of

the Appellate Court of Tulania and hold that: (1) Scott’s DATWA claims are not preempted by §

301 of the LMRA because his claim is based on rights found in the DATWA, not the CBA or

Policy, and resolution of the claim does not require interpretation of the CBA or Policy and (2)

the arbitration award enforces a breach of a fiduciary duty and promotes a policy which

compromises the health and safety of Players, thus must be set aside.

Respectfully submitted, _____TEAM 18_______

Counsel for Respondent Dated: January 7, 2018