December 9, 2018
Hall of Famer Richard Dent is back in action! Twenty-one years after his retirement, the Super Bowl XX MVP is scoring points and hoping to make the biggest sack of his career in a revived class action lawsuit against the NFL.
For decades, illegal drug use was the NFL’s dirty little secret. The problem wasn’t players breaking laws, but rather the league itself in pushing players to consume mass quantities of dangerous drugs to keep them playing through serious injuries and earning massive profits for the league.
As explained in the 90-page lawsuit, the NFL implemented a “return to play” business plan from at least the 1960’s through 2014, that prioritized profit over players’ health and safety. The plan, focused on growing media revenues, by implementing longer seasons with more games and less rest, including Thursday night football. Roster sizes were decreased to save on payroll expense, and a philosophy of “whatever it takes” to keep players on the field dominated. The “whatever” was powerful drugs.
Dent, along with eight other retired players first filed their proposed class action complaint in the Northern District of California in May 2014, but in December of that year, Judge William Alsup granted the NFL’s motion to dismiss, based primarily on Labor Management Relations Act (LMRA) preemption. He also wrote in his opinion:
Where health and safety are concerned, the (collective bargaining agreements) have allocated specific responsibilities to the (teams) — but not to the league. By implication, this is tantamount to an agreement that the league has no oversight responsibility on these subjects. It would be reasonable to place all responsibility at the (team) level, for that level is where the play-or-not-play decisions are made, where the medical records are kept, and where players have daily contact with doctors.
Oddly, Alsup, also wrote, “the NFL should at least be given credit, in any negligence equation, for the positive steps it has taken and imposed on the clubs via collective bargaining.” As if any after the lawsuit was filed action will grant these men any relief.
The plaintiffs appealed to the Ninth Circuit where oral arguments were held in December 2016, and a long wait began.
In order to overcome the preemption issue, the Dent attorneys, regrouped, took Alsup’s suggestion as to the responsible party, and filed a “sister” lawsuit in May 2015 placing allegations at the feet of the member clubs of the NFL. The Evans lawsuit advanced further than Dent in substantial discovery, some of which was obtained and reported by Rick Maese of the Washington Post. The files painted an ugly picture, just as both the Dent and Evans plaintiffs had described it; blatant violations of federal and state drug laws by doctors and trainers throughout the NFL. In the end, though, it wasn’t enough. Judge Alsup granted summary judgment in favor of the NFL Clubs in July 2017. In his opinion, Alsup indicated that the players’ only recourse for redress of their injuries was through collectively bargained benefits and workers compensation. This lawsuit has also been appealed to the Ninth Circuit, where oral arguments are scheduled for December 19.
Finally, after almost two years, the Ninth Circuit issued a decision on the Dent case, opining that the case was not preempted by labor law, reversing and remanding the case back to Judge Alsup. On December 5, attorney Bill Sinclair submitted the amended lawsuit, this time with the advantage of discovery obtained in Evans.
In Evans suit, Judge Alsup faulted the plaintiffs for failing to plead with particularity, so the attorneys didn’t leave anything to chance, listing page after page of injuries to the named plaintiffs and the recorded use of powerful drugs along with recollections of specific incidents and further indication that the records only present a fraction of the drugs plaintiffs were administered and expected to take with no warnings as to side effects, drug interactions or potential long-term harm.
Every player documented a long string of injuries for each season of his career. One of those players is Ron Stone. He played in 173 games as an offensive lineman for the Dallas Cowboys from 1993 to 1995; the New York Giants from 1996 to 2001; the San Francisco 49ers from 2002 to 2003, and the Oakland Raiders from 2004 to 2005. He was a three-time Pro Bowl selection; two-time All-Pro selection, and two-time Super Bowl champion. The lawsuit describes some of his injuries and the recorded medications he received.
As stated in the lawsuit, there were so many injuries and so many pills and shots that he can’t recall all of them. Each player named in the complaint shows a similar record.
The lawsuit describes how the culture evolved, “In 1965, the NFL created NFL Films to market video of its games, coaches, and players. NFL Films highlighted the violence of the game and the ‘toughness’ of its players. Dramatic collisions between players were highlighted in slow motion. Players who returned to the game with severe injuries were lauded as courageous heroes.” The media saw the appeal and the collisions became the calling cards, in almost every highlight reel featuring the “super-human warriors.”
The public ate it up and profits soared. But it takes a lot of drugs to create “super-human warriors.”
Aided by discovery obtained in Evans, the lawsuit offers a glimpse into NFL locker rooms and the medications that turned mortals into the super-human warriors the public craved. I tweeted this excerpt.
Some #NFL NSAIDS stats for 2012:
7,442 doses÷53 man roster=140.4 does per man (48.8 doses per man per month)
5,777 doses÷53 man roster=109 (27.25 doses per man per month)
Pittsburgh only ranked 10th in NFL distribution of NSAIDS that season. pic.twitter.com/SOn9MPnx6z
— Sheilla Dingus (@SheillaDingus) December 7, 2018
Details indicate the NFL has been aware of an internal drug problem for years.
