                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD DENT; JEREMY NEWBERRY;            No. 19-16017
ROY GREEN; J. D. HILL; KEITH VAN
HORNE; RON STONE; RON                       D.C. No.
PRITCHARD; JAMES MCMAHON;                3:14-cv-02324-
MARCELLUS WILEY, on behalf of                WHA
themselves and all others similarly
situated,
               Plaintiffs-Appellants,      OPINION

                 v.

NATIONAL FOOTBALL LEAGUE, a
New York unincorporated
association,
              Defendant-Appellee.

      Appeal from the United States District Court
        for the Northern District of California
       William Alsup, District Judge, Presiding

         Argued and Submitted March 12, 2020
              San Francisco, California

                  Filed August 7, 2020

     Before: Richard C. Tallman, Jay S. Bybee, and
            N. Randy Smith, Circuit Judges.

               Opinion by Judge Tallman
2             DENT V. NAT’L FOOTBALL LEAGUE

                          SUMMARY *


         California Law / Negligence / Preemption

    The panel affirmed in part and reversed in part the
district court’s dismissal of a third amended complaint
(“TAC”) brought by a putative class of former National
Football League (“NFL”) players, alleging that the NFL
negligently facilitated the hand-out of controlled substances
to dull players’ pain and to return them to the game in order
to maximize profits.

    The panel affirmed the district court’s dismissal of
plaintiffs’ per se theory of negligence. The panel held that
while the district court’s order held plaintiffs to an
unnecessarily high pleading standard, it still correctly
identified the main deficiency in plaintiffs’ pleading: the
dearth of allegations regarding NFL behavior that violated
the duty to comply with federal and state laws outlined in the
TAC. In addition, the panel held that although it was evident
that plaintiffs suffered serious and long-standing injuries,
plaintiffs could not explain exactly what NFL actions were
responsible for them, and therefore it was impossible to
ascertain whether there was proximate causation.

    The panel held that plaintiffs sufficiently alleged a
voluntary undertaking theory of negligence to survive a
motion to dismiss, and the district court erred in concluding
otherwise. Specifically, the panel held that plaintiffs’
allegations supported their theory that the NFL undertook

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
             DENT V. NAT’L FOOTBALL LEAGUE                    3

the duty of overseeing the administration of the distribution
of pain medications to players, and the NFL was aware that
it should be providing protections. The panel also concluded
that there were adequate allegations that the NFL’s
carelessness in allowing drugs to be distributed as they were
increased the risk of harm to plaintiffs.

    Plaintiffs argued that the TAC allegations supported a
negligence claim arising out of the special relationship
between themselves, as players, and the NFL. The panel
rejected the argument because plaintiffs failed to reference a
special relationship in the TAC, and upheld the district
court’s dismissal of this theory.

    Because the district court did not consider whether
plaintiffs’ voluntary undertaking claim was preempted by
§ 301 of the Labor Management Relations Act, the panel
remanded to the district court for consideration in light of the
relevant collective bargaining agreements, and the guidance
in prior appeal outlined in Dent v. Nat’l Football League,
902 F.3d 1109 (9th Cir. 2018).


                         COUNSEL

William N. Sinclair (argued), Phillip J. Closius, Steven D.
Silverman, and Andrew G. Slutkin, Silverman Thompson
Slutkin & White LLC, Baltimore, Maryland, for Plaintiffs-
Appellants.

Pratik A. Shah (argued), Daniel L. Nash, and James E.
Tysse, Akin Gump Strauss Hauer & Feld LLP, Washington,
D.C.; Allen J. Ruby, Jack P. DiCanio, and Patrick Hammon,
Skadden Arps Slate Meagher & Flom LLP, Palo Alto,
California; for Defendant-Appellee.
4            DENT V. NAT’L FOOTBALL LEAGUE

                          OPINION

TALLMAN, Circuit Judge:

