SAN FRANCISCO (CN) - The federal judge overseeing a class action that accuses the NFL of providing football players with dangerous painkillers to mask their injuries wants to hear from the NFL players' union before deciding whether to allow the case to go forward.
"The plaintiffs' lawyer is a buttinsky, to borrow an old phrase," U.S. District Judge William Alsup said at a Thursday hearing. "The union is supposed to be looking out for the plaintiffs. The labor union is the one that is supposed to be doing this."
"But that's exactly my point," the former players' attorney Steve Silverman said. "The union doesn't represent the former players."
Lead plaintiff Richard Dent, a former Chicago Bear, accuses the league of treating players' injuries on the field for decades with nonprescription opioids, nonsteroidal anti-inflammatory drugs and local anesthetics, with little regard for the side effects or the players' medical histories.
Among the medications handed out, the players say, were Percodan, Vicodin, Percocet, Prednisone, Toradol, Ambien and Celebrex.
Toradol's complications include renal failure and increased risk of bleeding, but the drug is increasingly used on athletes, according to the lawsuit.
Jeremy Newbery, Roy Green, J.D. Hill, Keith Van Horne, Ron Stone, Ron Pritchard and James McMahon are also named as plaintiffs in the May 2014 complaint.
The NFL claims that it bears no legal responsibility because the collective bargaining agreements that govern the terms and conditions of the players' medical care places the teams' medical staff in charge of players' diagnoses and treatments.
At the Thursday hearing on its motion to dismiss, NFL attorney Dan Nash said the players "are making allegations based on medical care provided while they were covered under the CBAs. These rights don't go away because they retire."
Nash said the league was under no obligation to question the medical opinions of team doctors and trainers.
"They're suggesting we had a duty to second-guess the doctors' expert judgment," Nash said.
But the players argued that not only has their coverage under those agreements expired, the CBAs do not actually cover the issues raised in their class action, such as whether the NFL breached its duty to inform the players about the controlled substances injected into their bodies.
Alsup, who said, "I don't follow fantasy football. I go to a game every ten years," asked Silverman what team Dent played for.
"I think it's the Bears, but I don't really follow football either," Silverman said.
During the hour-long hearing, Silverman argued that the NFL could have foreseen the harm the drugs were causing the players, and that the league knew the players were stuck with needles full of drugs before being sent back to the field.
"So what if they knew? Where does it say the NFL is supposed to swoop down and intervene? I question whether the NFL has a duty to intervene and stop the clubs from mistreating a player," Alsup said.
The case hinges partly upon whether the former players are bound to arbitrate their grievances under the collective bargaining agreements they signed as players.
"I would like to get the views of the union," Alsup said. "If a retiree goes to the union and says, 'I want to grieve the type of injury in the complaint,' would the union be obligated to pursue that grievance? Or is it true that the retiree has no rights to grieve anything? If it were to be grieved, would the CBA cover the types of claims that are being asserted?"
The union has until Nov. 5 to reply with a letter to the court on whether it will answer Alsup's questions.