Oddly in prior rulings in both the Dent and Evans cases, Judge Alsup didn’t seem alarmed at the alleged illegal behavior. The Ninth Circuit disagreed. It will be interesting to see if Alsup will take a different view now that preemption is off the table. Hopefully he will, since a great deal of alarming information has been confirmed.
In a report published in May 1990, Forest Tennant, the League’s Drug Advisor, who conducted audits of the drug procedures of the various franchises, noted “Some Clubs don’t seem to know which drugs are controlled substances, and some don’t apparently understand the necessity (and law) to keep dispensing logs and an internal audit. A review of Clubs logs and internal audits … reveal excellent tracking by some … and some other Clubs do not have enough documentation to know if controlled substances are accounted for.” He also found that many teams lacked evidence of a current DEA registration for each prescribing physician, and that a “significant number of teams store/stock controlled substances in devices of questionable compliance to governmental regulations.”
In a 1985 audit by his successor, Dr. Lawrence Brown, it was noted that an Eagles doctor was writing prescriptions to the trainer rather than players. At the NFL Physicians Society (NFLPS) meeting in 1998 he reported that at least “5 teams were in noncompliance with controlled substances.” Nothing was noted as to what, if anything, would be done to correct the problem.
Documents such as these should dispel Judge Alsup’s skepticism regarding the NFL’s role in supervising the distribution of medication by teams.
One thing is obvious. The NFL overseers understood the law, and also understood that it was being flaunted at every turn. What’s more difficult to understand is why they turned a blind eye to what they saw, since they had authority to fix it.
The amended complaint is filled with tidbits like this:
Dr. Brown complains that “4 NFL regulated medications (medication that we have to report to the NFL on our reports/medication that is counted during the on-site audit), our numbers do not match our League summary report.”
In Atlanta he found, “the medication dispensation log contains no physician signatures; there is no control from the doctor to know exactly what has been given to players and what type of communication exists between the trainers and the physician; there is no evidence that the doctor actually knows what medication has been given to the players.”
They weren’t even getting the billing right.
This was in 2008. By 2010 the DEA was actively investigating. As documented in the lawsuit, “nothing had changed. The clubs still did not understand – and were in woeful non-compliance with – the law regarding controlled substances, as evidenced by the many, many violations thereof as testified to by Drs. Matava, Rettig, Kuykendall, and Marzo, among others.”
The NFL didn’t even seem terribly concerned that the DEA was poking around, although it did set some of the doctors on edge.
In an email exchange among five team doctors, Dr. Yates wrote, “In order to solve the NFL/DEA Dilemma we all need to work together and ‘get along’. NONE of us are immune from scrutiny, trainers, physicians, advisors (employed or independent) Park Ave management and so on. As I’ve said before: To date, there has not been a constructive solution provided by the home NFL office other that the meet and greet with the DEA and the subsequent legal conference calls. The information to date to the [NFL Physicians] Society is one of ‘Good luck’ and you are on your own to decide how to adhere to ‘the law’!!! We are where we are because of our association with the NFL”
The DEA convened a meeting at the Indianapolis Combine with the doctors at their annual meeting, but it didn’t go well. Here are a few key excerpts from Rick Maese’s Washington Post report:
The NFL doctors grew defensive, then angry, according to participants in the room, as [DEA Official] Rannazzisi lectured them on their duties and responsibilities in the context of the opioid epidemic that was sweeping the country. The doctors felt they were being compared to pill pushers, and the meeting became confrontational.
Groans, catcalls and even some boos filled the hotel ballroom at times.
“And the funny thing was, I was there to help them. I wasn’t looking to take action against anybody,” he said. “I wanted them to understand if they were doing what I think they were doing — if they were just handing out drugs to players — they weren’t doing the players a service as patients.”
At one point, Rannazzisi said, a doctor raised his hand and asked why the president is able to travel with drugs aboard Air Force One. The DEA official explained that Air Force One is a military plane and statutes allow exemptions for military aircraft to move drugs around the country.
“I’m thinking as I’m saying this, ‘This is surreal,’” Rannazzisi recalled. “So he says, ‘The military is exempt? Well, think of our players as warriors every Sunday on the field of battle.’ I was stunned.”
Late in the meeting, Rannazzisi said, a doctor from the Dallas Cowboys complained that federal statutes don’t take into account the challenges posed by professional sports teams that travel out of state for games.
“I told him, ‘The law is the law,’” Rannazzisi said. “He said, ‘Well, my owner knows members of Congress, and he’ll get the law changed.’”
It looks like he succeeded.
Sports Medicine Doctors Get Wider Protection Under New Law https://t.co/QcA3mG0K91
— Sheilla Dingus (@SheillaDingus) October 10, 2018
Regarding other abuses, however, it wasn’t until Mr. Dent’s lawsuit was filed four years after the interactions with the DEA that the NFL instituted rules that addressed the DEA’s concerns. The discovery obtained in Evans confirms that the players allegations are correct, and in view of this, one is left to wonder why the DEA didn’t prosecute. They had the authority to do so. It seems the NFL’s reach is far and wide, and the only thing that truly gets the NFL’s attention is a lawsuit.
