SAN FRANCISCO (CN) – A lawyer for six former National Football League players had a tough time persuading three Ninth Circuit judges on Wednesday to revive a lawsuit claiming the NFL and its teams illegally dispensed painkillers and pushed athletes to return to the field, bringing their careers to an untimely end.
Lead plaintiff Etopia Evans, widow of the late Minnesota Vikings and Baltimore Ravens player Charles “Chuck” Evans, filed a federal class action against all 32 NFL teams in May 2015.
Chuck Evans died alone in a jail cell in 2008, two days after he was imprisoned for failing to pay child support. His widow says he spent his money on painkillers, which he became addicted to while playing professional football.
The case was transferred from Maryland to Northern California in March 2016, and U.S. District Judge William Alsup scrapped most of the players’ claims in 2017.
On Wednesday, the players’ attorney Phillip Closius argued valiantly before three Ninth Circuit judges that his clients were unaware the teams were responsible for their injuries until 2014, which might allow them to refile their claims in federal court.
Closius said the players trusted their teams and coaches and had no idea that being shot up with drugs and sent back to the field would ultimately do them harm. They also had no clue that the teams were allegedly ordering doctors to illegally medicate players, he said.
“The plaintiffs had no clue that any wrongful conduct was going on. They don’t have constructive notice of the harm,” he said. “They thought it was just perfectly fine. They had no sense that they were being damaged by an illegal distribute of the drugs. They trusted their doctors. They trusted their coaches. They thought this was normal.”
He added that the teams don’t tell their players about side effects or the mixing of various prescription drugs, colloquially referred to as “cocktailing.”
“They’re not telling them the name of the medication half the time,” Closius said. “The injury is not the normal wear-and-tear that occurs in football. The injury is the premature ending of the careers because of the illegal use of medication and the fraudulent cover up of those illegal medications.”
U.S. Circuit Judge Consuelo Callahan asked what occurred in March 2014 to make the players aware of the teams’ actions.
“And March of 2014, coincidentally puts you within the four-year statute of limitations, but you don’t tell us what happened,” Callahan said.
Closius said his clients began to “put the pieces together” when drugging players became a topic of conversation among NFL alumni.
Then came the Dent lawsuit in 2014, which Closius said put “all NFL players on notice.” In that class action, former Chicago Bears player Richard Dent claimed the NFL instructed team doctors from at least 1969 to 2012 to dole out drugs without a prescription and 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.
Alsup dismissed Dent in 2014, finding the claims were governed by labor contracts between players and 32 individual NFL teams and must therefore be resolved through arbitration. The Ninth Circuit reversed Alsup’s dismissal.
Circuit Judge N. Randy Smith battled with Closius over whether the players knew what was happening to them at the time.
“Why weren’t they on constructive notice when, as they allege, they were forced by the doctors or that teams to go back out on the field. Why isn’t that constructive notice?” Smith asked.
“Your honor, these are 20-year-olds,” Closius said.
Smith said: “I know who they are. And we’ve got more than just 20-year-olds in every case. These are not the only 20-year-olds in the world. But we’re interpreting constructive notice. And if you’re suggesting that they knew they were being forced onto the field too early after their injury, I don’t know why they’re not on constructive notice at that point.”
To which Closius replied, “Because they have no sense of the wrong.”
Smith then pressed Closius on another essential element of the players’ claim.
“What do you have in your complaint to show what steps did the plaintiffs take to investigate their injuries?” he asked. “I don’t find anything in your complaint that talks about what did the plaintiffs do to investigate their injury. Frankly I don’t think you have a fraudulent concealment unless there are some allegations about the diligence in the attempt to uncover the scheme.”
Closius said the complaint includes claims the players asked about side effects and the teams lied about them, which did not appear to move Smith.
“So that’s the best you have?” Smith asked.
Smith then questioned the teams’ attorney Gregg Levy on the same issue of diligence. Levy said no player could claim he was unaware of what the teams were doing.
“The events all happened right in front of them,” he said.
Levy also said letting the players amend their lawsuit would be futile since each – except Evans, who died – had filed workers’ compensation claims for the same injuries complained of in their RICO suit.
“So any suggestion that there might be an opportunity to re-plead their claims ought to be rejected,” Levy said.
U.S. Circuit Judge Mary Murguia rounded out the panel, which did not indicate when it would rule.