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December 8, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.


I. Introduction

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.

The Colts move to dismiss the complaint, contending that all of Timothy Sherwin's claims arise out of his player agreement with the team and the collective bargaining agreement between the National Football League Players Association ("NFLPA") and the National Football League Management Council, and must be arbitrated pursuant to the provisions of those agreements. The Colts also maintain that Jannice Sherwin's claims are derivative of her husband's, and that the court should stay litigation of those claims until resolution of Timothy Sherwin's causes of action.

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.

II. Background

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, 49.

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 part:

  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

Both the player contract and the CBA provide for arbitration of disputes arising under the agreements. Paragraph 20 of the player agreement states:

    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

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