May 9, 2017
In an unusual legal twist, NFL Counsel Paul Clement filed a letter with the Ninth Circuit Court of Appeals on Monday citing a grievance against the NFL and its Clubs by the NFLPA. The grievance claims violations of the CBA in regard to the mishandling of prescription drugs as alleged in the Evans, et al. lawsuit against the NFL Clubs., but ironically the letter and attached grievance serves as a defense in another painkiller lawsuit – Dent vs. NFL. The grievance was apparently made public by the NFL in order to kill the Dent lawsuit which the NFL argues is preempted by the CBA. I wrote about the similar allegations but varied arguments in “A Tale of Two Lawsuits,” which provides further background in both cases.
The NFLPA grievance was filed on April 28 and asserts violations of CBA Article 39 and Article 2 involving non-compliance with federal law and ethical guidelines regarding prescription notice of informed consent, and administration of federally scheduled drugs and painkillers to NFL players. The grievance is filed against both the NFL and all 32 member clubs.
On March 9, Rick Maese broke a story on the Washington Post in which he had, through a technical error in the filing, obtained sealed court documents including NFL team doctors’ depositions in which the physicians admitted to violations of federal drug laws. The day after the story broke, the court made an unredacted version of the complaint available to the public and the NFLPA issued the following statement:
The NFLPA is alarmed by the revelations in the lawsuit filed by former NFL players on the abuse of prescription drugs,” the players’ union said in a statement Friday. “While we are not a party to the case, the reporting by The Washington Post and Deadspin are cause for our continued concern and vigilance for holding the league accountable to its obligations. We will monitor this case closely and take all steps necessary to ensure the health and safety of our players.
The Union apparently followed up on this with letters to the NFL dated April 5 and April 11, requesting a response by April 19, but claim to have received no “information or substantive response” in reply. In the grievance letter the NFLPA states that “in 2011, for the first time, the CBA 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.” The NFLPA further indicates:
[T]hat the NFL and Clubs have violated their respective legal duties concerning the health and safety of NFL players. Indeed, the content of the Complaint raises serious issues about whether the NFL knew about potential and on-going criminal violations regarding prescription drugs, as well as troubling questions about the legality and medical ethics of the dispensing of painkillers by NFL medical personnel to players. The NFL’s failure to respond to the NFLPA’s concerns and specific requests for information . . . regarding these vital matters does not enable the NFLPA to conclude that the NFL and the Clubs have met their CBA and other legal obligations. With respect to the NFL, this includes making best efforts to ensure compliance by Clubs and their medical personnel with federal, state, local laws and ethical/professional standards.
The union asserts violations of the CBA based on Article 39 which deals with players’ rights to medical care and treatment.
The NFLPA’s cites extensive changes to the 2011 CBA including:
• For the first time, explicit acknowledgment that “each Club physician’s primary duty in providing player medical care shall be not to the Club but instead to the player-patient;”
• For the first time, the requirement that “all Club physicians and medical personnel shall comply with all federal, state, and local requirements, including all ethical rules and standards established by any applicable government and/or other authority that regulates or governs the medical profession in the Club’s city;”
• For the first time, the requirement that “the NFLPA Medical Director shall be a voting member of all NFL health and safety committees, including but not limited to the NFL Injury & Safety Panel and its subcommittees and shall have access to all of the same data, records and other information provided to the NFL Medical Advisor and/or any other member of such committees”; and
• Explicit declaration that: “[e]ach Club shall use its best efforts to ensure that its players are provided with medical care consistent with professional standards for the industry.”
In fact, the grievance claims that the “NFL and its member Clubs have continuously, egregiously disregarded these explicit CBA requirements as they apply to the proper, legal, medically ethical prescription, dispensing, and transportation of prescription painkillers.” Similar to the allegations in the Evans lawsuit the Union claims that franchise clubs’ personnel saw compliance with the law (and CBA) to be a “competitive disadvantage.”
Indeed it would seem little has changed since the DEA met with team doctors in 2011 (the same year the new CBA was ratified) in order to educate them regarding proper medical standards only to face “groans, catcalls and even some boos” according to the Washington Post. Doctors questioned why thy couldn’t fly with controlled substances since they’re allowed on Air Force One. The article states that “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,” to which he was told, “the law is the law.” The doctor then replied, “Well, my owner knows members of Congress, and he’ll get the law changed.” It appears he tried to do just that – the NFLPA grievance states, “the League did try to amend the CSA [Controlled Substances Act] through a bill in the House of Representatives – H.R. 3724 – that would allow team doctors to travel with controlled substances. The bill never passed. In writing to his congressman on January 8, 2012 to support the bill, Cowboys’ doctor Daniel Cooper stated that “[f]or decades under current law [the CSA], team doctors have illegally (yet unknowingly) transported and administered medications to injured players while covering games away from home.”
