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Will the NFLPA’s grievance impact current painkiller litigation against the NFL?

Hall of Famer Richard Dent
May 10, 2017
Sheilla Dingus
@SheillaDingus

Richard Dent is a Hall of Fame defensive end, and MVP of Super Bowl XX, but now his opponent is the league for which he once played – and it may prove to be his fiercest opponent of all.  In May 2014 Dent, along with nine other named plaintiffs filed a lawsuit against the NFL claiming that the league defrauded and concealed information from players about the medications that were administered during their careers; oversaw procurement of and monitored the dispensing of medications for its clubs, and violated duties established by detailed statutory schemes that regulate the distribution and administration of such medications. Plaintiffs premise those claims on their right to have the health care they received to be administered in accordance with the law.

But as Washington Post writer Sally Jenkins inferred in a recent op-ed, the NFL appears to be above the law.

“If it were discovered that Apple or American Airlines or Xerox or any other American business had stashed and handled painkillers illegally so it could dose its employees in massive amounts to keep them on the job, and those employees began sickening in large numbers, there would be major investigations with hell to pay at every level of law enforcement and government. But the NFL gets a free pass because it’s a sport, a pastime, in which we talk about ‘players’ instead of workers with rights, and the league knows how to pacify lawmakers by intoning platitudes about ‘improved health and safety.’”

 

As is often the case in litigation, the NFL once again relied on its collective bargaining agreement with the NFLPA as its strongest defense.  In spite of physical suffering and financial damages asserted by the retired players the league claimed that the matter should be arbitrated in accordance with the CBA and not litigated in the courtroom.  Instead of focusing on the allegations against the NFL the lawsuit turned into an attempt to interpret the CBA.

During District Court proceedings, the NFLPA, which is a non-party to this case, was asked to weigh in to aid in analysis of whether or not these claims could have been grieved under CBA.  The NFLPA responded that, outside the possible exception of retired players covered by the 2011 CBA, they could not.  Most of the plaintiffs in the lawsuit retired before the current CBA took effect and many weren’t covered at all by a CBA during their time in the NFL.  Despite the union’s opinion, however, Judge William Alsup granted the NFL’s motion to dismiss in part on his interpretation of the Labor Management Relations Act which would imply reliance upon the CBA; specifically “the right to medical care established by the CBAs.” Judge Alsup also seemed to give the NFL a pass and a nod with the following statement, “the league has addressed these serious concerns in a serious way.”  The case was appealed to the Ninth Circuit Court of Appeals where oral arguments were heard by a three judge panel on December 15, 2016 and a decision is pending.

The two primary hurdles that this case must overcome in appellate court are (a) Whether or not the case is reliant on the CBA, and (b) Whether the proper defendants have been served. The latter has been addressed in the filing of a separate lawsuit in which the Member Clubs, and not the NFL (as a corporate entity) are defendants.

During the oral arguments in the Dent case, the judges seemed to question the District Court decision and Paul Clement’s arguments in regard to CBA reliance, which I thought might be a positive sign for the Plaintiffs in the case.  I was told by a number of attorneys, however, that I shouldn’t read too much into the judges’ line of questioning because while it may represent their leanings in the case it could just as easily be an example of “playing devil’s advocate,” as often happens in an appellate setting.  Nearly five months have passed since the case was argued in the Ninth Circuit.

On Monday, NFL appellate counsel Paul Clement took (presumably) a final stab at persuading the judges when he sent a letter to the court again arguing that the case should be preempted by the CBA; his evidence – a grievance filed by the NFLPA against the NFL on April 28. The grievance includes allegations that surfaced during discovery in the Evans et al. painkiller lawsuit against the NFL Clubs.  In the grievance, NFLPA General Counsel Tom DePaso cites violations of the 2011 CBA in regard to Article 39 which details players’ rights regarding medical care and Article 2 which states “The parties will use their best efforts to faithfully carry out the terms and conditions of this Agreement.”

On Wednesday Stuart Davidson, one of the attorneys representing plaintiffs in the Dent case addressed the NFL filing in a letter to the Court.  Clement’s letter supposedly purposed to bring new evidence before the Court in accordance with FRAP Rule 28(j) however Davidson states the evidence is not new, and Rule 28 “permits a party to bring new authorities to the attention of the court; it is not designed to bring new evidence through the back door,” citing a Ninth Circuit precedent which included sanctions against counsel who apparently tried to deviate from the rule.

Perhaps more importantly, however he goes on to point out why the NFLPA’s grievance should not be given consideration at all:

But, even if appellee’s submission were proper, the grievance changes nothing. The grievance makes clear that it is only brought on behalf of—and seeks relief for—current players, not NFL retirees. . . This is consistent with two letters filed by the NFLPA with the district court confirming that the NFLPA does not represent retirees, and could not represent retirees in grievances concerning the wrongdoing here. . . (“NFLPA does not believe that the specific claims asserted…were or could have been grievable under any applicable [CBA].”). . . Moreover, even assuming the NFLPA represented retirees, the fact of a grievance does not end the preemption analysis, because . . . appellants allege illegal conduct, which a CBA cannot contract away. . .

 

He concludes the brief letter with, “This letter contains exactly 350 words in compliance with Fed. R. App. P. 28(j).”

After publishing my initial article on the NFLPA grievance, a number of people have asked me how I thought this might impact the current litigation; both the Dent and Evans cases.  Counsel in the cases declined my request for comment, and since I’m not an attorney I can’t state with certainty that the Courts will evaluate the filing in the same way, but I do have a few thoughts on the matter.

