ORIGINAL

IN THE SUPREME COURT OF OHIO 11-1443 LECHARLES BENTLEY,

Plaintiff-Appellee, On Appeal from the Cuyahoga County Court of Appeals, V. Eighth Appellate District

CLEVELAND BROWNS Court of Appeals Case No. CA-10-95921 FOOTBALL CO., LLC, et al.,

Defendants-Appellants.

MEMORANDUM IN SUPPORT OF JURISDICTION OF DEFENDANTS-APPELLANTS THE CLEVELAND BROWNS FOOTBALL COMPANY LLC AND THE CLEVELAND BROWNS HOLDING COMPANY LLC

Shannon J. Polk (0072891) Frederick R. Nance (0008988)* [email protected] [email protected] Andrew A. Kabat (0063720) J. Philip Calabrese (0072709) akabat@ haberpolk com Phil. [email protected] Daniel M. Connell (0078418) Chaundra C. Monday (0078419) dconnell @ haberpolk. com [email protected] HABER POLK KABAT, LLP SQUIRE, SANDERS & DEMPSEY (US) LLP 737 Bolivar Rd., Suite 4400 4900 Key Tower Cleveland, OH 44115 127 Public Square Cleveland, Ohio 44114 Patrick J. Krebs (0072828) (216) 479-8500 (telephone) [email protected] (216) 479-8780 (facsimile) Philip R. Bautista (0073272) pbautista @ taftlaw. com Attorneys for Defendant-Appellants TAFT STETTINIUS & HOLLISTER LLP Cleveland Browns Football Company LLC and 200 Public Square, Suite 3500 Cleveland Browns Holding Company LLC Cleveland, OH 44114 "Counsel of Record Attorneysfor Plaintiff-Appellee LeCharles Bentley ^OL C© AUG 22 2011 CLERK OF COURT SUPREME COURT OF ®HIO TABLE OF CONTENTS

This Is a Case of Public and Great General hiterest ...... 1

Statement of the Case and Facts ...... 2

A. Mr. Bentley Is a Party to Contracts Containing Broad Arbitration Clauses and an Exculpatory Clause Limiting the Liability of the B rowns ...... :...... 2

B. The Court Below Validated Plaintiff's Artful Pleading to Evade His Arbitration Agreement and Deferred to a Federal Court's Application of a Standard for Determining Arbitrability That Is Inconsistent with Ohio Law ...... 4

Arguments in Support of Propositions of Law ...... 6

Proposition of Law No. I: A plaintiff may not avoid an obligation to arbitrate by artfully pleading claims for fraud, negligent misrepresentation, or other torts. In determining whether such claims are arbitrable, a court must examine the relationship between the parties as defined by their agreements ...... :...... 6

Proposition of Law No. II: In determining a dispute's arbitrability, an Ohio court may not defer to a federal standard that is narrower than or otherwise inconsistent with Ohio law ...... 11

Conclusion ...... 15

Appendix

Opinion and Judgment Entry of the Eighth District Court of Appeals (July 7, 2011) TffiS IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST

This case presents an issue of first impression in Ohio: whether a plaintiff bound by a collective bargaining agreement can avoid the agreement's obligation to arbitrate by artfully pleading contract claims as claims for fraud and negligent misrepresentation. Additionally, this

Court has not spoken to the consequences of using a federal standard for determining arbitrability under Ohio law that is narrower than or otherwise inconsistent with Ohio law.

Plaintiff-Appellee LeCharles Bentley, a former professional football player under contract with Defendants-Appellants Cleveland Browns Holding Company LLC and Cleveland

Browns Football Company LLC (collectively, the "Browns"), took the benefits of his multi-

million dollar contract with the team, but seeks to avoid his contractual agreement to arbitrate

disputes. The Browns paid Mr. Bentley over $15 million despite the fact that he never played in

a single game for the team due to the injury underlying this litigation. The Browns did so to live

up to the contract they entered into with Mr. Bentley. Years later, Mr. Bentley brought this

litigation seeking to avoid his obligations under that same contract by artfully alleging tort claims

for fraud and negligent misrepresentation for events related to the parties' contractual

undertakings. The Eighth District Court of Appeals permitted him to do so by deferring to the

ruling of a federal court that applied a standard for determining arbitrability that is narrower than

and inconsistent with Ohio's strong presumption in favor of arbitration.

Moreover, the Eighth District's decision created a new standard for determining

arbitrability. Instead of looking past the formal legal theories pled to the substance of the facts

alleged, the court below never determined whether those factual allegations "touch matters

covered by the agreement." hideed, even though multiple aspects of the factual allegations

"touch" upon matters governed by the written agreements between the parties, including an

1 exculpatory clause limiting the liability of the Browns, the Eighth District endorsed creative pleading to evade the State's strong presumption in favor of arbitration.

The public and great general interest in the proper resolution of these issues is manifest.

Whether in the collective bargaining context or by contract more generally, this controversy goes to the heart of one of the most basic attributes of a viable commercial marketplace-the predictability and certainty that comes from parties' ability to enforce bargained-for dispute

resolution procedures. If a party can avoid analysis by a reviewing court of whether the pleaded

facts touch upon matters addressed in a contract simply by never mentioning the contract in its

complaint, then creative lawyering stands to trump every arbitration provision in every contract

in the State. The Eighth District decision, if allowed to stand, invites any party seeking to avoid

contractually mandated arbitration, and Ohio's statutory presumption and strong public policy in

favor of arbitration, to do so simply by filing a complaint that avoids reference to the contract.

This untenable status quo compels this Court to speak to these issues in this case because of the

wide-ranging and perverse consequences not only for every collective bargaining agreement in

the State, but also for every contract that contains an arbitration clause. For all these reasons, as

more fully explained below, the Court of Appeals' ruling is of public and great general

importance. This Court should accept jurisdiction to address this case on the merits.