    Plaintiffs, nine former National Football League (NFL)
players, represent a putative class of NFL athletes who
played for any NFL-member Club between 1969 and 2014
and allegedly suffered injury from what they claim was a
“return to play” business plan prescribed by the NFL.
According to Plaintiffs’ Third Amended Complaint (TAC),
the NFL negligently facilitated the hand-out of controlled
substances to dull players’ pain and return them to the game
after injury in order to maximize revenues by keeping
marquee players on the field. The NFL allegedly conducted
studies and promulgated rules regarding how Clubs should
handle distribution of the medications at issue, but failed to
ensure compliance with them, with medical ethics, or with
federal laws such as the Controlled Substances Act,
21 U.S.C. § 801 et seq., and the Food, Drug, and Cosmetic
Act, 21 U.S.C. § 301 et seq. We previously determined that
Plaintiffs’ claims, as long as they relate to actions of the NFL
itself, and not the Clubs, were not preempted by § 301 of the
Labor Management Relations Act, 29 U.S.C. § 141. See
Dent v. Nat’l Football League, 902 F.3d 1109 (9th Cir. 2018)
(hereinafter Dent I). On remand from that decision, the
district court remained convinced that Plaintiffs’ allegations
center too heavily on the actions of the Clubs and granted the
NFL’s motion to dismiss for failure to state a claim against
the NFL.

    Plaintiffs now bring another appeal, challenging the
district court’s dismissal of their only remaining claim for
negligence, which they argue they have sufficiently alleged
under three different theories: negligence per se, voluntary
undertaking, and special relationship. Though we agree with
the district court that two of those theories were
            DENT V. NAT’L FOOTBALL LEAGUE                  5

insufficiently pled, we conclude that Plaintiffs’ voluntary
undertaking theory survives dismissal, given sufficient
allegations in the TAC of the NFL’s failure to “use its
authority to provide routine and important safety measures”
regarding distribution of medications and returning athletes
to play after injury. Mayall ex rel. H.C. v. USA Water Polo,
Inc., 909 F.3d 1055, 1067 (9th Cir. 2018). If proven, a
voluntary undertaking theory could establish a duty owed by
the NFL to protect player safety after injury, breach of that
duty by incentivizing premature return to play, and liability
for resulting damages.

                              I

    Plaintiffs initially filed suit against the NFL in May
2014, followed by an amendment a few months later. At that
time, Plaintiffs’ claims included negligence (under a per se
theory), negligent hiring and retention, negligent
misrepresentation, fraud, and fraudulent concealment on
behalf of a class of players who had “received or were
administered” drugs by anyone affiliated with the NFL. See
Dent I, 902 F.3d at 1115. Plaintiffs sought damages,
injunctive and declaratory relief, and medical monitoring.
Id. The NFL filed a motion to dismiss, arguing that
Plaintiffs’ claims were preempted by § 301 of the Labor
Management Relations Act (LMRA), which the district
court granted. Id. at 1115–16.

    On appeal in Dent I, we reversed the district court’s
preemption decision as to all claims, including negligence.
Plaintiffs’ negligence claim was premised on a per se
violation of federal statutes like the Controlled Substances
Act (CSA) and the Food, Drug, and Cosmetic Act (FDCA),
as well as corresponding state laws. Id. at 1117–18. We
determined that, although the CSA and FDCA did not
provide a cause of action, the NFL did have a duty to use
6             DENT V. NAT’L FOOTBALL LEAGUE

“reasonable care in the handling, distribution, and
administration of controlled substances,” which arises from
the “general character of [that] activity” and the “players’
right to receive medical care from the NFL that does not
create an unreasonable risk of harm.” Id. at 1118–19
(alteration in original). The claim was not preempted by
§ 301 of the LMRA because Plaintiffs’ allegations related to
the NFL (not the member Clubs), and the NFL’s duty to
properly handle controlled substances was not defined by the
Collective Bargaining Agreements (CBA) between the
Clubs and players. Id. at 1121. Though some confusion
naturally arose from the fact that the NFL is an
unincorporated association comprised of the Clubs (thirty-
two of them), and there is much overlap in the membership
and governance of those entities by team owners, we
instructed that any further proceedings in the case center on
the actions of “the NFL and NFL personnel” alone. Id.