First, the Dent case. . .

The NFLPA’s grievance very clearly states that the 2011 CBA was the first which “explicitly required NFL medical professionals to comply with all federal, state and ethical guidelines when conducting their duties to provide medical care to the NFL Players.”  To put this in reverse, would tend to indicate that the point of receiving medical care compliant with federal, state and ethical guidelines (not to mention laws) had not been addressed in prior collective bargaining.  It would seem reasonable to believe that (a) individuals who played prior to implementation of the 2011 CBA would be governed by the CBA in effect at the time of their employment, if in fact there was an active CBA at the time, and (b) violations of criminal law should not be subject to collective bargaining.  There is also case law which has determined that retirees are not members of a collective bargaining agreement, so this might also be a consideration taken by the Court.

Should the appeals panel agree with these arguments, I’d expect that the case would be remanded back to District Court with an order for Judge Alsup to interpret accordingly.  If the Ninth Circuit feels the submission of the NFLPA’s grievance does place jurisdiction of the dispute within the realm of the CBA, then Judge Alsup’s order would likely stand.

Even if the Dent lawsuit is sacked by the NFLPA’s grievance, it should be noted that the named plaintiffs in this case would also be eligible for compensation as punitive class members in the Evans lawsuit should it reach class certification and prevail on the merits or reach settlement.

Impact on the Evans case. . .

Since the NFLPA’s grievance has not been submitted in the Evans proceedings (as of yet) it may have no bearing at all on that case.  Should the grievance be submitted at a future date or be factored into the case in some other way, since the violations stated are derived from deposition testimony and discovery documents which have surfaced in the Evans litigation, I can only see the NFLPA’s concern as bolstering the case.

Unfortunately I don’t see it as a relevant factor either way right now.  RICO claims have been shot down by the Court, as well as conspiracy allegations, which Judge Alsup says he may potentially allow should discovery show reason to believe a conspiracy exists among the franchises as opposed to each Club acting individually.  Currently the Judge Alsup has given the green light to pleading specific allegations against each of the 32 defendants in the lawsuit.  The Third Amended Complaint (or unredacted version of the Second) attempts to do this, but has come under fierce attack by counsel for the Clubs who seek dismissal or summary judgment.  Defendants support this by claiming that Plaintiffs’ counsel has relied on “boilerplate accusations” instead of specific in most instances, and has complained that some of the specifics represent punitive class members rather than named Plaintiffs.

The NFL Club Defendants also seek to kill the case by asserting that most claims fall outside the statue of limitations because of the dates of the injuries or dates that Plaintiffs became aware of their injuries.  Plaintiffs counter that they were not aware of the impact of NFL administered painkillers on their injuries until a later date.  Two recent concussion cases, one in Ohio and another in New York have set the statute of limitations clock at the time the cause of latent injuries was understood and established. It is uncertain how the California court will view this.   The Clubs have also through semantics claimed that the players have not sufficiently tied their injuries to misconduct on the part of the Clubs, i.e. a player states the drugs he was given and health issues he is experiencing but hasn’t sufficiently linked them together.

In essence, the NFL Defendants have managed to whittle away at the claims presented in the complaint to the point where they only acknowledge the assertations of three players as sufficient to continue on the merits.  The Court has not yet ruled on how or if it will proceed, but these issues must be decided before the NFLPA grievance will ever come into play in my opinion.

The grievance itself. . .

Perhaps the most obvious question related to the NFLPA’s grievance is why it was never made public by the players’ union, and only presented to the public eye when it was unexpectedly discovered through my docket search.  As Rick Maese stated in his Washington Post article, “Non-injury grievances are relatively uncommon and not usually publicized,” however one is left to wonder why the Players’ Association would not want as much attention as possible given to such serious violations as to create public pressure for change.

One possibility I’ve considered is that the grievance was designed as a bargaining chip for some concession from the NFL; perhaps a relaxed stance on marijuana use and/or testing as opposed to a true demand for tossing the decades long status quo.  If so, I find it quite troubling that the union would be willing to let this slide – and quietly at that.  When I asked for comment regarding the grievance, the NFLPA declined.  All of the subsequent stories I’ve read on the subject including those from major news outlets in which a request for comment from the NFLPA was cited stated the same.

It seems strange to me that the NFLPA, while unaware of the specific actions stated in the grievance prior to the time they were revealed in the Evans lawsuit, could be oblivious to the culture that spawned these actions.  The NFLPA is after all, composed of players and those charged to represent and protect them.  With recently retired players like Calvin Johnson telling the media that team doctors and trainers are giving out prescription painkillers “like candy,” it’s hard to believe the NFLPA was completely unaware until March of this year.  Perhaps lack of guaranteed contracts and job security has players in a position where they’re afraid to fight back.  Perhaps they’ve taken a lesson from Eugene Monroe’s early departure from the NFL after taking a strong stand for medical marijuana as an alternative to the opioid painkiller approach.  This is merely speculation on my part, but the questions are valid and deserve answers.

As we’ve learned from the league’s handling of concussions, neither the NFL nor its Clubs will admit any kind of wrong doing or liability for the same until they are forced to do so.  For the sake of retirees who are now suffering for what they didn’t know, or current players who will suffer in the future because they feel their only option is to go along with the culture or face unemployment, answers and solutions need to be found.  Here’s hoping the courts and the NFLPA are up to the challenge.