STATEMENT OF THE CASE AND FACTS

A. Mr. Bentley Is a Party to Contracts Containing Broad Arbitration Clauses and an Exculpatory Clause Limiting the Liability of the Browns.

Plaintiff-Appellee LeCharles Bentley executed a multi-million dollar contract with the

Browns. Mr. Bentley signed an individual NFL Player Contract which, by its terms incorporated

and caused him to be bound by the terms of the NFL Collective Bargaining Agreement. Mr.

Bentley's NFL Player Contract contains a mandatory arbitration clause obligating him to "submit

2 to final ^nd binding arbitration" "any dispute between the Player and Club involving the interpretation or application of any provision of this contract "(NFL Player Contract at 3, 119; see also CBA App. C 119.)

The NFL Collective Bargaining Agreement contains two broad dispute resolution provisions that establish a comprehensive framework for resolution of disputes between players and their.teams through arbitration. This framework requires Mr. Bentley to file either a non- injury or injury grievance pursuant to Article IX or X, respectively, to pursue his claims. With respect to non-injury grievances, Article IX provides for resolution "exclusively" through

arbitration of "[a]ny dispute" "involving the interpretation of, application of, or compliance with,

any provision of this Agreement [or] the NFL Player Contract . . . pertaining to terms and

conditions of NFL players." (CBA, Art. IX, § 1.) Similarly, Article X defines an "injury

grievance" as "a claim or complaint that arises at the time a player's NFL Player Contract was

terminated by a Club, the player was physically unable to perform the services required of him

by that contract because of an injury incurred in the performance of his services under that

contract" (CBA, Art. X, § 1), and requires that an injury grievance follow set procedures for

resolution through arbitration (CBA, Art. X, §§ 2, 7 & 8).1

One provision of the NFL Collective Bargaining Agreement in particular, Article XLIV,

directly bears on the liability of a professional football team in the circumstances of this case.

Under Article XLIV, when a player elects to have his physician perform surgery, the player's

I iPlaintiff's argument below that these provisions deny him a remedy rings hollow. Nowhere do these arbitration provisions suggest that an injury sustained at the team's facility while undergoing rehabilitation during preseason training camp does not qualify as "an injury incurred in the performance of his services under that contract." Further, these provisions contain no requirement that an injury occur during a game or a preseason practice. Indeed, they are so broad that "[a] player need not be under contract to a Club at the time a grievance relating to him arises or at the time such grievance is initiated or processed." (Art. IX, § 2.)

3 team is not liable for the adequacy or competency of the surgery or any related medical services, including post-surgery care and treatment. That article provides, in relevant part:

Section 4. Players' Right to a Surgeon of His Choice: A player will have the right to choose the surgeon who will perform surgery .... Any such surgery will be at Club expense; provided, however, that the Club, the Club physician, trainers and any other representative of the Club will not be responsible for or incur any liability (other than the cost of the surgery) for or relating to the adequacy or competency of such surgery or other related medical services rendered in connection with such surgery.

(CBA, Art. XLIV, at 197 (emphasis added).) Any arguments Plaintiff may raise against the applicability of this clause to his medical care at the Browns' training facility are exclusively the province of a seasoned NFL arbitrator familiar with the interplay and intricacies of the NFL

Player Contract and NFL Collective Bargaining Agreement.

B. The Court Below Validated Plaintiff s Artful Pleading to Evade His Arbitration Agreement and Deferred to a Federal Court's Application of a Standard for Determining Arbitrability That Is Inconsistent with Ohio Law.

This case arises from a knee injury that Mr. Bentley suffered while participating in his

first day of practice at preseason training camp with the Browns. The next day, Mr. Bentley

underwent surgery to replace the patellar tendon of his left knee. Mr. Bentley began a post-

operative recovery regimen of physical therapy and medical care and treatment, including at the

Browns' training facility in Berea. About a month after his surgery, Mr. Bentley was diagnosed

with a staph infection. Plaintiff alleges his staph infection arose from his rehabilitative care and

treatment at the Browns' training facility during training camp.

Instead of pursuing his grievance through arbitration, as required under his NFL Player

Contract and the NFL Collective Bargaining Agreement, Mr. Bentley filed a complaint against

the Browns in the Cuyahoga County Court of Common Pleas. hi his complaint, Plaintiff

asserted two causes of action-one for fraud and the other for negligent misrepresentation-

4 relating to the staph infection Mr. Bentley suffered while he was under contract with the Browns.

Specifically, Mr. Bentley alleged the Browns made misrepresentations and omissions by disclosing or failing to disclose certain information about the claimed condition of the team's training facility in Berea, Ohio 2 The Browns sought to enforce their right to arbitrate, and

Plaintiff filed a 41-page opposition to the motion. Less than two business days later, the trial court summarily denied the Browns' motion without opinion. The Browns timely appealed.

On July 7, 2011, the Eighth District Court of Appeals affirmed the judgment of the trial court. In its ruling, the appellate court deferred to a decision by the Northern District of Ohio in

Jurevicius v. Cleveland Browns Football Co., No. 1:09-CV-1803 (N.D. Ohio Mar. 31, 2010), holding that "[w]e agree with the federal court's determination that the claims for fraud and negligent misrepresentation do not implicate the [NFL Collective Bargaining Agreement]. We

see no reason to depart from that determination." Slip op. at 8. In Jurevicius, a different former

player sued the Browns and several other defendants asserting eight causes of action, including

fraud and negligent misrepresentation, arising from different alleged injuries. Slip op. at 7. The

Browns removed that case to federal court, which determined that certain claims were arbitrable

but that others were not, including fraud and negligent misrepresentation. Slip op. at 8. In

reaching its decision, the federal court expressly did not consider Article XLIV (the exculpatory

clause) of the NFL Collective Bargaining Agreement because it believed that the provision could

not provide the basis for federal jurisdiction: "This argument, that the CBA limits Browns

Defendants' liability, is a defense to Plaintiff's claim. As such, it does not have any effect on the

question of whether federal jurisdiction exists for any of Plaintiff's claims."