    Upon remand, Plaintiffs amended their complaint again,
to form the operative version on appeal: what is now the
TAC. 1 The TAC is limited to a single remaining negligence
claim; all other causes of action were voluntarily abandoned.
At its core, the claim centers on the theory that “[t]he NFL
was required to, or voluntarily undertook the duty to, comply
with federal and state laws regulating the manner in which
[pain] Medications were administered and distributed,” and
failed to do so because of its established “business culture in
which everyone’s financial interest depends on supplying

    1
        The TAC apparently incorporates information obtained during
discovery in the Evans v. Arizona Cardinals Football Club, LLC
litigation that another group of NFL players, represented by the same
counsel as Plaintiffs here, brought against the individual Clubs. 231 F.
Supp. 3d 342 (N.D. Cal. 2017) (order granting summary judgment for
Clubs on remaining RICO claim due to statute of limitations bar), aff’d,
761 F. App’x 701 (9th Cir. 2019).
             DENT V. NAT’L FOOTBALL LEAGUE                    7

Medications to keep players in the game.” The medications
at issue include opioids, non-steroidal anti-inflammatories
(such as Toradol), and anesthetics. Passages from the CSA
and FDCA are cited in the TAC to bolster Plaintiffs’
negligence per se theory, and documents uncovered during
the parallel Evans litigation against the Clubs are quoted to
develop Plaintiffs’ narrative alleging the NFL’s involvement
in the putative drug-distribution scheme. One such
document states that “reputational and financial interests . . .
and the nature of the sport combine to make opioid and other
pain medication usage much more prevalent in the NFL than
in virtually any other industry, population or endeavor,”
which “means that there is shared responsibility and joint
culpability for the problem.”

    What is most striking about the TAC, the simplicity of
Plaintiffs’ single legal claim notwithstanding, is the
painstaking recitation of injuries sustained by Plaintiffs and
the medications they recall receiving during their tenure with
the NFL. For example, Plaintiff Jim McMahon, a player for
six different NFL Club teams during his career, sustained
shoulder injuries (among many others) that included
dislocation, rotator cuff tears, tendonitis, bone spurs,
osteoarthritis, and supraspinatus tears, and he recalls
receiving “hundreds, if not thousands, of injections . . . and
pills,” such as Percocet, Novocain, amphetamines, sleeping
pills, muscle relaxers, and Toradol. An NFL-created
document obtained by Plaintiffs purportedly notes that “the
number of prescription medication pills provided to a player
on a single occasion, [varies] from as few as one to as many
as 40 pills at one time.” The named Plaintiffs’ wide-ranging
internal organ and musculoskeletal injuries, and substances
distributed to manage those injuries (if true), are shocking,
even to a reader familiar with the physically demanding
8            DENT V. NAT’L FOOTBALL LEAGUE

nature of professional football and the resulting injuries from
playing the game.

    The NFL filed a motion to dismiss the TAC under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim, which the district court granted in April 2019. The
court’s order reasoned that the TAC did not plausibly allege
negligence under a per se theory because it did not provide
evidence of “direct involvement in the handling,
distribution, and administration” of controlled substances by
“the NFL itself.” The order went on to swiftly dismiss
Plaintiffs’ other theories, and thus their negligence claim
altogether. Plaintiffs timely appealed.

    We have jurisdiction under 28 U.S.C. § 1291 and review
the district court’s Rule 12(b)(6) dismissal de novo. See
Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir.
2012) (en banc).

                                II

    In reviewing a complaint at the motion to dismiss stage,
we “must accept all material allegations in the complaint as
true, and construe them in the light most favorable to the
non-moving party.” Chubb Custom Ins. Co. v. Space
Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter . . . to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted). We
note that “[t]he plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Dismissal is only proper where the allegations in the
               DENT V. NAT’L FOOTBALL LEAGUE                            9

complaint do not factually support a cognizable legal theory.
See Chubb Custom, 710 F.3d at 956.

