The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
This action is brought by Timothy Sherwin, formerly a
professional football player for the Indianapolis Colts
("Colts"), and his wife, Jannice Sherwin. Timothy Sherwin alleges
that, while he was under contract to the Colts, he suffered an
injury for which the Colts and their team doctors, defendants K.
Donald Shelbourne and Arthur Rettig, failed to provide adequate
medical care, and that the defendants intentionally withheld
information regarding the true nature of his injury. Timothy
Sherwin asserts various causes of action against the Colts and
defendants Shelbourne and Rettig sounding in breach of contract,
negligence, medical malpractice, fraud, negligent
misrepresentation, and negligent and intentional infliction of
emotional distress.*fn1 Jannice Sherwin asserts a cause of
action for loss of consortium.
Defendants Shelbourne and Rettig move to dismiss the complaint
as to them for lack of personal jurisdiction. The doctors contend
that New York jurisdiction cannot be exercised over them because
they do not have sufficient contacts with the State of New York
and plaintiffs' claims are not related to the minimum contacts
they may have with New York. Oral argument on the motions was
heard on November 6, 1990.
Timothy Sherwin (hereinafter "plaintiff" or "Sherwin"), was
employed by the Colts as a professional football player for the
1988 football season. Prior to the commencement of the football
season, the plaintiff underwent and passed a physical examination
conducted by team physicians. Complaint, ¶¶ 17-18. The plaintiff
alleges that sometime in July 1988, he suffered a neck injury
during a practice session which caused immediate numbness and
tingling in his arms, hands, hips, and lower extremities.
Complaint, ¶¶ 19-20. He reported his injury to the team trainers
and/or physicians, and X-rays were taken. According to the
plaintiff, team representatives and the team physicians refused
to discuss the nature of his injury with him, despite his
requests to obtain his x-ray results. Complaint, ¶¶ 21-23.
Plaintiff continued to participate in practice sessions despite
continued pain in his neck, cervical area and thoracic spine
through late July 1988 and into August 1988. Complaint, ¶ 25.
Plaintiff claims that he continued to practice because he was
informed, by team representatives and/or the team physicians,
"that there was nothing to worry about." Complaint, ¶ 29.
In August 1988, the plaintiff was traded by the Colts to the
New York Giants ("Giants"). Complaint, ¶ 30. During his first
physical contact in a practice session with the Giants, the
plaintiff alleges that he again experienced numbness and tingling
in his extremities. During plaintiff's first regular season
football game with the Giants, he alleges his extremities became
numb, causing him to fall to the ground. Complaint, ¶¶ 33-34.
Plaintiff was then examined by trainers and team physicians for
the Giants, who determined that he was suffering from a severely
herniated disc in his spine which required surgery. The injury
allegedly ended plaintiff's football career. Complaint, ¶¶ 35,
Pursuant to his employment with the Colts, plaintiff entered
into a standard player agreement used for all players, as
required by the collective bargaining agreement between the NFLPA
and the NFL Management Council (the "CBA").
Paragraph 9 of the player agreement provided, in part, that:
[i]f Player is injured in the performance of his
services under this contract and promptly reports
such injury to the Club physician or trainer, then
Player will receive such medical and hospital care
during the term of this contract as the Club
physician may deem necessary, and, in accordance with
Club's practice, will continue to receive his yearly
salary for so long, during the season of injury only
and for no subsequent period, as Player is physically
unable to perform the services required of him by
this contract because of such injury. . . .
With respect to player injuries, the CBA provided, in pertinent
If a Club physician advises a coach or other Club
representative of a player's physical condition which
could adversely affect the player's performance or
health, the physician will also advise the player. .
CBA, Article XXXI, section 1.*fn2
Any dispute between Player and Club involving the
interpretation or application of any provision of
this contract will be submitted to final and binding
arbitration in accordance with the procedure called
for in any collective bargaining agreement in
existence at the time the event giving rise to any
such dispute occurs. If no collective bargaining
agreement is in existence at such time, the dispute
will be submitted within a reasonable time to the
League Commissioner for final and binding arbitration
by him, except as provided otherwise in Paragraph 13
of this contract.
Article VII, section 1 of the CBA provides:
Any dispute (hereinafter referred to as a
"grievance") involving the interpretation or
application of, or compliance with, any provision of
this Agreement, the Standard Player Contract, the NFL
Player Contract, and any provision of the NFL
Constitution and Bylaws, pertaining to terms and
conditions of employment of NFL players will be