2 Plaintiff asserts only the business torts of fraud and negligent misrepresentation against the Browns-and not personal injury claims-because Ohio's two-year statute of limitations for personal injuries expired in 2008. See Ohio Rev. Code § 2305.10. Plaintiff brought his claims three years and eleven months after his underlying injury.

5 By contrast, the Eighth District in this case was obliged to consider Article XLIV, at least to determine whether the facts as pled "touched" that provision. Instead, it simply deferred to the

Jurevicius ruling. In doing so, the court below relied on this Court's decision in Academy of

Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St. 3d 185, 2006-Ohio-657, 842 N.E.2d

488, for the proposition that "a state court may rely on a federal standard in applying Ohio law

on the issue of arbitrability :" Slip op. at 8. But the Eighth District offered no explanation for

how this dispute may be resolved without interpreting or applying the limitation of the team's

liability found in Article XLIV, even as it acknowledged that other federal courts have

compelled arbitration of disputes between former players and their teams based on that same

provision of the NFL Collective Bargaining Agreement.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: A plaintiff may not avoid an obligation to arbitrate by artfully pleading claims for fraud, negligent misrepresentation, or other torts. In determining whether such claims are arbitrable, a court must examine the relationship between the parties as defined by their agreements.

Plaintiff asserts causes of action for fraud and negligent misrepresentation, based largely

on allegations that the Browns failed to disclose or concealed information that the team had a

duty to disclose. The court below would have litigants determine the arbitrability of these claims

based on one party's stylized allegations without regard for their substance or the relationship

between the parties, including any collective bargaining agreement. According to the court

below, "nothing in the CBA required Bentley to utilize the Cleveland Browns facility" and

Plaintiff "could have chosen any facility in the country for his rehabilitation and would not have

contravened the CBA." Slip op. at 10.3 These "facts," which are actually interpretations of the

3 In its opinion, the Eighth District claimed that the Browns conceded as much at oral argument. Slip op. at 10. Plaintiff's counsel can be expected to argue that this language in the

6 NFL Collective Bargaining Agreement within the exclusive province of an arbitrator, made it

"unnecessary to analyze the CBA to resolve the claims that arose from his contracting the staph infection at the Cleveland Browns facility." Id. In other words, the lower court assumed that, even if Mr. Bentley was not required to rehabilitate at the Browns' facility, the NFL Player

Contract and NFL Collective Bargaining Agreement had no governing provisions when Mr.

Bentley did his rehabilitation there.

But by assuming away the question of arbitrability, the court below devised a novel and

unduly restricted formulation of Ohio law that threatens to remove a class of cases from

arbitration any time a litigant retains creative counsel who artfully pleads around the existence of

a contractual arbitration provision. Here, after sustaining an injury during preseason training

camp, Mr. Bentley decided to rehabilitate at the Browns' facility to try to return to play. Given

the number of provisions in the parties' agreements that apply in such circumstances,4 Plaintiff

simply avoided mentioning his individual NFL Player Contract or the NFL Collective

Bargaining Agreement at all. By validating this litigation tactic, the court below sidestepped

ruling should somehow lead this Court to decline jurisdiction. Contrary to the appellate court's claim, the Browns sharply disputed the point below. But the question is irrelevant to the determination of arbitrability which, in fact, is what the Browns responded at oral argument when asked whether Mr. Bentley was required to undergo rehabilitation at the Browns' facilities. First, whether the NFL Collective Bargaining required Mr. Bentley to rehabilitate at the team's facility or anywhere else necessarily involves interpretation of the agreement. Second, having rehabilitated at the team's facility-whether required to or not-the standard of care and Plaintiff's rights and obligations are defined by the parties' contracts.

4 See, e.g., NFL Player Contract, Paragraph 8 (requiring Bentley to "maintain himself in excellent physical condition" "to the satisfaction of the Club physician"); Id. 19("Player will receive such medical and hospital care during the term of this contract as the Club physician may deem necessary."); CBA Art. XLIV, § 1(creating duty to inform a player of physical conditions "which could adversely affect the player's performance or health"); Id. at Art. VIII, § 1(a) (subjecting players to discipline for a "material failure to follow rehabilitation program[s] prescribed by [the] Club physician or trainer" or a "material failure to follow Club rehabilitation directions" and affording teams the right to "direct" and monitor their players' rehabilitation regimens).

7 analysis of whether Plaintiff's allegations "touch" any of these provisions, creating a new standard for determining arbitrability, elevating form over assumed substance.

In numerous cases, other courts have looked past the tort claims alleged and compelled arbitration of similar or analogous disputes over medical care provided to professional football players pursuant to the NFL Collective Bargaining Agreement.5 In doing so, these other courts rejected the argument, apparently accepted below, that "because [a plaintiff's] claims do not contend that the [team] failed to comply with the specific provisions of the CBA, the claims cannot be preempted." Jeffers v. D'Alessandro, 681 S.E.2d 405, 414 (N.C. Ct. App. 2009).

Indeed, the Jeffers Court went on to observe that: "The assumption that the labor contract creates no implied rights is not one that state law may make. An arbitrator might construe the labor contract to provide relief implied from the contract." Id. (citation omitted).