    Plaintiffs present three possible theories under which
their action might proceed; we address each in turn.

                                   A

    Plaintiffs argue that, contrary to the district court’s
determination, they have sufficiently pled a negligence claim
under a per se theory. Plaintiffs must allege facts to support
the four elements of negligence: duty, breach, causation, and
damages. Mayall, 909 F.3d at 1060 (citing Beacon
Residential Cmty. Ass’n v. Skidmore, Owings & Merrill LLP,
327 P.3d 850, 853 (Cal. 2014)). 2 “[T]he doctrine of
negligence per se is not a separate cause of action, but creates
an evidentiary presumption that affects the standard of care
in a cause of action for negligence.” Johnson v. Honeywell
Int’l Inc., 101 Cal. Rptr. 3d 726, 731 (Cal. Ct. App. 2009)
(alteration in original, citation omitted). Thus, in addition to
pleading facts sufficient to support the elements of
negligence, a complaint need only support Plaintiffs’ theory
of the case and may refer to a statute in doing so. See Jones
v. Awad, 252 Cal. Rptr. 3d 596, 605 (Cal. Ct. App. 2019)
(“[T]he doctrine of negligence per se is within the scope of
pleadings that allege general negligence, as proof of a breach
of duty is not limited to common law standards of care.”);
Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 244 (Cal.
Ct. App. 2006) (negligence per se “operates to establish a
presumption of negligence for which the statute serves the
    2
      Although Plaintiffs seek to represent a nationwide class, we will
follow in the footsteps of the district court and our previous opinion and
analyze Plaintiffs’ negligence claim under California common law—a
convenience the parties also adopted in their briefing. See Dent I,
902 F.3d at 1117 n.4.
10           DENT V. NAT’L FOOTBALL LEAGUE

subsidiary function of providing evidence of an element of a
preexisting common law cause of action”).

    Plaintiffs’ primary argument for reversal of the district
court’s dismissal of this theory of their claim is that the
district court misconstrued both the thrust of their allegations
and the NFL’s duty, as identified in Dent I. We agree in
some respects, but ultimately conclude that there was no
error in the district court’s negligence per se dismissal
because the court correctly identified deficiencies in
Plaintiffs’ breach allegations.

    In Dent I we determined that, while “no statute explicitly
establishes [] a duty” to “exercise reasonable care in the
distribution of medications,” such a duty arises from “the
general character of [that] activity.” 902 F.3d at 1119
(second alteration in original). And, “to the extent the NFL
is involved in the distribution of controlled substances,” it
has such a duty toward Plaintiffs. Id. The district court’s
characterization of that holding missed the mark somewhat,
requiring that Plaintiffs allege the “NFL’s direct
involvement in the handling, distribution, and administration
of [] controlled substances,” consistent with the fairly
clinical definitions of those terms in the CSA and FDCA.
But Plaintiffs are correct that Dent I did not adopt such a
rigid construction, and in fact referred to allegations that the
NFL may have “directly and indirectly supplied players”
with drugs or “coordinat[ed] the illegal distribution of
painkillers and anti-inflammatories,” in defining the duty.
Id. at 1115, 1118 (emphasis added, alteration in original).

   Examining the TAC with that clarification in mind, it
does appear that Plaintiffs facially allege a duty somewhat
similar to that identified in Dent I. The TAC states: “The
NFL was required to . . . comply with federal and state laws
regulating the manner in which [the defined] Medications
             DENT V. NAT’L FOOTBALL LEAGUE                  11

were administered and distributed. It failed to do so . . . and
that failure directly and proximately caused the injuries for
which Plaintiffs seek damages.” Plaintiffs point to specific
provisions of the federal drug statutes that they claim the
NFL violated through the actions of “NFL doctors and
trainers.” For example, the TAC cites to CSA provisions
that make it “unlawful for any person to knowingly or
intentionally ‘. . . distribute, or dispense, a controlled
substance[]’ in violation of the CSA,” 21 U.S.C. § 841(a)(1),
and extend liability to “[a]ny person who attempts or
conspires to commit,” such an offense, id. § 846.

