December 21, 2018
Sheilla Dingus
On December 19, the second of two appellate oral arguments regarding the NFL’s misuse of prescription drugs, concealment of the harms, and impact on the players who took the drugs at the urging of their teams, took place at the Ninth Circuit Court of Appeals.
The first case heard at the Ninth Circuit, headed by Hall of Famer Richard Dent was reversed and remanded to the lower court for further proceedings. An amended complaint drawing heavily from discovery gleaned in the Evans lawsuit, was filed on December 5. The plaintiffs in the Evans case, that was argued on December 19, seek a similar ruling, however, unlike with the previous case, the adjudicating panel, composed of a different set of judges, Consuelo M. Callahan, N. Randy Smith and Mary H. Murguia seemed largely adversarial toward the players’ claims. (Smith was on the Dent panel with Bybee and Kozinski, who was later replaced by Tallman.)
University of Baltimore law professor Phillip Closius delivered arguments on behalf of the players, stating the district court based its ruling on the wrong injury, but he was interrupted about two sentences into his delivery.
“I’m having trouble understanding the injury a little bit myself,” injected Judge Murguia, “So maybe you can tell me specifically because you say that you did not become aware of the defendants caused, injuries for your plaintiffs until at the earliest March of 2014. Correct?”
As he attempted to address Judge Murguia’s well placed question, since the appeal is focused on the business injuries of the players and when/how they became aware of the NFL Clubs’ role in those injuries, Judge Smith interrupted, apparently having difficulty differentiating the players’ physical injuries, and the non-physical injury at issue—that of the illegal conduct which caused harm to the players, apart and aside from the physical injuries they sustained. This seemed reflect the same barrier as Judge Alsup’s failure to differentiate in the district court case.
While Professor Closius tried to explain that the physical injuries were only a catalyst for the sustained damages for which the defendants were responsible, Judge Callahan chimed in that physical injuries are “Duh argument” for professional athletes. She added, “What injuries are you referring to because this is your opportunity.”
“It’s not the normal wear and tear that occurs in football. Injury is the premature ending of the careers because of the illegal use of medications and the fraudulent coverup of those illegal medications,” the professor clarified.
At the heart of the matter is the civil RICO statute of limitations, which generally precludes a lawsuit if filed after the statute of limitations expires.
The Supreme Court in 2000 held in Rotella v. Wood, a case that was cited frequently throughout the arguments, that the four-year statute of limitations period begins as soon as a plaintiff discovers his injury, regardless of when the fraud causing that injury is discovered. The exception to this is when equitable tolling can be applied.
Under federal law, and repeated in Rotella a statute of limitations may be tolled due to the defendant’s fraudulent concealment if the plaintiff establishes that:
- the defendant wrongfully concealed material facts relating to defendant’s wrongdoing;
- the concealment prevented plaintiff’s discovery of the nature of the claim within the limitations period;
- the plaintiff exercised due diligence in pursuing the discovery of the claim during the period plaintiff seeks to have tolled.
When I contacted Professor Closius for comment, he explained that equitable tolling is central to the Evans case. He differentiated between the Evans and Dent lawsuits, in that the latter is based on players’ latent injuries such as heart problems, renal failure, or permanent musculoskeletal damage as a result of the illicit manner of medication administration they were subjected to, while the former is a RICO claim based on injuries, or damages to players’ business interests.
This differentiation of two separate injuries facilitated by the same action makes the arguments in the December 19 argument more understandable, because quite frankly, until this was pointed out, I was stunned that more attention wasn’t given to the physical harms players are now experiencing as a result of the defendants’ concealment and misrepresentation of the safety of the medications players were encouraged, or pressured to ingest in massive quantities.
Still, the Evans court seemed skeptical at best, adversarial at worst, and possibly confused as to the injuries the players pled, when they realized they had been financially injured by the defendants, and whether they pursued due diligence during the time of normal statute of limitations tolling.
Randy Smith, the lone man on the judicial panel appeared almost hostile to the players’ position at times, “Why isn’t it the date on which the retirement happened the date? I mean it was a premature retirement. They know it’s premature retirement. They have then every notice of opportunity to do something about that and to say something … so why doesn’t the statute run when the retirement happens?”
Professor Closius explained that the clock started ticking in 2014 when the Dent lawsuit was filed. As odd as this might seem, the filing of a lawsuit is often the catalyst for plaintiff’s action when they observe a connection to the damages presented and their own—things that left them perplexed previously but now make sense. Concussion injury litigation is a prime example of how this works.
