Last June, former Philadelphia Union manager Peter Nowak sued Major League Soccer and the MLS Players Union for $1 million each in the of the U.S. District Court's Eastern District of Pennsylvania. Nowak claimed that the two entities played a role in his dismissal from PPL Park, and that their actions were illegal under Pennsylvania common law.
After a few months of back-and-forth proceedings, the MLS Players Union filed in November to dismiss the suit on the grounds that the federal National Labor Relations Act trumped the state statute.
This citation from the MLSPU's filing sums everything up pretty clearly:
Piotr Nowak, the former head coach of the Philadelphia Union professional soccer team, has filed a state common law tort suit against the MLS Players Union ("Players Union") alleging that the Players Union violated state law by demanding an investigation of Nowak's conduct, and by requesting that he be removed as the coach of the Philadelphia Union.
The Players Union's actions were protected by the National Labor Relations Act. As a result, Nowak's claim is preempted by federal law and must be dismissed because this Court lacks subject matter jurisdiction over that claim. Alternatively, even if his claim was not preempted, Nowak has failed to state a claim under state law.
As set forth below, the Players Union is the labor organization representing all of the players in Major League Soccer, including those that played for Nowak when he was the coach of the Philadelphia Union.
Nowak claims that the Players Union demanded an investigation into his conduct of a training exercise, during which players' health and safety was allegedly put at risk. He also alleges that the Players Union demanded his termination. These actions by the Players Union, Nowak claims, constitute a violation of state common law because they tortuously interfered with Nowak's contract with the team.
It is well-settled that federal labor law preempts state law claims when they concern conduct that is even arguably protected or prohibited by the National Labor Relations Act. Where, as here, a management official puts the health and safety of union members at risk, the National Labor Relations Act protects that union's right to complain about that conduct, and demand the official's removal.
In addition, to assert a claim for tortious interference with contract, Nowak must allege facts showing that the Players Union's conduct was not privileged or justified. The complaint alleges no such facts. Accordingly, not only is Nowak's claim preempted by federal law, but it also fails as a matter of state law.
Nowak's side responded later in November. Here are a few excerpts from its filing, which argues that the case should be kept alive:
… this Court has a greater interest in protecting its citizens from tortuous interference than does the NLRA. Accordingly, dismissal on the grounds of NLRA preemption is not appropriate… The NLRA does not preempt a claim if the conduct if: (1) the relevant allegations are of only "peripheral concern" to the NLRA; or (2) The relevant law touches interests deeply rooted in local feeling and responsibility.
[When I saw that line about "interests deeply rooted in local feeling and responsibility," I couldn't help thinking that there is indeed quite a bit of local feeling in Philadelphia about Nowak, but I'm not so sure that feeling is positive.]
Nowak's side also claimed:
Nowak is not a member of a union… and is not alleging any labor law violation… Nowak was a non-union employee, alleging tortious interference with his contractual relations with an employer.
Then there was this:
Unlike the cases relied upon by the Players Union, Nowak is not asserting a claim centrally related to labor law or that would typically be heard by the NLRB. Nowak's claim is rooted in Pennsylvania tort and contract law, and does not substantially relate to the NLRA or other federal labor law…
[I]t is clear that the Eastern District of Pennsylvania has a greater interest in hearing Nowak's tortious interference claim than does the NLRB. Accordingly, preemption of Nowak's claim against the Players Union is unwarranted.
In the same filing, made a not-too-subtle allusion to the notion that the MLSPU may have made false statements about Nowak's activities:
The Players Union argues that its representations to the League and the Team about Nowak's purportedly inappropriate coaching conduct were "privileged" and protected by federal labor law. See Players Union's Motion, at 11-12. However, an employee or union is not engaging in "privileged" activity if this party makes knowingly false statements or engages in conduct that is otherwise improper.
But oddly, Nowak's filing never specifically stated what the false statements were. This is as close as his side came:
Because the instant matter has not yet reached the discovery phase, the Court must take Nowak's allegations as true. In his Complaint, Nowak has alleged that the Players Union's demands to the League were pretextual and done in bad faith without privilege.