    But what the TAC fails to do is marshal facts that tether
the alleged statutory violations to any concrete actions of the
NFL (i.e., allege breach). This shortcoming became clear at
oral argument when Plaintiffs’ counsel acknowledged that
the phrase “NFL doctors and trainers,” as used in the TAC,
does not actually refer to any employees of the NFL itself.
Despite the TAC’s separate references to “Club doctors and
trainers,” Plaintiffs’ counsel conceded that the “NFL” and
“Club” doctors and trainers are one and the same, and are in
fact the hired hands of the Clubs. While the district court’s
order held Plaintiffs to an unnecessarily high pleading
standard, it still correctly identified the main deficiency in
Plaintiffs’ pleading: the dearth of allegations regarding NFL
behavior that violates the duty to “comply with federal and
state laws” outlined in the TAC. Even allowing for claims
of “indirect” supply or “coordinat[ion of] the illegal
distribution” of substances, as discussed in Dent I, 902 F.3d
at 1115, 1118, we cannot say that Plaintiffs’ allegations of
breach sufficiently connect back to the NFL. By Plaintiffs’
own admission, the Club doctors and trainers appear to be
the only relevant actors purportedly in violation of statutory
requirements.
12             DENT V. NAT’L FOOTBALL LEAGUE

    And although it is evident that Plaintiffs suffered myriad
serious and long-lasting injuries, because they cannot tell us
exactly what NFL actions are responsible for them, it is
impossible to ascertain whether there is proximate causation.
See Ileto v. Glock Inc., 349 F.3d 1191, 1206 (9th Cir. 2003)
(liability attaches to “foreseeable consequences that the
defendant’s negligence was a substantial factor in
producing” (quoting Mendoza v. City of Los Angeles, 78 Cal.
Rptr. 2d 525, 530 (Cal. Ct. App. 1998))). The absence of
facts in the TAC pertaining to the NFL’s alleged breach and
causation of damages dooms any possible recovery under
this theory. We affirm the district court’s dismissal of
Plaintiffs’ per se theory of negligence.

                                    B

    Plaintiffs offer voluntary undertaking as an alternative
theory for the NFL’s negligence liability. 3 In California, a
voluntary undertaking negligence claim may be sufficiently
pled by showing, inter alia, that:

         (1) an actor undertook to render services to
         another; (2) . . . of a kind the actor should
         have recognized as necessary for the
         protection of [the plaintiff]; (3) the actor
         failed to exercise reasonable care in the
         performance of the undertaking; (4) the
         failure . . . resulted in physical harm to the

     3
       The NFL argues that Plaintiffs are judicially estopped from
asserting a voluntary undertaking theory because it was not raised at the
time of Dent I. We disagree. Plaintiffs’ decision to pursue a voluntary
undertaking theory in the face of an earlier assertion that their negligence
per se argument was the “primary duty at issue,” does not rise to the level
of a “clearly inconsistent” position. New Hampshire v. Maine, 532 U.S.
742, 750 (2001).
             DENT V. NAT’L FOOTBALL LEAGUE                   13

       [plaintiff]; and (5) (a) the actor’s carelessness
       increased the risk of such harm . . . .

Mayall, 909 F.3d at 1066 (citing Artiglio v. Corning Inc.,
957 P.2d 1313, 1318 (Cal. 1998)). Plaintiffs liken this case
to Mayall, in which we concluded that a negligence claim
based on voluntary undertaking should survive 12(b)(6)
dismissal where a putative class of youth water polo players
alleged that, “by failing to establish a concussion-
management and return-to-play protocol for its youth water
polo league, USA Water Polo failed to exercise reasonable
care in the performance of its undertaking—ensuring a
healthy and safe environment for its players.” Id. at 1067.
The Mayall plaintiffs asserted that USA Water Polo
“regulate[d] every aspect of water polo, including the
enactment of rules regarding player safety and health,” and
USA Water Polo’s own bylaws “require[d] it to ensure
proper safety precautions have been taken to protect the
personal welfare of the athletes” at its events. Id. Although
the team coaches and trainers were ultimately responsible for
the decision to put a player back in the game after that player
suffered a potential concussion, USA Water Polo itself could
still be liable for failing to promote regulations that may have
avoided return-to-play injuries. Id. at 1067–68.

