SAN FRANCISCO (CN) – A federal judge said Thursday he is “inclined” to let a jury decide whether three National Football League teams lied about prioritizing player safety as they pumped hurt athletes with painkillers to get them back on the field.
“Why shouldn’t we let a jury decide this?” U.S. District Judge William Alsup asked at a court hearing on Thursday. “We’d have the players testifying, the doctors testifying, what they were told, and were not told.”
An attorney for three NFL teams urged Alsup to stamp out the last remnants of a class action alleging a conspiracy to push unprescribed pills and injections on hurt athletes without warning them of the long-term effects.
Alsup previously dismissed most claims, including conspiracy claims, against all 32 NFL teams, leaving only claims of intentional misrepresentation against the Green Bay Packers, Denver Broncos and Los Angeles Chargers.
During Thursday’s summary judgment hearing, the teams’ attorney Daniel Nash said the players can’t claim an “intentional injury” exception to laws that require they seek relief only through workers’ compensation.
The players say team doctors knew the drugs being doled out were dangerous, but Nash said there is no evidence that team doctors intended to harm them.
“Why isn’t it enough that the doctors on the football teams, even though they had no malice toward the players, were deemed to intend the natural consequences of too many Toradol shots?” Alsup asked, referring to Toradol painkiller injections.
Nash replied that even if doctors purposely aimed to hurt players, state laws still require employee injuries be covered only by workers’ compensation in California, Colorado and Wisconsin.
“They say quite clearly that even where the doctor intended the injury and knew the result was probable, it is still barred by workers’ compensation exclusivity,” Nash told the judge.
But the players’ attorney, William Sinclair, cited a 1994 ruling by the Supreme Court of California, Fermino v. Fedco Inc., which found claims of false imprisonment against an employer were not barred by exclusivity because they existed outside the scope of the “compensation bargain” between employer and employee.
“Anyone who goes to play in the NFL is going to be hurt,” Sinclair said. “Injuries occur in the NFL. Those injuries are subject 90 percent to workers’ compensation exclusivity, but we’re not focused on those.”
Injuries not covered by workers’ compensation occur after a player is hurt, Sinclair said. This is what happens when a doctor injects an athlete with painkillers, sends him back on the field and never warns him how that will affect him later in life, Sinclair insisted.
Sinclair represents former players Alphonso Carreker and Reggie Walker, who hope to serve as representatives for a class of players who were given painkillers and denied necessary rest and recovery to heal their injuries.
Carreker, who played for the Green Bay Packers and Denver Broncos from 1984 to 1991, had to get heart surgery in 2013 after anti-inflammatory drugs stopped working because he’d built up resistance from taking too many during his career, according to the lawsuit.
After suffering a sprained ankle while playing for the San Diego Chargers (now the Los Angeles Chargers), Walker said he was given Toradol injections by a team doctor before every game for the rest of his career. Now that he’s retired, he says he still feels pain in his ankles.
In May, Alsup ruled that only Carreker and Walker could serve as plaintiffs against the three NFL teams based on conduct that occurred on or after May 21, 2012. The cut-off date was calculated by the three-year statute of limitations under Maryland law, where the class action was first filed.
Lead plaintiff Etopia Evans, widow of the late Minnesota Vikings and Baltimore Ravens player Charles “Chuck” Evans, originally filed the class action. Chuck Evans died alone in a jail cell in 2008 two days after he was imprisoned for failing to pay child support. His widow says he spent his money on painkillers, which he became addicted to while playing professional football.
Alsup said he would take the arguments under advisement.
Last December, an attorney representing players in a similar class action against the NFL asked a Ninth Circuit panel to overturn Alsup’s 2014 dismissal of that case, Dent v. NFL.
In May, the NFL informed the Ninth Circuit that the football players’ union filed a grievance with the league that “largely duplicates” claims alleged in Dent. The NFL says that grievance supports its assertion that claims alleged in Dent are covered under collective bargaining agreements, making them subject to arbitration. The players asked the panel to ignore that evidence because it only concerned current players rather than retirees. The appeal is still pending.
Nash is with Akin Gump Strauss Hauer in Washington, D.C. Sinclair is with Silverman Thompson Slutkin White in Baltimore.