Ninth Circuit Revives NFL Painkiller Class Action

(AP Photo/Alex Brandon)

SAN FRANCISCO (CN) – The Ninth Circuit on Thursday revived a class action claiming the National Football League pushed painkillers on hurt athletes to get them back on the field, often causing permanent injuries.

A three-judge panel reversed the dismissal of the lawsuit, finding the NFL had a duty to comply with state and federal laws when doling out prescription painkillers.

“If the NFL had any role in distributing prescription drugs, it was required to follow the laws regarding those drugs,” U.S. Circuit Judge Richard Tallman wrote for the panel in a 30-page opinion.

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.

Dent and nine other players seek to represent a class of more than 1,000 retired players.

U.S. District Judge William Alsup dismissed the lawsuit in 2014, finding the claims were governed by labor contracts between players and 32 individual NFL teams and must therefore be resolved through arbitration.

On Thursday, the Ninth Circuit overruled Alsup, finding evaluation of the players’ claims does not require analyzing or even looking at the labor contracts.

“Whether the NFL breached its duty to handle drugs with reasonable care can be determined by comparing the conduct of the NFL to the requirements of the statutes at issue,” Tallman wrote. “There is no need to look to, let alone interpret, the [collective bargaining agreements].

The players’ claims include negligence per se, negligent hiring and retention, negligent misrepresentation, fraudulent concealment, fraud, and loss of consortium.

Tallman and the panel found the labor contracts only mentioned the duty of individual NFL teams to retain certified doctors and trainers and provide medical care to players. The contracts said nothing about the league’s obligations to players, according to the panel.

The panel acknowledged the players’ complaint lacks strong allegations of a relationship between the NFL and team doctors that would make the league liable for the conduct of those doctors. But the judges concluded that does not mean the claims are pre-empted.

“We express no opinion about the ultimate merits of the players’ claims,” Tallman concluded in the opinion.

The panel remanded the case for Alsup to reconsider the claims as not pre-empted by labor contracts.

Circuit Judges Jay Bybee and N. Randy Smith joined Tallman on the panel. Tallman replaced former U.S. Circuit Judge Alex Kozinski on the panel after Kozinski resigned last year amid allegations of sexual harassment.

In July 2017, Alsup dismissed a separate painkiller class action against individual NFL teams. He found retired players can only seek relief through workers’ compensation.

NFL spokeswoman Taylor Rogers and plaintiffs’ class attorney Phillip Closius, of Silverman Thompson Slutkin & White in Baltimore, did not immediately return phone calls seeking comment Thursday morning.

 

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