NFL Urges Ninth Circuit to Reject Painkillers Appeal

SAN FRANCISCO (CN) – An attorney for the National Football League on Thursday told an appeals court panel that, as a “super employer,” his client is exempt from claims that it illegally pumped players with painkillers.

Without ever defining what it meant to be a “super employer,” NFL attorney Paul Clement made his argument during a hearing before the Ninth Circuit Court of Appeals on the challenged dismissal of a class action alleging the league pushed a decades-long illegal drug scheme to put hurt players back on the field and boost its profits.

Lead plaintiff Richard Dent, a former Chicago Bear and NFL Hall of Famer, sued the league in May 2014, claiming it instructed team doctors from at least 1969 to 2012 to dole out un-prescribed drugs without warning players of harmful side effects.

U.S. District Judge William Alsup dismissed the suit in the Northern District of California two years ago, finding the claims were governed by labor contracts between players and 32 individual NFL teams and must therefore be resolved through arbitration.

During Thursday’s hearing, U.S. Circuit Judge Alex Kozinski questioned why labor contracts would exempt the NFL – but not others – from those claims, especially since the league is not a signatory on six of seven collective bargaining agreements, or CBAs.

The circuit judge posed a hypothetical, asking whether a wife could be sued for instructing a team doctor to poison her husband.

“She decides what she’s going to do is get one of the team doctors and get the team doctors to inject the player with poison,” Kozinski posited. “The player then sues the wife. Is that covered under the collective bargaining agreement?”

Clement replied that while a wife could be held liable for such conduct, the league’s status as a “super employer” exempts it from liability for issues covered under the contracts.

“I don’t see the term ‘super employer’ anywhere in the documents,” Kozisnki said. “It’s just something you mentioned. Is there something in the process or the documents that puts the NFL in some sort of different position than the officious wife?”

Clement argued it’s a completely different situation to sue someone who is “integrally involved” in the collective bargaining process, whether or not that entity has signed the agreement.

“You would be sort of blinking reality to say, ‘Oh, well the league is a complete stranger to the CBA,'” Clement told the panel.

Class counsel Philip Closius argued that because the NFL is accused of committing illegal acts, it cannot hide behind the collective bargaining agreements.

“If the underlying act is illegal, the CBA can’t make it legal,” Closius said.

After the Evans class action was dismissed in 2014, a new class action over painkillers was filed in May last year by lead plaintiff Etopia Evans, widow of the late Charles “Chuck” Evans, who played for the Minnesota Vikings and Baltimore Ravens.

Alsup refused to dismiss that suit this past July, finding it differed from Dent because the plaintiffs sued individual teams rather than the NFL and because the plaintiffs alleged intentional, rather than negligent, conduct.

U.S. Circuit Judge Jay Bybee said Alsup’s ruling in the Evans case left him “really scratching [his] head.”

Bybee said the reliance on claims of intentional conduct to justify denying a motion to dismiss in Evans appears unfounded because the Dent case also alleged intentional fraud claims.

“It makes me wonder whether Judge Alsup didn’t have the courage of his convictions in the Dent case,” Bybee said.

Clement replied that while he disagrees with Alsup’s ruling in Evans, he thinks the district judge saw claims against the NFL as “being even more obviously preempted” because one must look to the labor contracts to determine “the terms that bind those parties together.”

“Any way you look at this, you’re going to come back to a need to interpret the collective bargaining agreement,” Clement told the panel.

Closius got the last word when he urged the panel to reverse Alsup’s dismissal and give players a chance to seek evidence to prove the NFL orchestrated the scheme that led players to suffer with drug addictions and permanent injuries.

“We’re asking simply for discovery,” Closius said. “If you affirm this decision, our case is done. If you reverse Judge Alsup in whole or in part, we only get discovery.”

Closius said the 10 named plaintiffs and 1,300 players who signed up to be part of the putative class “have a right to know who did this to them.”

When U.S. Circuit Judge N. Randy Smith declared prejudice should not be a consideration in the panel’s decision, Closius replied, “Justice should always be a consideration.”

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