This Court has acknowledged that "even real torts can be covered by arbitration clauses if the allegations underlying the claims touch matters covered by the [agreement]." Alexander v.

Wells Fargo Fin. Ohio 1, Inc., 122 Ohio St. 3d 341, 2009-Ohio-2962, 911 N.E.2d 286, at 124

(citing Fazio v. Lehman Bros., Inc. 340 F.3d 386, 395 (6th Cir. 2003)) (emphasis added).

5 See, e.g., McPherson v. Tennessee Football, Inc., No. 06C3302 (Tenn. Cir. Ct. Apr. 1, 2008) (compelling arbitration under Tennessee law of claims arising from a mascot's injury during halftime, following remand from federal court); Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172, 1178 (N.D.N.Y. 1990) (dismissing claims for negligence and medical malpractice arising out of injuries sustained by a professional football player and resulting treatment by club doctors since the duty to provide medical care to players did not exist independent of the NFL Collective Bargaining Agreement); see also Smith v. Houston Oilers, Inc., 87 F.3d 717, 720-21 (5th Cir. 1996) (dismissing claims arising out of two players' compelled participation in an "abusive" rehabilitation and conditioning program sanctioned by the NFL Collective Bargaining Agreement). In fact, the ruling below marks the first time-according to the Browns' research-that any court has determined, based on the same NFL Player Contract and NFL Collective Bargaining Agreement, that a lawsuit by a former professional football player against his former team (as opposed to a third party) should be litigated rather than resolved through arbitration. Even the Jurevicius Court determined that some claims asserted there were arbitrable.

8 Similarly, in Aetna Health, Inc., 108 Ohio St. 3d 185, 2006-Ohio-657, 842 N.E.2d 488, at 119, this Court recognized that "[a]rbitration is not limited to claims alleging a breach of contract, and creative pleading of claims as something other than contractual cannot overcome a broad arbitration provision." Further, this Court agreed with Fazio that "a proper method of analysis

... is to ask if an action could be maintained without reference to the contract or relationship at issue." Id. at y[ 24. In undertaking this inquiry, the Fazio test "allows courts to make determinations of arbitrability based upon the factual allegations in the complaint instead of on the legal theories presented." Id at 129.

But this Court has not addressed this issue within the context of a collective bargaining

agreement. Nor has this Court gone beyond articulating general principles in cases like

Alexander and Aetna Health. In Alexander, the issue before this Court was whether statutory

claims for delay in recording a mortgage satisfaction are governed by an arbitration agreement

between the parties. Alexander, 122 Ohio St. 3d 341 at 11. In Aetna Health, the plaintiffs filed

an antitrust claim, alleging that the defendants engaged in a conspiracy to set artificially low

reimbursement rates, and the question was "whether the appellate court employed the proper test

for determining the scope of the arbitration clause at issue." Aetna Health, 108 Ohio St. 3d 185

at 1 15. Neither Alexander nor Aetna Health involved fraud or negligent misrepresentation

claims, in neither case were the relevant general principles articulated by this Court outcome

determinative, and neither case yielded a holding by this Court directed to a circumstance such as

here where a party tries to avoid a collective bargaining agreement's obligation to arbitrate.

Accordingly, the issues presented are ripe for this Court's determination.

Examining the relationship between the parties based on the agreements at issue here

readily demonstrates the artful pleading used to sidestep the NFL Collective Bargaining

9 Agreement's broad arbitration provisions. Plaintiff's fraud claim requires a determination

whether a fiduciary or other similar relationship existed between Mr. Bentley and the Browns.

See State v. Warner (1990), 55 Ohio St. 3d 31, 54, 564 N.E.2d 18 ("One who fails to disclose

material information prior to the consummation of a transaction commits fraud only when he is

under a duty to do so. And the duty to disclose 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.") (quotations omitted) (emphasis added). Siniilarly, Plaintiff's

negligent misrepresentation claim requires interpretation of Mr. Bentley's NFL Player Contract

and the NFL Collective Bargaining Agreement. Under Ohio law, a negligent misrepresentation

claim requires a showing that the defendant, in the course of his business, supplies information

for the guidance of others in their business transactions. Delman v. City of Cleveland Heights

(1989), 41 Ohio St. 3d 1, 4, 534 N.E.2d 835.

Therefore, determining whether the relationship between the Browns and Mr. Bentley

included the various duties to communicate alleged requires interpretation and application of

various provisions of the NFL Player Contract and NFL Collective Bargaining Agreement

establishing and governing the parties' relationship. Indeed, courts have recognized that the

NFL Collective Bargaining Agreement creates a player's right to medical care. For example, in

Stringer v. National Football League, 474 F. Supp. 2d 894, 906 (S.D. Ohio 2007), the Southern

District of Ohio opined that its "provisions impose specific duties on the individual [football]

clubs and players and bestow on the players certain rights related to their medical care." The

Eighth District's ruling to the contrary effectively withdraws such claims from arbitration and

invites litigants seeking to avoid arbitration the means to do so simply by pleading claims for

10 fraud or negligent misrepresentation. But Ohio law does not automatically carve out such claims from arbitration or countenance the use of creative pleading to avoid an agreement to arbitrate.

Because the NFL Collective Bargaining Agreement establishes the rights and obligations of the parties here, including the duty of the Browns to provide adequate medical care to its players, resolution of Mr. Bentley's state-law claims requires interpretation of the NFL

Collective Bargaining Agreement and his claims cannot be resolved independently of that agreement. The court below encourages resort to litigation where tactically advantageous, upsetting the balance struck by Ohio law that encourages resolution by an arbitrator with

expertise in the affected contractual relationship and promotes overall economies to the parties

and the judiciary. Such matters are of particular importance in a state such as Ohio with its large

number of workers and employers covered by collective bargaining agreements. By opening the

courthouse doors to skilled lawyers for parties seeking to avoid contractually agreed upon

arbitration, the ruling below carries far-reaching consequences for all businesses in the State.