    Similarly, the TAC alleges that the NFL “voluntarily
undertook a duty” to “ensure the proper recordkeeping,
administration and distribution of Medications,” but
ultimately failed to protect players due to its “business
culture in which everyone’s financial interest depends on
supplying Medications to keep players in the game.”
Plaintiffs support this statement with factual allegations that
the NFL created a drug oversight program in 1973, which
“required teams and their doctors to report to the NFL
regarding the administration of Medications.” Beginning in
14           DENT V. NAT’L FOOTBALL LEAGUE

at least the early 1990s, the NFL allegedly “began auditing
clubs’ compliance with [federal drug] laws,” such as “the
types of drugs being administered, the amounts in which
they were administered,” and related information. Plaintiffs
also claim that the NFL has “mandated procedures to control
the drug distribution system,” including the registration of
the Clubs’ facilities as storage facilities for controlled
substances, the use of tracking software by SportPharm, and
periodic drug-use audits by the NFL Security Office. NFL
Club trainers and doctors are supposedly “mandated by the
NFL to meet on a yearly basis” with NFL officials, and
doctors provide “reports directly to the League about the
Medications.” The NFL also purportedly funded studies on
Toradol use, which resulted in Toradol guidelines that were
not followed.

     Furthermore, Plaintiffs claim that the NFL is aware of
improper handling of pain medications and that its “standard
of treatment for professional athletes [is] ‘outside the lines.’”
A document written by a non-Club doctor, which was
apparently commissioned by the NFL, bluntly states that
both “appropriate (properly prescribed and monitored) and
inappropriate opioid and non-opioid pain medication use”
are “much more prevalent in the NFL than in virtually any
other industry, population or endeavor,” which “means that
there is a shared responsibility and joint culpability for the
problem.” And the NFL was alerted, via the same report,
that players “who would otherwise not play or play at the
same level of competitiveness may be induced by a pain
medication and their personal financial/reputational
incentives to play under conditions that could exacerbate
their injuries and hinder their recovery,” and “will be at
longer-term risk for developing abuse or addiction.”
               DENT V. NAT’L FOOTBALL LEAGUE                          15

    The NFL has promulgated rules such as the “NFL
Prescription Drug Program and Protocol,” with the purpose
(as that document allegedly states) of “provid[ing]
guidelines for the utilization of all prescription drugs
provided to players and team personnel by physicians and
other healthcare providers and associated the [sic] NFL
clubs” and “to ensure [] appropriate handling (purchase,
distribution, dispensing, administration and recordkeeping)”
in compliance with “regulations of the Federal Drug
Enforcement Administration (DEA) as they apply to
controlled substances.”      And yet, “when the DEA
investigated the clubs [in 2010], nothing had changed. The
clubs still did not understand—and were in woeful non-
compliance with—the law regarding controlled substances,
as evidenced by the many, many violations thereof.” Players
continued to face the heightened risks associated with
playing through their injuries while receiving improperly
handled and administered medications, and the NFL
allegedly was aware of this from its audit results but
nonetheless turned a blind eye to maximize its revenues.