The MLS Players Union offered a final rebuttal to Nowak's case in December, then both sides left the matter in the hands of judge Mary McLaughlin. In that rebuttal, the MLSPU went straight at Nowak's claim about false statements:
Rather than identify any factual allegations in his complaint showing an absence of privilege, Nowak brazenly states in his response that "the Players Union's false and pretextual representations to the League" were not privileged… His complaint, however, contains no such allegation…
Nowak does not - because he cannot - allege that the allegations in the termination letter are false. Rather, he claims they are "pretextual," i.e., not the real reasons for his termination…
[T]he Pennsylvania Supreme Court held that, if a tortious interference claim based on alleged false statements is to survive, "the substance of such statements should be set out in the complaint… Here, the complaint contains no such statements and therefore fails to state a claim even under Nowak's theory.
After the MLSPU's last filing, I ran all this stuff by local labor lawyer and soccer fan Steve Holroyd. Some of you may know him for his contributions to the Philly Soccer Page on the MLS CBA negotiations. Others of you may know him for his work with the American Soccer History Archives, one of the longest-running websites in the American soccer community.
[Back in September, Steve and I had a great time discussing Philadelphia's soccer history when I hosted Soccer Morning on the day of the U.S. Open Cup final.]
Steve was happy to offer some help to this layman in translating Nowak's claims from legalese to Philadelphian.
That was pretty blunt. And as it turned out, Steve was right. On Wednesday, McLaughlin tossed Nowak's case. She did so in no uncertain terms:
The Court grants MLSPU's motion and dismisses the claim asserted against MLSPU because it is preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151, et seq.
What was the reasoning behind the decision? Here are a few citations:
[T]he conduct in this case - MLSPU demanding an investigation over a disputed training exercise and demanding that Nowak be fired as a result of that investigation - involved a core activity with which the NLRA is concerned. Nowak does not dispute that such conduct was undertaken for the purpose of "mutual aid or protection" of MLSPU members. 29 U.S.C. § 157.
The fact that Nowak was not a union member and does not allege a labor law violation does not make MLSPU's conduct of peripheral concern to the NLRA.
Judge McLaughlin also made it clear that Nowak's lawsuit against MLS wouldn't stand either. But in doing so, she made note of an interesting fact: Nowak's side hasn't technically served MLS with that lawsuit as of yet.
The Court also gives notice to the plaintiff of its intention to dismiss the claim against the defendant Major League Soccer, LLC ("MLS"). MLS has not been served in this case.
Fed. R. Civ. P. 4(m) requires a district court, on motion or on its own after notice to the plaintiff, to dismiss an action against a defendant without prejudice if that defendant has not been served within 120 days after the complaint is filed. Rule 4(m) also requires a district court to extend the time for service if the plaintiff shows good cause for the failure to serve.
The plaintiff filed his complaint in this case on June 12, 2014 – over 200 days ago. He has not filed an affidavit of service for MLS, nor has he made any motion requesting the Court's assistance in serving MLS. The plaintiff has not made any showing of good cause for failure to serve MLS. The plaintiff has until February 17, 2015, to show cause as to why the Court should not dismiss the claim against MLS without prejudice.
So that matter is resolved. As Steve noted - and as many other readers concluded in comments to me throughout the case - Nowak's chance of winning was slim at best.
Though Nowak's various legal crusades have driven quite a bit of traffic to this blog, it seems pretty clear that his actions haven't been for the greater good. We'll see if McLaughlin's strong words stop Nowak from doing this stuff again.
By the way, if you're wondering what happened to Nowak's 2012 lawsuit against the Philadelphia Union, my understanding is that it remains in the hands of an arbitrator.
In situtations like these, there's no specific timeline to close out a case, so it's at the arbitrator's discretion as to when he or she takes up the matter. So it could be a while before there's a final decision.
Here are links to my past stories on Nowak's lawsuits:
June 13, 2014: Peter Nowak sues MLS, players' union for causing his firing