Proposition of Law No. II: In determining a dispute's arbitrability, an Ohio court may not defer to a federal standard that is narrower than or otherwise inconsistent with Ohio law.

This Court has held that "a state court may rely on a federal standard in applying Ohio

law on the issue of arbitrability" only in certain limited circumstances: "that [federal] standard

must be consistent with Ohio law and must reflect a correct statement of the applicable federal

jurisprudence." Aetna Health, 108 Ohio St. 3d 185 at 9[15 (emphasis added). While it might not

be error for Ohio courts to consider arbitrability under Ohio law using a federal standard, this

Court has not yet spoken to a circumstance, such as here, where the federal standard employed is

narrower than or otherwise inconsistent with Ohio's strong policy favoring arbitration. The

11 Eighth District's ruling demonstrates the need for this Court to intervene to vindicate Ohio's

Arbitration Act against rote invocation of an inconsistent federal standard.

Here, the Eighth District deferred to the ruling of a federal court with no analysis of whether that federal standard is consistent with Ohio law or a correct statement of the applicable federal law: "we agree with the federal court's opinion that the claims for fraud and negligent

misrepresentation do not implicate the CBA. We see no reason to depart from that

determination." Slip op. at 8. But the ruling below contains no evidence that the appellate court

discharged its responsibility to confirm that the federal standard followed is consistent with Ohio

law. In fact, the federal court to which the court below deferred did not apply an arbitrability

standard consistent with Ohio law. This is so for the simple reason that the federal court was

engaged in a jurisdictional preemption analysis in a case removed to federal court-not a pure

arbitrability analysis. In Jurevicius, the Browns removed the case to federal court asserting

federal question jurisdiction under the federal Labor Management Relations Act, 29 U.S.C.

§ 185, which completely preempts state-law claims involving interpretation of a collective

bargaining agreement. See, e.g., Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172, 1178

(N.D.N.Y. 1990) (dismissing tort claims arising out of injuries sustained by a professional

football player and resulting treatment by club doctors since the duty to provide medical care to

players did not exist independent of the NFL Collective Bargaining Agreement).

The differences between the Jurevicius Court's approach and arbitrability under Ohio law

are easily demonstrated. First, as this Court has explained, Ohio law embodies a strong

"presumption in favor of arbitration." Alexander, 122 Ohio St. 3d 341 at 130. As a result,

parties opposing motions to stay proceedings pending arbitration face a "heavy burden." Stocker

v. Castle Inspections, Inc. (1995), 99 Ohio App. 3d 735, 737, 651 N.E.2d 1052. In fact, this

12 Court has recognized that an arbitration clause should not be denied effect unless it can be said

with "positive assurance" that the clause "is not susceptible to an interpretation that covers the

asserted dispute." Aetna Health, 108 Ohio St. 3d 185, at 114. Furthermore, all "[d]oubts should

be resolved in favor of coverage" by the arbitration provision. Id. In stark contrast, "there is a

presumption against federal preemption." Alexander, 122 Ohio St. 3d 341, at 130.

Moreover, because the Jurevicius Court's analysis arose in the context of removal, the

federal court ruled that it could not consider the Browns' defenses, including Article XLIV of the

NFL Collective Bargaining Agreement, which specifically limits the team's liability: "This

argument, that the CBA limits Browns Defendants' liability, is a defense to Plaintiff's claim. As

such, it does not have any effect on the question of whether federal jurisdiction exists for any of

Plaintiff's claims."6 In determining arbitrability, however, Ohio law does not exclude

consideration of defenses. Therefore, because the Eighth District relied on a federal standard

inconsistent with Ohio law, it improperly shifted the burden to the Browns to surmount a federal

presumption in presumption against preemption, when it should have been applying a strong

favor of arbitration. It further refused to consider provisions of the parties' agreements limiting

the team's liability and providing additional defenses to Plaintiff's claims even though Ohio law

makes plain that such provisions must enter into a court's arbitrability analysis.

Not only did the Eighth District rely on an improper federal standard, but it also

articulated an incomplete and inaccurate statement of the law laid down by this Court. The court

below relied on this Court's ruling in Aetna Health for the proposition that "a state court may

6 For this reason, the federal court employed a standard that is an incorrect statement of the applicable federal law. The federal court believed that the Browns' defenses could not provide the basis for federal jurisdiction. But because the federal Labor Management Relations Act completely preempts state law, the "complete preemption" exception to the well-pleaded complaint rule, on which the federal court relied to avoid consideration of the Browns' defenses, applies. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003).

13 rely on a federal standard in applying Ohio law on the issue of arbitrability." Slip. op. at 8.

Tellingly, the appellate court provided no citation for this proposition because the formulation

employed below finds no support in this Court's precedent. This Court has made clear that any

federal standard an Ohio court employs when applying Ohio law to determine arbitrability "must

be consistent with Ohio law and must reflect a correct statement of the applicable federal jurisprudence"-language conspicuously omitted by the court below. Aetna Health, 108 Ohio

St. 3d 185, at 115. By altering this Court's standard for determining arbitrability under Ohio

law by reference to any federal standard, not just one consistent with Ohio law as this Court

previously directed, the ruling below invites courts in the Eighth District and throughout the

State to make rulings on arbitrability under an incorrect legal standard-one that threatens to

undermine Ohio's strong public policy in favor of arbitration.

