SAN FRANCISCO (CN) – Portraying the National Football League as an underworld crime boss, a lawyer on Thursday fought to advance a revived class action claiming the NFL pushed painkillers on hurt athletes to get them back on the field regardless of the long-term consequences.
“They don’t convict drug kingpins because they find them selling nickel bags on the Embarcadero,” attorney Phil Closius, representing a proposed class of retired NFL players, argued in court.
Closius, of Silverman Thompson Slutkin White in Baltimore, was responding to U.S. District Judge William Alsup’s demand that he explain how the NFL could be found to have violated drug control laws without evidence that it physically handled or distributed painkillers.
“You have to show that the NFL directly provided medical care and supplied drugs to players,” Alsup said.
Thursday’s hearing was the first time both sides have appeared back in district court since the Ninth Circuit revived the lawsuit this past September.
Lead plaintiff Richard Dent, a former Chicago Bear and NFL Hall of Famer, sued the league in May 2014. He claims 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 because of the league’s conduct.
On Thursday, Alsup and the plaintiffs’ lawyer spent much of the two-hour hearing debating why the Ninth Circuit reversed Alsup’s prior ruling. Alsup suggested the Ninth Circuit overturned his decision because the plaintiffs gave a false impression that drugs were handled or controlled by a security office at the NFL’s New York headquarters.
“I think you’re trying to slide off what you told the Ninth Circuit,” Alsup said. “I want you to explain how the NFL was supplying these drugs from a New York locker.”
The NFL retirees’ third amended complaint states the NFL “exerts control over … the storage and administration of controlled substances and prescription drugs through their agent, the NFL Security Office.”
Closius vehemently disagreed with the judge’s characterization. He said the Ninth Circuit reversed Alsup’s decision because it found claims of negligence did not hinge on the interpretation of collective bargaining agreements as Alsup found in 2014, but rather on whether the league had violated the Controlled Substances Act.
The lawyer insisted the league was involved “in every level” of the distribution, and that the law doesn’t require that a perpetrator personally touch or handle drugs to be in violation.
When asked to identify specific ways in which the NFL controlled the drugs, Closius cited a 1999 document creating guidelines for the league’s “prescription drug program and protocol,” along with other documents created by NFL associates.
“They’re telling them how to distribute it. They’re providing the guidelines,” Closius argued.
“It’s not the same as the NFL itself handling the drugs,” Alsup replied.
Closius then referred Alsup to allegations about a New York Jets team doctor, Elliott Pellman, who allegedly also worked as an NFL employee.
“This is new,” Alsup said. “I did not know you had an NFL person distributing drugs directly to someone.”
But NFL attorney Daniel Nash, of Akin Gump Strauss Hauer in Washington, denied that Pellman worked directly for the NFL. Even if the plaintiffs could show Pellman worked for the league, Nash argued they still failed to allege that the doctor personally handed painkillers to athletes.
Playing devil’s advocate, Alsup grilled the NFL lawyer on how drug laws could be enforced against kingpin-like characters who profit from drugs they never touch that are distributed by underlings.
“Under your argument, the government could never put the kingpin in jail because he never touches the drug,” Alsup said.
In response, Nash insisted that not a single statement appears in the plaintiffs’ third amended complaint alleging that the NFL directed a doctor or club to give out drugs without regard to a player’s health.
“Counsel has still never identified anything that would be remotely considered any basis to say the NFL violated these statutes,” Nash said.
Before ending the hearing, Alsup asked both lawyers to send him a transcript of their arguments before the Ninth Circuit and to highlight any statements they want him to focus on as he considers the NFL’s renewed motion to dismiss the lawsuit.
Last month, the Ninth Circuit affirmed Alsup’s dismissal of a separate class action seeking to hold individual NFL teams liable for pushing painkillers on hurt athletes, finding the players waited too long to file suit.