    We agree with Plaintiffs that their allegations read much
like those in Mayall. 4 We, and other courts, have previously
noted that the NFL “promotes, organizes, and regulates
professional football in the United States,” just as USA
Water Polo regulates its sport. Dent I, 902 F.3d at 1114
(quoting Williams v. Nat’l Football League, 582 F.3d 863,
868 (8th Cir. 2009)). Building on this baseline, the TAC

    4
       We reject the NFL’s attempt to distinguish Mayall on the basis that
it involved youth (rather than adult) athletes. Nothing in Mayall suggests
that the logic or holding of the case should be cabined that way. The
focus is instead on the harm that results from prematurely returning
athletes to play after they have already suffered an injury. Mayall,
909 F.3d at 1067.
16          DENT V. NAT’L FOOTBALL LEAGUE

paints a picture of the NFL’s “mandated” and “required”
audits, oversight, and procedures regarding drug distribution
across member Clubs, as well as the NFL’s failure to enforce
rules that it knows are necessary to avoid further injury to
players. These allegations support Plaintiffs’ theory that the
NFL undertook “the duty of overseeing [the] administration”
of the distribution of pain medications to players and is
aware that it should be providing protections.

    The NFL argues that no court “has ever held that a
professional sports league owed such a duty to intervene and
stop mistreatment by the league’s independent clubs” and
there is “no reason to break new ground here.” But the NFL
misconstrues the alleged duty as one to “intervene” in the
Clubs’ drug management, rather than for the NFL to
properly exercise a voluntarily undertaken duty to create and
then enforce league-wide rules regarding player safety and
drug distribution. “Although defendants generally have no
legal duty to eliminate (or protect a plaintiff against) risks
inherent in the sport itself, it is well established that
defendants generally do have a duty to use due care not to
increase the risks to a participant over and above those
inherent in the sport.” Mayall, 909 F.3d at 1061 (quoting
Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992)). See also
Wattenbarger v. Cincinnati Reds, Inc., 33 Cal. Rptr. 2d 732,
738 (Cal. Ct. App. 1994) (duty of care exists to protect
baseball tryout participants from aggravating sustained
injuries, in part because it is “not at all unforeseeable a
participant will attempt to push his body beyond its
capabilities” to obtain a position on a “professional sports
team”). We believe Plaintiffs’ allegations are sufficient to
raise a claim that the NFL undertook such a duty here.

    And the breach alleged by Plaintiffs—physical harm that
resulted from their premature return to play after suffering
             DENT V. NAT’L FOOTBALL LEAGUE                    17

otherwise debilitating injuries masked by over-prescription
of pain-relieving medications—resembles the alleged failure
on the part of USA Water Polo to “use its authority to
provide routine and important safety measures” regarding
return-to-play methods after an injury has been sustained.
Mayall, 909 F.3d at 1067. See also Wattenbarger, 33 Cal.
Rptr. 2d at 738 (returning an athlete to play after he has
suffered an injury is clearly a bad idea and it “requires no
depth of analysis” to reach that conclusion in the context of
a voluntary undertaking claim against a professional sports
team). Despite the NFL’s one-step-removed relationship to
the players, it was within the NFL’s control to promulgate
rules or guidelines that could improve safety for players
across the league. See Mayall, 909 F.3d at 1068 (potential
liability for USA Water Polo as the “rule-making
authority”); Ileto, 349 F.3d at 1207 (holding gun
manufacturers liable because they were “in the best position
to protect against the risk of harm” caused by the purchase
of illegal guns from all of the different sellers to whom they
distributed). The TAC even alleges that the NFL has already
demonstrated its ability to create better policies, regarding
Toradol use for example, but has failed to enforce them.

    Only one aspect of the voluntary undertaking test
remains: whether the TAC includes allegations that “the
actor’s carelessness increased the risk of [physical] harm” to
Plaintiffs. Mayall, 909 F.3d at 1066 (presenting increased
risk as one of three options sufficient to satisfy element five).
In the TAC, each player recounts the drugs he recalls being
given during his NFL career and the injuries he suffered on
the field that were allegedly “caused, aggravated, extended,
worsened, prolonged, exacerbated, intensified, perpetuated,
protracted, or made permanent by the wrongful
administration of Medications to him.” Plaintiffs state that
some “doctors they saw after their careers concluded . . . that
18           DENT V. NAT’L FOOTBALL LEAGUE

some of their ailments might be the result of the amount of
Medications they took during their NFL careers.”
Additionally, we have already previewed Plaintiffs’
contention that the NFL received a medical report stating
that the organization’s policies regarding drug distribution
create “short and long term risks of pain medication use and
abuse.” We conclude that these are adequate allegations that
the NFL’s carelessness in allowing drugs to be distributed as
they were increased the risk of harm to Plaintiffs. See id.
at 1067 (USA Water Polo “increased the risk of secondary
concussions to players who improperly returned to play”).
All elements of the voluntary undertaking theory of
negligence have been properly pled.