Such disregard for the parties' agreements to arbitrate, if allowed to stand, will carry

serious and far-reaching consequences for businesses throughout Ohio. The ruling below carries

far greater implications than allowing any player for either of the State's two professional

football teams to bypass the NFL Collective Bargaining Agreement in favor of litigating

grievances. Because Plaintiffs individual NFL Player Contract also contains a broad arbitration

clause, the Eighth District's hostility to arbitration extends to any contract in Ohio containing an

arbitration provision. As a result, instead of compelling arbitration absent "positive assurance"

that a dispute is not arbitrable, see, e.g., Aetna Health, 108 Ohio St. 3d 185, at 114, the ruling

below erodes the ability of parties to enforce their agreements. In fact, the only limit on the

ability of parties to arbitration agreements to evade such an obligation in favor of litigation is the

willingness and creativity of lawyers to plead around agreements to arbitrate. The Eighth

District's ruling invites counsel to engage in the exercise, to the detriment of the efficient and

14 expedient resolution of disputes through alternatives to litigation and at greater cost to the judicial system as a whole.7

CONCLUSION

For all these reasons, this case involves matters of public and great general interest.

Defendants-Appellants respectfully request that this Court accept jurisdiction in this case so that

the important issues presented will be reviewed on the merits.

August 22, 2011 Respectfally submitted,

Frederick R. Nance (0008988) Frederick.Nance @ ssd. com J. Philip Calabrese (0072709) Phil. Calabrese @ ssd. com Chaundra C. Monday (0078419) [email protected] SQUIRE, SANDERS & DEMPSEY (US) LLP 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 (216) 479-8500 (telephone) (216) 479-8780 (facsimile)

Attorneys for Defendant-Appellants Cleveland Browns Football Company LLC and Cleveland Browns Holding Company LLC

7 To oppose this Court's jurisdiction, the Browns anticipate that Plaintiff will assert various waiver arguments, as Plaintiff did below. By omitting these arguments from its ruling, the appellate court found them to be without merit. This Court should as well. In any event, "whether an arbitration provision applies requires an interpretation of a contract. Interpretation of a contract is a question of law; thus[,] . . . a de novo standard of review" is employed. Cleveland-Akron-Canton Adver. Coop. v. Physician's Weight Loss Ctrs. of Am., 184 Ohio App. 3d 805, 2009-Ohio-5699, 922 N.E.2d 1012, at 9[ 9(internal quotation marks omitted). In an appeal subject to de novo review, the doctrine of waiver does not hold. See, e.g., Wilson v. Glastic Corp., 150 Ohio App.3d 706, 2002-Ohio-6821, 782 N.E.2d 1208, at 9[19 n.1. This Court should not be distracted or deterred by any such arguments.

15 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendants-Appellants' Memorandum in

Support of Jurisdiction was sent via Regular United States Mail this 22nd day of August 2011, with a courtesy copy sent by e-mail, to the following:

Shannon J. Polk Andrew A. Kabat Daniel M. Connell HABER POLK KABAT, LLP 737 Bolivar Rd., Suite 4400 Cleveland, OH 44115

Patrick J. Krebs Philip R. Bautista TAFT STETTINIUS & HoLLiSTER LLP 200 Public Square, Suite 3500 Cleveland, OH 44114

Counsel for Plaintiff LeCharles Bentley

One of thKAttbeaeeys for Defendant-Appellants Cleveland Browns Football Company LLC and Cleveland Browns Holding Company LLC

16 APPENDIX JUL 0 7 2011

Ou^t of Zfppeato of Obta

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95921

LECHARLES BENTLEY

PLAIIVTIFF-APPELLEE

vs. CLEVELAND BROWNS FOOTBALL CO., LLC, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-732395

BEFORE: Blackmon, P.J., Jones, J., and Cooney, J.

RELEASED AND JOURNALIZED: July 7, 2011 Y3^J733 auJ 954 ATTORNEYS FOR APPELLANTS

Frederick R. Nance J. Philip Calabrese Chaundra C. Monday Squire, Sanders & Dempsey (US) LLP 4900 Key Tower 127 Public Square Cleveland, Ohio 44114-1304

ATTORNEYS FOR APPELLEE

Shannon J. Polk Andrew A. Kabat Daniel M. Connell Haber Polk Kabat, LLP 737 Bolivar Road, Suite 4400 FILED AND JOURhALIZE{7 Cleveland, Ohio 44115 PER APP.R. 22(0)

Patrick J. Krebs

Philip R. Bautista GER Taft Stettinius & Hollister, LLP ERK OF T^EI OY F f FtY 200 Public Square, Suite 3500 Cleveland, Ohio 44114

P.6J9 55 -1-

PATRICIA ANN BLACKMON, P.J.:

Appellant Cleveland Browns Football Company, LLC ("Cleveland

Browns") appeals the trial court's denial of its motion to compel arbitration and assigns the following error for our review:

"l. When it denied the Clevelhnd Browns their right to enforce the alternative dispute resolution clauses of the NFL Player's Contract of Plaintiff-Appellee LeCharles Bentley and the Collective Bargaining Agreement, the trial court erred as a matter of law under Chapter 2711 of the Ohio Revised Code, which embodies Ohio's strong policy in favor of arbitration, and Section 301 of the Federal Labor Management Relations Act, which preempt state-law claims that involve interpretation of a collective bargaining agreement."

Having reviewed the record and pertinent law, we affirm the trial court's decision and remand for further proceedings consistent with this opinion. The apposite facts follow.

On March 1, 2006, LeCharles Bentley executed a six-year National

Football League ("NFL") Player's contract with the Cleveland Browns. As part of Bentley's employment with the Cleveland Browns, he entered into an NFL

Collective Bargaining Agreement ("CBA"). On July 27, 2006, during the Browns preseason training, Bentley tore his left knee patellar tendon; he had surgery the following day to repair the injury.

