NFL Player’s Suit Over Painkiller ‘Culture’ Revived by Ninth Circuit

(AP Photo/Rey Del Rio)

SAN FRANCISCO (CN) — After six years of litigation and two appeals, the Ninth Circuit on Friday revived a class action claiming the National Football League negligently allowed teams to push painkillers on hurt athletes, causing permanent injuries and drug addictions for players.

“Despite the NFL’s one-step-removed relationship to the players, it was within the NFL’s control to promulgate rules or guidelines that could improve safety for players across the league,” Senior U.S. Circuit Judge Richard Tallman, a Bill Clinton appointee, wrote in a 20-page opinion.

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 lawsuit 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 reversed Alsup’s decision, 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 allegations to support their claim that the NFL played a role in team doctors doling out unprescribed medications to hurt athletes.

On Friday, the Ninth Circuit partly reversed that decision, finding the league could be liable under a “voluntary undertaking theory of negligence” under California law.

The three-judge panel cited the Ninth Circuit’s 2018 decision in Mayall v. USA Water Polo, which found the governing body for water polo in the U.S. could be liable for failing to do more to protect young athletes from concussions.

Tallman and his colleagues found the NFL voluntarily took steps to prevent the misuse of prescription painkillers, but those steps were inadequate. The NFL allegedly created a drug oversight program in 1973. According to the lawsuit, 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.

Despite those actions by the NFL, teams continued to dole out prescription drugs and put hurt players back on the field, exacerbating injuries and increasing each player’s dependence on painkillers, according to the lawsuit.

“The NFL allegedly was aware of this from its audit results but nonetheless turned a blind eye to maximize its revenues,” Tallman wrote.

However, the NFL could still escape liability if the negligence claims are pre-empted by medical care provisions in collective bargaining agreements between players and teams. Because the Ninth Circuit did not have the labor contracts before it on this appeal, it remanded the case to Judge Alsup to determine if the state-law negligence claim is pre-empted by those agreements.

“The district court should examine afresh whether the NFL’s general disclaimer of liability for individual players’ medical treatment is relevant to the sufficiently pled allegations of the organization’s inaction, where audit results demonstrate failure to safely distribute pain killers to keep marquee players in the game and maximize television revenues,” Tallman wrote.

The panel affirmed Alsup’s dismissal of a separate negligence per se claim based on the NFL’s alleged involvement in the handling, distribution and administration of controlled substances. The panel found the players failed to specify what behavior by the league supported that claim.

Senior U.S. Circuit Judges Jay Bybee and N. Randy Smith, both George W. Bush appointees, joined Tallman on the panel.

Plaintiffs’ attorney Steve Silverman, of Silverman Thompson Slutkin White, said his clients are pleased with the Ninth Circuit’s decision.

“Richard Dent and the other plaintiffs have already changed the game for the better by bringing the leagues practices to light with this lawsuit, and collectively are committed to a successful resolution on behalf of themselves and the more than 2,000 former NFL players who have joined this litigation,” Silverman said in an emailed statement.

The NFL’s corporate office and NFL attorney Allen Ruby, of Skadden Arps Slate Meagher & Flom, did not immediately return emails and phone calls requesting comment Friday.

Last year, 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. The appeals court found the players waited too long to file their lawsuit.

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