NFL Painkiller Class Action Moves Closer to Trial

A federal judge refused to dismiss a class action seeking to hold the NFL liable for an alleged decades-long pattern of pushing painkillers on hurt football players.

Lambeau Field in Green Bay, Wis., home of the NFL’s Green Bay Packers. (Courthouse News photo/Kevin Lessmiller)

SAN FRANCISCO (CN) — The National Football League must face claims that it failed to protect players from a decades-long pattern of painkiller misuse that caused some athletes to develop permanent injuries, a federal judge ruled Friday.

U.S. District Judge William Alsup advanced a nearly seven-year-old class action against the league to a further stage of litigation for the first time. The judge had dismissed the lawsuit twice before. Each dismissal was partly reversed by the Ninth Circuit Court of Appeals.

In a 12-page ruling, Alsup acknowledged that some technicalities involving labor contracts could still enable the league to sidestep liability for its allegedly negligent failure to protect athletes from harm, but he nevertheless denied the NFL’s motion to dismiss.

“Rather than a third dismissal and overindulgence in judicial notice, the court believes the record for the court of appeals will be more complete and true to history if we proceed to trial and/or summary judgment,” Alsup wrote in his ruling.

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.

Alsup dismissed the suit in 2014, finding that 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 sufficient 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. The novel legal standard allows a defendant to be held liable for failing to “exercise reasonable care” in a voluntary undertaking, such as efforts to prevent the misuse of prescription drugs.

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.

During a hearing Wednesday, NFL lawyer Daniel Nash argued that the court must consider the terms of labor contracts that the league relied on to protect players from prescription drug misuse.

Philip Closius, an attorney for the plaintiffs, insisted that actions the NFL did and did not take are the only relevant factors. He said the standard is whether the NFL acted reasonably when it took allegedly inadequate steps to address problems 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 “demonstrated its ability to create better policies” but “failed to enforce them.”

In analyzing whether labor contracts preempt negligence claims against the league, Alsup found the issue of when athletes can return to play after an injury is one covered by collective bargaining agreements. However, he observed other issues — such as “harmful and long-term side effects” of doling out too many painkillers — are not explicitly covered by the agreements.

Another legal question is whether plaintiffs must prove the NFL’s actions were carried out negligently to establish liability. For instance, the league conducted audits on each team’s drug use and found multiple violations of drug laws.

Alsup asked if the audits themselves had to be carried out negligently or if the league’s failure to do more after finding problems from those audits is enough to establish liability.

Adopting the latter theory will require analyzing “what the NFL committed to do on that subject (if anything)” in collective bargaining agreements, Alsup wrote.

The court must also determine if any terms of labor contracts require interpretation, the judge added.

These are all questions that can be resolved in a trial or summary judgment motion after all evidence is gathered and present to the court, Alsup concluded.

The judge set an Aug. 20 cut-off for both sides to finish gathering evidence, an Oct. 7 deadline for filing summary judgment motions and a tentative trial date of April 4, 2022.

Attorneys for the NFL and plaintiff class did not immediately return emails requesting comment Friday.

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