Three days later, he began a post-operative regimen of physical therapy, medical care, and treatment at the Cleveland Browns training facility in Berea, y^10 733 Pan 0 9 S6 -2-

Ohio. On August 22, 2006, he was unable to walk; his knee swelled, and he experienced flu-like symptoms. The Cleveland Browns immediately advised

Bentley to get his blood tested. Bentley was subsequently diagnosed with a staph infection; thereafter, he had multiple surgeries; he also had other medical procedures designed to eradicate the infection.

On July 22, 2010, Bentley filed a complaint against the Cleveland Browns asserting causes of action for fraud and negligent misrepresentation. Bentley specifically alleged that he contracted a staph infection at the Cleveland Browns' training facility while undergoing post-operative rehabilitation on his torn left knee patellar tendon. Bentley alleged that the Cleveland Browns owns, operates, and maintains the training facility, which was open to both NFL players and non-NFL members of the general public.

Bentley also alleged that the Cleveland Browns' head athletic trainer,

Marty Lauzon, represented that the facility was a "world class facility" with a strong track record for successfully rehabilitating other Cleveland Browns' players, such as Braylon Edwards and Kellon Winslow. In addition, General

Manager Phil Savage represented that the Cleveland Browns had the best of everything.

Bentley further alleged that based on the above representations, he chose to use the Cleveland Browns' training facility, although nothing required him to

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use the facility. Finally, Bentley claims that he was exposed to unsanitary

conditions or rehabilitation devices and surfaces, as well as other equipment

that had not been properly maintained, disinfected, or cleaned; he claims

because of these misrepresentations, he was injured.

Ori Septeiriber 22; 2010, the Cleveland Browns filed a motion to stay the

case pending arbitration or, in the alternative, to compel arbitration. In

addition, the Cleveland Browns also moved to stay discovery pending

determination of the proper forum for resolving the conflict with Bentley.

Bentley opposed both motions. On October 22 and 26, 2010, respectively, the

trial court denied. Cleveland Browns' motions to stay discovery and to compel

arbitration. The Cleveland Browns now appeal.

Motion to Compel Arbitration

In its sole assigned error, the Cleveland Browns argues the trial court

erred in denying its motion to compel arbitration.

In determining whether the trial court properly denied or granted a

motion to stay the proceedings and compel arbitration, the standard of review

is whether the order constituted an abuse of discretion. Panzica Constr. Co. v.

Zaremba, Inc., CuyahogaApp. No. 95103, 2011-Ohio-620, citing U.S. Bank,1V.A.

v. Wilkens, CuyahogaApp. No. 93088, 2010-Ohio-262. "The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made

4°OL^i33 PSJ958 -4- between competing considerations. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise ofjudgment but the defiance ofjudgment, not the exercise of reason but instead passion or bias."

-Nakoff v. Fairview 0en: Hosp: (1996), 75 Ohio St_3rI 254 662 N^E 2d 1.

This court has previously been split as to the standard of review for the granting or denial of a motion to compel arbitration and to stay proceedings pending arbitration. GBAZ 1, L.L.C. v. Arizona Motors, L.L.C., Cuyahoga App.

No. 95502, 2011-Ohio-1808. See Vanyo v. Clear Channel Worldwide, 156 Ohio

App.3d 706, 2004-Ohio-1793, 808 N.E.2d 482 (holding that the question of whether a party has agreed to submit an issue to arbitration is a question of law requiring de novo review). Cf. Bevan u. Owens-Illinois, Inc., Cuyahoga App. No.

84776, 2005-Ohio-2323; Siltes v. Ganley Pontiac Honda (Sept. 13, 2001),

Cuyahoga App. No. 79015 (holding that the appropriate standard of review is abuse of discretion).

In Taylor v. Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-

938, 884 N.E.2d 12, the Ohio Supreme Court clarified this issue and held that when determining the alleged unconscionability of an arbitration clause, the reviewing court must conduct a de novo review.

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However, the issue before this court does not involve an allegation of unconscionability of an arbitration clause. Rather, the issue is whether

Bentley's claims pertain to the CBA, thereby invoking the arbitration provision contained therein. Regardless of which standard of appellate review this court applies, abuse of discretian or de no"vo; we find that the t"rial court did not err in denying the Cleveland Browns' motion to compel arbitration and stay proceedings pending arbitration.

Ohio and federal courts encourage arbitration to settle disputes. Kelm v.

Kelm (1993), 68 Ohio St.3d 26, 27, 623 N.E.2d 39. We are mindful of the strong presumption in favor of arbitration as an efficient and economical alternative dispute mechanism. Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 712,

590 N.E.2d 1242. An arbitration clause in a contract is generally viewed as an expression that the parties agreed to arbitrate disagreements within the scope of the arbitration clause and with limited exceptions, an arbitration clause is to be upheld just as any other provision in a contract should be respected. Council of Smaller Enterprises v. Gates, McDonald & Co. (1998), 80 Ohio St.3d 661, 668,

687 N.E.2d 1352.

However, parties cannot be compelled to arbitrate a dispute that they have not agreed to submit to arbitration. Marks v. Morgan Stanley Dean Witter

CommercialFin. Servs., CuyahogaApp. No.88948, 2008-Ohio-1820, citingFiqua

^oL, 'u 7 33 Pd, 0 9 60 -6- v. Ohio Farmers Ins. Co. (1992), 84 Ohio App.3d 619, 621, 617 N.E.2d 780; St.

Vincent Charity Hosp. v. URS Consultants, Inc. (1996), 111 Ohio App.3d 791,

793, 677 N.E.2d 381; Shumaker v. Saks, Inc., 163 Ohio App.3d 173,

2005-Ohio-4391, 837 N.E.2d 393.

