SAN FRANCISCO (CN) – A Ninth Circuit panel hinted Thursday that a prior ruling holding USA Water Polo liable for failing to protect young athletes from concussions could open the door to reviving a class action over painkillers pushed on hurt football players.
Lead plaintiff Richard Dent, a former Chicago Bear and NFL Hall of Famer, sued the league in May 2014 claiming the NFL directed team doctors from at least 1969 to 2012 to dole out unprescribed drugs without warning players of harmful side effects. Dent said he ended his career with an enlarged heart, permanent nerve damage in his foot and an addiction to painkillers.
Arguing before the panel Thursday, NFL lawyer Pratik Shah of Akin Gump insisted the league cannot be held liable unless it was found to have specifically violated drug laws, an allegation the plaintiffs dropped from their third amended complaint.
“They’ve admitted here that they don’t have any allegation in their complaint that the NFL directly or indirectly violated state and federal drug laws,” Shah told the panel.
Countering that argument, Senior U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, noted that an alternate theory could also open the NFL to liability – a legal duty of care owed to players.
“The case I have in mind is the water polo case,” Bybee said, referring to the Ninth Circuit’s 2018 decision in Mayall v. USA Water Polo, which found the defendant liable for “inaction in the face of substantial evidence of risk.”
Bybee ticked off a list of steps the NFL took to prevent the misuse of prescription drugs, including requiring teams to report the volume of drugs given to players, funding studies and commissions to prevent the misuse of drugs, conducting audits of each team’s practices and requiring each club to make its players sign waivers before they could receive Toradol, a strong prescription painkiller.
“Why could that not be categorized as a voluntary undertaking by the NFL that was inadequate,” Bybee asked.
Shah replied that the players disavowed that theory after U.S. District Judge William Alsup dismissed their first complaint in 2014.
A lawyer representing the players strongly disagreed with that view.
“Once we get to the third amended complaint, it resets everything,” said plaintiffs’ attorney William Sinclair of Silverman Thompson Slutkin & White.
Alsup ruled in 2014 that because the duties owed to players by the NFL and teams were clearly defined in collective bargaining agreements, the players could only resolve their grievances through arbitration.
Seizing on that opinion, Shah told the panel it must look to those agreements to determine if the NFL had any legal obligation pertaining to team doctors doling out painkillers to hurt athletes.
U.S. Circuit Judge Richard Tallman, a Bill Clinton appointee, suggested that a duty of care could have arisen from a different source – when the NFL adopted policies for prescription drugs and started auditing teams to ensure compliance.
“Why isn’t that a jury issue,” Tallman asked. “If the players can prove these policies were window dressing and were paper tigers protecting the players, then why can’t the NFL be held liable under a negligence theory for failing to take adequate steps?”
For the NFL to be held liable under that theory, Shah said the plaintiffs must show the NFL’s allegedly inadequate actions increased the risk of harm to players.
Answering that question is a matter best left to the jury, Bybee suggested.
“If they allege the NFL undertook studies and enacted polices and there’s any chance that increased the risk – perhaps by suggesting cover to the clubs or that there were no problems since the NFL hadn’t hollered about anything – then they may have increased the risk to the players,” Bybee said. “It seems to me that’s better reserved at least for summary judgment or perhaps for a jury.”
The players also claim the NFL had a clear motive for failing to act when audits found NFL teams were not complying with the league’s prescription drug policies. That motive was “to maximize television revenue by putting their injured stars back on the field,” Tallman said, summarizing the players’ allegations.
Shah argued that every action the NFL took was to help ensure compliance with drug laws, and such efforts should not be construed as increasing the risk of harm to players.
U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, noted the NFL also required teams to use independent doctors to dispense drugs for away games. Shah explained that was intended to boost compliance with drug laws after the U.S. Drug Enforcement Administration suggested it was “not a kosher practice” for team doctors to take controlled substances with them to away games.
“The allegations suggest they control simply because the NFL was requiring the players to do something or requiring the teams to do something,” Smith said. “It therefore may have arisen to an independent duty.”
After an hour of debate, the panel took the arguments under submission.
Last year, the Ninth Circuit rejected a separate painkillers class action against 32 individual NFL teams, finding the players failed to file their lawsuit within the four-year statute of limitations.