NFL Teams Dodge Conspiracy Claims Over Painkillers

SAN FRANCISCO (CN) – A federal judge rejected claims that National Football League teams conspired to push painkillers on hurt athletes to keep them in play, but eight teams must still face claims of fraud and concealment.

Lead plaintiff Etopia Evans, widow of the late Charles “Chuck” Evans, who played for the Minnesota Vikings and Baltimore Ravens, filed a class action against all 32 NFL teams in May 2015.

Evans’ widow and others say NFL teams conspired since at least 1964 to have team doctors and trainers dole out unprescribed pills and injections, sometimes mixing them in “dangerous cocktails,” to get players back on the field without warning them of the long-term side effects.

U.S. District Judge William Alsup refused to dismiss the lawsuit in July 2016, finding the claims were not barred by the statute of limitations because at least some former players’ injuries were “latent and slow in developing.”

But in a Feb. 3 ruling, Alsup dismissed conspiracy claims in Evans’ amended complaint as untimely or unsupported by facts.

To pursue claims under the Racketeering Influenced and Corrupt Organizations Act, Alsup said, the players must identify an enterprise, pattern or activity that caused injury to one’s business or property.

While accepting that players suffered “latent” physical injuries, Alsup found such injuries do not count as harm to one’s business or property, which is necessary to pursue a RICO claim.

The players claimed they suffered shortened NFL careers and dismal economic prospects from having their physical injuries exacerbated by playing while hurt instead of taking time to recover.

But Alsup said the players were aware of those facts when they retired, and no information learned in the past four years — the time limit for filing a RICO claim — gave them new knowledge to support those allegations.

“Plaintiffs’ suggestion that they could not have known the clubs’ alleged conduct shortened their NFL careers and diminished their post-NFL prospects beggars belief,” Alsup wrote in the 20-page ruling. “Besides, if such injuries were not reasonably discoverable when plaintiffs’ NFL careers ended, then there is no reason why they would have become discoverable only in the four years preceding this action.”

Alsup also dismissed state law claims of conspiracy against the NFL teams, finding the players offered no facts to support an alleged “agreement or understanding between the clubs.”

However, he refused to dismiss state law claims of intentional misrepresentation and concealment against eight of the 32 NFL teams.

The players claimed the teams concealed the medical risks, side effects and proper use of drugs doled out to players and falsely represented that they cared about and prioritized players’ health and safety.

The judge found specific stories cited in the amended complaint laid out sufficient facts to advance claims of misrepresentation and concealment against eight of the 32 teams.

In one example, Alsup cited the story of Miami Dolphins player Duriel Harris, who sprained an ankle in a game in 1976 and “limped on to the field for pre-game warmups” the following week.

Two coaches allegedly told Harris, “You need to play.” He received a cortisone injection and played the game, but his ankle later “ballooned up,” preventing him from running or working out for the next six months and eventually causing him to suffer “constant pain” in his joints that continues today, according to the complaint.

Based on such specific examples, Alsup refused to dismiss intentional misrepresentation and concealment claims against the Detroit Lions, Oakland Raiders, Denver Broncos, Green Bay Packers, Seattle Seahawks, Miami Dolphins, San Diego Chargers and Minnesota Vikings.

Alsup dismissed those claims against the other 24 NFL teams with leave to amend.

He denied the players leave to amend their RICO claims, but said if new evidence surfaces that could support such allegations, he would consider letting them amend their complaint.

The former players have until Feb. 22 to file an amended complaint.

Attorneys for the retired players and NFL teams did not return phone calls seeking comment Tuesday.

The class is represented by William Sinclair with Silverman Thompson Slutkin White in Baltimore.

Jack DiCanio with Skadden Arps Slate Meagher & Flom in Palo Alto represents the NFL clubs.

In December, a panel of Ninth Circuit judges heard oral arguments on a still-pending appeal challenging Alsup’s dismissal of a similar lawsuit against the NFL.

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