- In the instant case,- Beiitrey asserted causes of actions for frauct -iiiid- negligent misrepresentation against the Cleveland Browns. To prove fraud, a plaintiff must demonstrate: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it;

(5) justifiable reliance upon the representation; and (6) a resulting injury proximately caused by the reliance. Englert v. Nutritional Sciences, L.L.C., 10th

Dist. No. 07AP989, 2008-Ohio-5062, citing Williams v. Aetna Fin. Co. (1998), 83

Ohio St.3d 464, 475, 700 N.E.2d 859.

A claim of negligent misrepresentation requires the following: "`One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he- fails to exercise reasonable care or competence in obtaining or

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communicating the information."' Cleveland Constr., Inc. v. Roetzel & Andress,

L.P.A., CuyahogaApp. No.94973, 2011-Ohio-1237, quoting Delman v. Cleveland

Hts. (1989), 41 Ohio St.3d 1, 4, 534 N.E.2d 835, quoting Restatement of the Law

2d, Torts (1965) 126-127, Section 552(1)_

The Cleveland Browns argues that Bentley's fiaud and negl.igent"

misrepresentation causes.of actions are subject to the mandatory and exclusive

arbitration provisions of the CBA. However, this issue, involving the Cleveland

Browns and concerning allegations identical to Bentley's assertions, has recently

been addressed in Jurevicius v. Cleveland Browns Football (Mar. 31, 2010), N.D.

Ohio No. 1:09 CV 1803.

On June 26, 2009, Joe Jurevicius, also a professional football player then

under contract with the Cleveland Browns for the 2006 through.2009 seasons,

filed suit against the Cleveland Browns asserting eight causes of actions,

including fraud and negligent misrepresentation. Jurevicius, like Bentley,

alleged that he contracted a staph infection at the Cleveland Browns training facifity, while he was undergoing post-operative rehabilitation.

Similarly, Jurevicius alleged that the Cleveland Browns' head athletic trainer, then general manager, and then head coach made false representations regarding efforts to prevent staph infections at the facility. Jurevicius alleged that the Cleveland Browns concealed information about the lack of precautions

va0733 P63962 , -8- taken at the training facility to prevent staph infections. Jurevicius, as does

Bentley, alleged that he relied on the Cleveland Browns' representations to his detriment.

On August 3, 2009, the Cleveland Browns removed Jurevicius's case to federal court and argued; as they now do in Bentley's case, tliati the claiins required an interpretation of the CBA and were subject to arbitration. However, pertinent to the fraud and negligent misrepresentation claims, the federal court held that neither claim arose from nor required the interpretation of the CBA to determine their outcomes.

We agree with the federal court's determination that the claims for fraud and negligent misrepresentation do not implicate the CBA. We see no reason to depart from that determination. In Academy of Medicine of Cincinnati v. Aetna

Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, the Ohio

Supreme Court held that a state court may rely on a federal standard in applying Ohio law on the issue of arbitrability. Consequently, we conclude that the trial court did not err when it denied the Cleveland Browns' motion to compel arbitration.

Nonetheless, the Cleveland Browns rely on Jeffers v. D'Allessandro (2009),

199 N.C.App. 86, 681 S.E.2d 405, and Sherwin v. Indianapolis Colts, Inc.

(N.D.N.Y.1990), 752 F. Supp. 1172, 1178 to support their claim that Bentley's

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claims of negligent misrepresentation are substantially dependent upon an

analysis of the CBA and therefore subject to arbitration. However, we find both

Jeffers and Sherwin distinguishable from the present case.

In Jeffers, a former professional football player brought an action against a physician and clinic for medical- malpractice and against a foothall team for negligent retention, intentional misconduct, and breach of implied warranty, alleging that the physician performed additional, unauthorized procedures during knee surgery that went beyond his informed consent.

Similarly, in Sherwin, a former professional football player brought suit alleging that the team and team doctors failed to provide adequate medical care, and intentionally withheld information regarding the true nature of his injury.

In both cases, the teams filed motions to dismiss or, in the alternative, to stay pending arbitration under the CBA between the league and players' union.

In both Jeffers and Sherwin, the courts generally concluded that the teams' duty to retain a team physician and the duty of the players to have a physician-patient relationship with that physician arose out of the CBA and required analysis of the CBA in order to be resolved.

In the instant case, Bentley's claims involve the staph infection he contracted during post-surgery rehabilitation in a facility that the Cleveland

Browns represented as a world-class facility and where other Cleveland Browns

V9L:s733 P60964 -10- football players, specifically Braylon Edwards and Kellon Winslow, had undergone successful post-surgical rehabilitation. It is undisputed that nothing in the CBA required Bentley to utilize the Cleveland Browns facility, a fact appellant's counsel conceded at oral argument. It is also undisputed that after

Bentley underwent knee surgery, he could have chosen any facility inthe country for his rehabilitation and would not have contravened the CBA.

Given that Bentley's post-surgical rehabilitation would not have contravened the CBA if be had chosen to go elsewhere, it would be unnecessary to analyze the CBA to resolve the claims that arose from his contracting the staph infection at the Cleveland Browns facility. As such, the trial court properly denied the Cleveland Browns' motion to compel arbitration.

Accordingly, we overrule the sole assigned error.

Judgment affirmed and case remanded for further proceedings consistent with this opinion.

It is ordered that appellee recover from appellants his costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

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A certified copy of this entry shall constitute the mandate pursuant to

Ri.rle 27 of the Rules of Appellate Procedure.

LARRY A. JONES, J., and COLLEEN CONWAY COONEY, J., CONCUR

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