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Appeals court resurrects ex-players’ painkiller lawsuit against the NFL

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A lawsuit claiming the NFL improperly plied its players for years with harmful painkillers is heading back to federal court. The U.S. Court of Appeals for the Ninth Circuit on Thursday overturned a lower court’s dismissal of the lawsuit filed by a group of former players that includes Richard Dent and Jim McMahon.

The decision revives a proposed class-action lawsuit and an issue the NFL has been defending itself against for more than four years. The NFL had successfully argued in 2014 that the federal labor law and the collective bargaining agreement between NFL team owners and players preempted the players’ claims and provided other avenues for resolution.

A three-judge panel disagreed Thursday, saying “the district court erred in holding that the players’ claims were preempted.”

“The panel rejected the NFL’s argument that the dismissal should be affirmed on the ground that the players failed to exhaust the grievance procedures required by the CBAs,” read the opinion issued Thursday.

The decision means that Dent and his fellow players will have another shot to have their claims heard in court, and the case will move a step closer to discovery. The lawsuit was originally filed in May 2014 and accused the NFL of administering powerful painkillers without proper prescriptions or medical supervision, in dangerous and illegal doses, and with little or no explanation of risks associated with the drugs.

The court’s opinion did not address the merits of the ex-players’ claims, and solely focused on whether the case should be allowed to proceed.

“Perhaps plaintiffs can prove these elements; perhaps not. That must await completion of discovery,” the opinion stated. “We hold only that the plaintiffs’ negligence claim regarding the NFL’s alleged violation of federal and state laws governing controlled substances is not preempted.”

NFL abuse of painkillers and other drugs described in court filings

The case was handled for the league by attorney Paul Clement, who served as U.S. solicitor general under President George W. Bush. “We have strong arguments on the merits of the case, which we have litigated successfully already,” NFL spokesman Brian McCarthy said. “Every claim brought by every plaintiff was dismissed for a variety of reasons and we expect the same outcome.”

Attorneys representing the former players said Thursday’s opinion marked a major victory against a league that fought hard to dismiss the case.

“Our clients view this as a sweeping victory and an amazing win,” said Steven Silverman, the Baltimore-based attorney representing the ex-players. “To overcome the former solicitor general of the United States, backed by two of the biggest firms in the world speaks to the validity of our clients’ claims, and we look forward to moving forward and providing a legal mechanism for much-deserved relief.”

The case is one of two drug-related lawsuits Silverman has brought before the U.S. District Judge William Alsup in the Northern District of California. The judge dismissed the Dent case in December 2014, saying, “the league has addressed these serious concerns in a serious way — by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves.”

The CBA long has served as a legal shield of sorts for the league, as the NFL consistently has argued in court that the agreement calls for other avenues to adjudicate grievances. Attorneys for Dent and his fellow former players argued otherwise before the three-judge panel in December 2016 and waited more than 20 months for Thursday’s ruling.

The case would return to Alsup’s courtroom, unless the NFL chooses to challenge the ruling, either by requesting a re-hearing or appealing to the full Ninth Circuit.

The 30-page opinion, written by U.S. Circuit Judge Richard C. Tallman, noted that the lower court felt the “essence” of the players’ negligence claims related to teams mistreating players and the league’s failure to stop them. “However, as we read the complaint, the plaintiffs are not merely alleging that the NFL failed to prevent medication abuse by the teams,” the opinion read, “but that the NFL itself illegally distributed controlled substances, and therefore its actions directly injured players.”

From the archives: Pain and pain management in NFL spawn a culture of prescription drug use and abuse

In ruling that the ex-players’ claims of negligence should be allowed to proceed, the judges noted that the existence of a CBA does not allow a business to circumvent any local, state or federal laws that might be in place. The panel stated that the league “has a duty” to handle prescription drugs with “reasonable care,” and “if the NFL had any role in distributing prescription drugs, it was required to follow the laws regarding those drugs.”

“Whether the NFL made false assertions, whether the NFL knew or should have known they were false, whether the NFL intended to induce players’ reliance, and whether players justifiably relied on the NFL’s statements to their detriment, are all factual matters that can be resolved without interpreting the CBAs,” the opinion stated.

Silverman had filed a similar lawsuit in federal court in May 2015 related to pain medication in the NFL. That lawsuit named individual teams, not the NFL, as defendants and reached the discovery phase before it was largely dismissed in May 2017 by Alsup. The judge said at the time the ex-players had failed to demonstrate that the drugs they received during their playing careers directly led to the medical problems they experienced later in life.

While the discovery obtained in that second case could help bolster the arguments as the Dent filing resurfaces, Thursday’s opinion also pointed out a potential obstacle the former players could still face in pursuing their claims. The panel said the attorneys “appear to conflate the NFL and the teams,” and “any further proceedings in this case should be limited to claims arising from the conduct of the NFL and NFL personnel — not the conduct of individual teams’ employees.”

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