NFL Asks Judge to Reject Revived Painkiller Class Action

The NFL says it reasonably concluded labor contracts between teams and players would adequately protect athletes, but players say actions the NFL did and did not take are the only relevant factors.

(Photo via Pixabay)

SAN FRANCISCO (CN) — A lawyer for the National Football League urged a federal judge Wednesday to reject a twice-revived class action claiming the NFL negligently let teams push painkillers on hurt athletes to get them back on the field, causing permanent injuries.

NFL attorney Daniel Nash of Akin Gump Strauss Hauer Feld said the court must consider the terms of labor contracts between unions and NFL teams that the league believed would adequately protect players from prescription drug misuse.

“Both Ninth Circuit and Supreme Court law is clear that you can’t ask the court to ignore directly relevant collective bargaining agreement provisions,” Nash said during a telephonic hearing Wednesday.

Lead plaintiff Richard Dent, a former Chicago Bear and NFL Hall of Famer, sued the league in May 2014. He claimed the NFL instructed team doctors from at least 1969 to 2012 to dole out unprescribed drugs without warning players of harmful side effects. Dent says he ended his career with an enlarged heart, permanent nerve damage in his foot and an addiction to painkillers.

U.S. District Judge William Alsup dismissed the suit in 2014, finding because the claims were governed by labor contracts between players and 32 individual NFL teams, the case must go to arbitration.

In 2018, a three-judge Ninth Circuit panel overturned the dismissal, finding the NFL’s duty to handle drugs with reasonable care was governed by federal laws, not labor contracts.

A year later, Alsup again dismissed the case, finding the former players lacked adequate support for claims that the NFL played a role in team doctors doling out unprescribed medications to hurt athletes. Last year, the Ninth Circuit partly reversed, finding the league could be held liable under a “voluntary undertaking theory of negligence” under California law.

Applying that theory, the Ninth Circuit in 2018 overturned the dismissal of another lawsuit, Mayall v. USA Water Polo, claiming the governing body for U.S. water polo didn’t do enough to protect young athletes from concussions.

On Wednesday, plaintiffs’ attorney Philip Closius of Silverman Thompson Slutkin White insisted labor contracts are irrelevant to whether the NFL acted reasonably when it took steps to address problems associated with painkillers. The league required teams to report the volume of drugs given to players, funded studies and commissions to prevent the misuse of drugs, performed audits of each team’s practices, required each club to register storage facilities for medications, and forced teams to make players sign waivers before they could receive Toradol, a strong prescription painkiller.

The Ninth Circuit wrote in its August 2020 opinion that “it was within the NFL’s control to promulgate rules or guidelines that could improve safety for players” and that the lawsuit alleges the NFL “already demonstrated its ability to create better policies, regarding Toradol use for example, but has failed to enforce them.”

Despite those findings, Nash argued Wednesday that labor contracts are still relevant to the case because they detail what medical care players are entitled to and how return-to-play decisions must be made.

“We’ve identified numerous collective bargaining agreements going back decades where we did many things,” Nash said. “It’s clearly essential in addressing whether the NFL acted reasonably.”

The NFL cited a 1997 substance abuse prevention policy and program established under a labor contract between players and teams.

“It would be ‘reasonable’ for the NFL to view the specifically bargained-for provisions as sufficient for plaintiffs’ protection,” the league stated in its motion to dismiss.

Closius countered that the drug abuse program was about players taking steroids and other medications on their own. It had “nothing to do” with club doctors doling out medications, he said.

The NFL also argues that under the terms of labor contracts, players could file grievances for issues relating to team doctors distributing painkillers and making return-to-play decisions. In 1995, lead plaintiff Dent filed a grievance claiming he was given painkillers by a club doctor and returned to play without being warned of the harmful side effects.

“There is a [collective bargaining agreement] provision that requires the club doctor to provide written notification to the players of the risks of going back to the field,” Nash said.

The NFL lawyer insisted it was reasonable for the league to assume that requirement would adequately protect players, just as Dent relied on it when he filed his grievance.

“This is about as clear a case of labor preemption that one could imagine,” Nash said. “There are so many provisions that bear directly on their return-to-play theory.”

Closius countered that the 1995 grievance is completely immaterial to negligence claims asserted against the league. The grievance was filed against an NFL team, not the league, he said.

“It’s irrelevant,” Closius said. “It’s against the club. Again we’re conflating the club with the NFL.”

After more than 90 minutes of debate, Alsup took the arguments under submission.

“It’s remotely possible I will want to hear more from you as I dig deeper,” the judge said before concluding the hearing.

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