Among the post-2011 violations listed in the NFLPA’s grievance are:
• Dr. Marzo (Bills’ doctor) testified that, even after being informed that they could not travel with controlled substances in 2011, as late as 2014, he would still do so and administer that drug to a player.
• Bud Carpenter, the Bills’ long-time trainer, testified that doctors provided prescription medications at places other than where they were allowed to do so in violation of federal and state laws. He could not identify a single instance in which a player received any warning about a medication or consented to risks that had been identified to him before receiving the medication. He further testified that he wished things had been done differently.
• For another example, on October 13, 2014, 27 teams responded to a survey and noted that an average of 26.7 players (more than half of the active roster) per team took at least one dose of Toradol per game.
• And for the Steelers, the numbers only go higher. In a document dated March 1, 2013 from Lawrence Brown (on NFL letterhead) to Dr. Yates (Steelers’ team doctor), attached hereto as Exhibit D, Dr. Brown notes that “there was documentation of dispensing by a non-physician [despite the numerous warnings that had been going around the League since the early 1990s, as documented herein]. Please re-evaluate to insure that this behavior is congruent with federal and state regulations.” It also notes that during the “calendar year 2012, the [Steelers] medical staff … prescribed 7,442 doses of NSAIDs [again, 53-man roster] compared to League-wide average of 5,777 doses of NSAIDs per Club. Regarding controlled medications, [the Steelers] prescribed 2,123 doses of controlled medications compared to League-wide average of 2,270 doses of controlled medications per Club. By total doses, your Club ranks 10th in the greatest volume of NSAIDs provided by an NFL Club and 14th in the greatest volume of controlled medications provided by an NFL Club.” Dr. Yates testified that even last season, he witnessed players lining up for the “T Train,” – Toradol injections before a game – something that had been occurring with the Steelers for at least the previous 15 years.
The NFLPA also claims to have been excluded from the NFL Prescription Drug Advisory Committee meetings in violation of Article 39 Section 1(d) of the CBA, which mandates that the NFLPA’s Medical Director have “full access to all information on a health and safety committee.” According to the grievance:
The NFLPA Medical Director was given no access and no information with respect to the PDAC. This not only violated (and circumvented) Article 39, Section 1(d), but also affirmatively and improperly concealed from the NFLPA facts underlying the NFL’s and Clubs’ respective violations of Article 2 and Article 39, Sections 1(c) and 3(e). As soon as the NFLPA became aware of the existence of this committee through the publishing of the Complaint, it immediately requested that the NFL remedy its violation by providing the NFLPA Medical Director with the CBA required status and access; the NFL’s perfunctory response that the PDAC was no longer in existence and was not a health and safety committee when it did exist is, at the least, utterly disingenuous regarding the nature of the committee, and indicative of the NFL’s on-going violative withholding of CBA required information from the NFLPA regarding this important area affecting thousands of players’ health and safety.
In addition to asserting violations of the CBA by failure of the NFL to “impose its best efforts” to ensure its member clubs were in compliance, the Union says that it has learned through the Evans complaint “that the NFL was clearly cognizant of on-going legal and ethical violations by medical personnel relating to the prescription, dispensing and transportation of painkillers to players, yet the NFL has taken no disciplinary action against Clubs and/or medical personnel who committed, and presumably still commit, such violations.” Going further to illustrate NFL’s misplaced priorities and nefarious conduct, the grievance continues.
Having recently punished the New England Patriots to the tune of forfeiting first- and fourth-round draft picks plus a $1 million fine for alleged conduct relating to taking a tiny amount of air out of footballs, it is incomprehensible that the League has taken no action whatsoever against Clubs to redress and incentivize compliance with their Article 39 obligations towards the health and safety of NFL players.
The NFLPA states “based merely on the limited information currently available to the NFLPA, it is clear that the NFL’s conduct is far worse than a failure to use its total capabilities to ensure the Clubs’ CBA compliance—the NFL’s decision to take no action in the face of Clubs’ widespread and long-standing disregard for the health and safety of NFL players is tantamount to condoning the Clubs’ misconduct;” and declares the Union will bring the matter to arbitration should the NFL fail to respond.”
Should the matter go to arbitration the Player’s Association seeks “[s]pecific findings by the Arbitrator that the NFL and its member Clubs have violated and continue to violate Article 39 and Article 2 of the CBA, including but not limited to, findings based upon the facts enumerated in this letter, as well as those learned through discovery and at the hearing.” They will also seek an order of compliance for each instance of violation.
The NFLPA’s grievance, while likely harming the Dent litigation against the NFL might server to bolster the alternate Evans painkiller lawsuit against only the Clubs. Better late to the party than never, one might say in regard to the Union’s grievance. But one nagging question remains, “How could the NFLPA have been so oblivious to what was taking place that it took two lawsuits filed by retired players and widespread media coverage to take notice?”
Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.