Most changes in the NFL seem to be the result of lawsuits, including amendments to the 88 Plan for neurocognitively impaired retirees to close loopholes in which players who’d been unjustly denied benefits obtained them in court. They closed the loopholes to prevent other players from prevailing.
Changes to concussion protocols are a byproduct of the concussion litigation which resulted in an uncapped settlement and an attempt to mitigate future liability. Even within the settlement structure, the NFL’s legal team works overtime to keep claims from being paid, demonstrating the same contempt of doctors, lawyers, and even the court-appointed Special Masters the Cowboys doctor raged toward DEA Agent Rannazzisi.
Since 2014 the NFL has claimed to be compliant with drug laws, and while improvements have been made, there’s still room for doubt as to the degree of compliance. Consider this conversation between Aaron Hernandez and Brandon Spikes, recorded by Suffolk County Massachusetts Jail and reported by Boston Globe.
Spikes told Hernandez that he’d broken some ribs.
“Tell them to get your Toradol shot and the pills. Because you can get a shot, a Toradol shot,” Hernandez said.
Spikes told him, “They don’t give the shot no more, though. They don’t give them out no more. It’s illegal.”
Hernandez told him to go to the coach. “It was illegal last year, the year we played — They made it illegal that year, but Bill still gave the shots.”
Spikes clearly expressed his frustration that drugs weren’t flowing like they did previously, so it appears the lawsuits are having an impact. While they may save current and future players some of the grief players of the past are now experiencing in retirement due to the drug abuses, older players–the players in this lawsuit, aren’t helped by the new get-tough policies.
Richard Dent now suffers from an enlarged heart as a result of the drugs. in 1990 he broke a bone in his foot. The team doctors and trainers told him he had already done all the damage that could be done to the foot, and that while he could have surgery, they could also supply him with painkillers that would allow him to continue playing. He believed they had his best interest at heart and continued to play for eight weeks, the pain masked by repeated injections. He now has permanent nerve damage to his foot. Not only did Dent suffer permanent nerve damage and develop heart problems due to NFL’s failure to regulate drugs, but he left the league addicted to painkillers.
J.D. Hill also left addicted to painkillers which led him to street drugs. He eventually became homeless and found himself in and out of 15 drug treatment facilities over the course of twenty years because of his NFL-sponsored drug addiction. He is now a pastor and substance abuse counsellor. The physical damage remains, however. The Prednisone used to keep him in play weakened his immune system which led to an abscess in his lung, requiring major surgery and the loss of part of the lung. He also suffers from atrial fibrillation, blood clots, and musculoskeletal pain.
Keith Van Horne has suffered two cardiac ablations since retirement and continues to suffer from atrial fibrillation and ventricular contractions. He has also suffered from tachycardia and regularly suffers from musculoskeletal pain.
Jim McMahon discovered for the first time in 2011 or 2012 that he had suffered a broken neck at some point in his career. He believes it happened during a 1993 playoff game when, after a hit, his legs went numb. Rather than being allowed to rest and heal, he was pumped full of drugs and pushed back on the field. No one from the NFL ever told him of this injury. Additionally, he learned only a few years ago that he had broken an ankle while playing; at the time, he was told it was a sprain. He now suffers from extreme pain and has developed kidney problems. Like Dent and Hill, McMahon left the NFL addicted to painkillers.
Roy Green is suffering kidney failure due to the hundreds of NSAIDs that were pumped into him during his career. In November 2012, he had a kidney transplant due to failing kidneys. Since retiring, he has suffered three heart attacks. He also deals with high blood pressure, and like the others, permanent chronic musculoskeletal pain.
Jeremy Newberry began having kidney problems during his career which should have been detected by testing his blood creatinine levels. No one did that and he retired without realizing there was a problem. If not for a night when his blood pressure soared to 250 over 160 causing him to be hospitalized, he probably wouldn’t be alive. That’s how and when his kidney problems were discovered. He is now in Stage 3 renal failure,
In April 2014, Marcellus Wiley, at age 39 and with no history of kidney disease, was hospitalized and diagnosed with partial renal failure. He had lost half of his kidney function.
Ron Stone and Ron Pritchard are probably the most fortunate of the named plaintiffs. While they are is plagued with chronic musculoskeletal pain, no organ damage has been detected.
For decades the NFL has not only ignored and covered up the brain damage which brought thousands of players to court when they or their families realized what happened to them, but they have insidiously pumped players full of potent, dangerous, and addictive drugs without regard for the law or the long-term health of the players. The lawsuit reveals, “In 1994, former Raiders doctor Rob Huizenga noted in his book ‘You’re Okay, It’s Just a Bruise’: A Doctor’s Sideline Secrets About Pro Football’s Most Outrageous Team, that Raiders owner Al Davis routinely pressured players and doctors to do anything to get a player back on the field, regardless of the risks.” NFL doctors and trainers know that, if players are given adequate rest and are not returned to the game, their heads will be on the chopping block along with the players.
It seems Dent and Evans are beginning to change at least part of the drug culture. Hopefully Dent will get the sack he’s looking for and those harmed will finally see compensation. That will be a major game change and probably the only action capable of truly moving the needle.