    Plaintiffs sufficiently allege a voluntary undertaking
theory of negligence to survive a motion to dismiss, and the
district court erred in its conclusion to the contrary.

                              C

    As to their final theory of negligence, Plaintiffs argue
that the TAC allegations support a claim arising out of the
special relationship between themselves, as players, and the
NFL. Under California law, “a duty to warn or protect may
be found if the defendant has a special relationship with the
potential victim that gives the victim a right to expect
protection.” Regents of Univ. of Cal. v. Superior Court,
413 P.3d 656, 664 (Cal. 2018). Special relationships are
characterized by “an aspect of dependency” of a “limited
community” of plaintiffs upon a defendant who often
benefits from that relationship. Id. at 664–65.

    As the district court pointed out, Plaintiffs failed to
reference a “special relationship” even once in the TAC, and
they likewise did not allude to any particular vulnerability or
             DENT V. NAT’L FOOTBALL LEAGUE                  19

dependency of their community. We therefore reject
Plaintiffs’ special relationship argument.

                              III

    Though we conclude that Plaintiffs have properly pled a
theory of negligence, we recognize that the issue of § 301
preemption under the LMRA lurks in the background. As
discussed at length in Dent I, the LMRA bars state-law
claims “founded directly on rights created by [CBAs], and
also claims substantially dependent on analysis of a [CBA].”
902 F.3d at 1116 (internal quotation marks omitted) (quoting
Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987)).
Therefore, Plaintiffs cannot proceed with their voluntary
undertaking negligence claim if it “exists solely as a result
of the CBA” or requires interpretation of the agreement.
Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.
2007). Crucially, the “nature of the plaintiff[s’] claim”
governs the § 301 preemption analysis, Cramer v. Consol.
Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001), and
Plaintiffs did not expressly plead a voluntary undertaking
theory of negligence in the version of the complaint that we
examined in Dent I.

    The district court did not consider whether Plaintiffs’
voluntary undertaking claim is preempted. While we have
discretion to consider preemption as a question of law on
appeal, we recognize that we cannot make a preemption
determination with regard to the Plaintiffs’ voluntary
undertaking claim because we do not have all potentially
relevant CBAs before us in this latest appeal. See Davis v.
Elec. Arts Inc., 775 F.3d 1172, 1180 (9th Cir. 2015). We
therefore remand to the district court for consideration of the
preemption question as to this claim in light of the relevant
CBAs and our guidance in Dent I. We said there that “[t]he
negligence analysis is not an equation, whereby one careless
20           DENT V. NAT’L FOOTBALL LEAGUE

act can be canceled out by a careful act in a related arena—
especially when the careful act is to be performed by a
different party.” Dent I, 902 F.3d at 1121. The district court
should examine afresh whether the NFL’s general disclaimer
of liability for individual players’ medical treatment is
relevant to the sufficiently pled allegations of the
organization’s inaction, where audit results demonstrate
failure to safely distribute pain killers to keep marquee
players in the game and maximize television revenues.

                              ***

    We affirm the district court’s determination rejecting
Plaintiffs’ negligence per se and special relationship
theories; both were improperly pled and rightfully dismissed
for failure to state a claim. We nonetheless reverse the
district court’s dismissal of Plaintiffs’ voluntary undertaking
theory of negligence because the TAC “contain[s] sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citation omitted). We remand for the
district court to determine whether the claim is preempted by
the LMRA.

     Each party shall bear its own costs.

  AFFIRMED in part; REVERSED in part and
REMANDED.