Players were living with a myriad of symptoms: depression, impulse control issues, headaches, light sensitivity, dementia, and an uncanny number of Parkinson’s Disease and ALS diagnoses, that were a mystery to them. Because many players and their families kept the symptoms to themselves for fear of stigma and ridicule, they had no idea how many others who also played football were going through the same difficulties.
After Dr. Bennet Omalu’s startling discovery upon examination of Mike Webster’s brain, Chronic Traumatic Encephalopathy (CTE) became part of the vernacular. Lawsuits were filed that drew national attention, and players and their families finally connected the dots.
The same thing occurred when Dent was filed. Retired players began to associate their current health ailments and the premature end of their careers with the medications they received while employed with NFL Clubs. Prior to this time, the players were unaware as to how they’d been used and deceived to meet an immediate need by their teams, and in a eureka moment realized that their doctors had never looked after their best interest but rather that of their mutual employer.
They were never given any warnings about the drugs they received. They were never told that the quick fix would likely extend their play in the current season but prematurely end their careers while leaving them with lifelong pain and diminished career opportunities. They had no idea the manner in which doctors and trainers, administered medications at the direction of their teams and the NFL, was both dangerous and illegal.
They began to understand what had taken place when media began reporting on the Dent lawsuit. They sought to file lawsuits of their own because they finally realized their own struggles were also a result of the same misconduct.
Judges Marguila and Callahan, wanted clarification as to how this was possible.
“They thought that what was being given to them and what had happened to them was normal business practice” Professor Closius explained. “They thought it was just perfectly fine. They had no sense that they were being damaged by an illegal distribution of the drugs. They didn’t know they were illegal…They trusted their doctors, Your Honor. They trusted their coaches. They just thought this was normal.”
“They didn’t have to know about the criminal enterprise and a conspiracy and the predicate acts,” he explained. “They didn’t have to know all that to start the clock. We got it, but Rotella does say specifically the clock doesn’t start until the defendant knows he’s been hurt and who has inflicted the injury.” He tried to get into the culture behind professional football stating that the players were in their twenties when Judge Smith interrupted.
“I know who they are,” he retorted. “I know and…these are not the only 20-year-olds in the world. Constructive notice here and…I don’t know why they’re not on constructive notice of their claim at that point.”
Judge Smith seemed to have little understanding of football culture, especially the accelerated culture of the NFL. He didn’t seem to grasp that when boys demonstrate talent on the gridiron, that it’s stressed for them to “be present” to do as they’re told by coaches or others in authority, and to always put the team first. I wish Professor Closius had been given opportunity to elaborate.
A proper comparison would be basic training for the military, where recruits are reprogrammed to obey orders under any circumstance and are discouraged from engaging in independent thought that might not support the objectives of their superiors. This is also the mindset ingrained in players from their youth and exploited when they reach the NFL.
A famous quote comes to mind:
The two female judges, Callahan and Murguia seemed slightly more understanding. Judge Callahan wanted to hear more on the plaintiffs’ legal support of their position.
“Your Honor, equitable tolling usually takes affirmative fraud and we do allege affirmative fraud,” Closius asserted. “Answering questions about side-effects truthfully, statements about the NFL gives the best healthcare in the world, telling people that broken legs are just sprains,” were the acts he cited to support the argument that NFL Clubs were affirmatively deceiving players and not just passively neglecting to keep them informed. This is an important element necessary for the case to continue.
Judge Smith still seemed oblivious to the difference in physical injuries as a catalyst for notice, rather than the ruse, the teams successfully foisted on players to assure their compliance in the scheme.
“The harm is the wrongful conduct, your honor. It’s not simply the wear and tear of normal NFL existence,” Closius patiently explained.
At that point, Judge Smith turned the discussion to what steps the players may have taken to detect their injuries—the third prong in the Rotella test, telling the professor, “Tell me, give me some good because I don’t find anything in your complaint that talks about what to plaintiffs do to investigate their injury.”
“Your Honor,” Closius replied, when he was again interrupted by Judge Smith.
“And frankly I don’t think you’ve got a fraudulent concealment. Even if we give you all of this, unless there’s some allegations about the diligence in the attempt to uncover the scheme.”
Professor Closius pointed to the complaint, which stated on page 21 how players inquired and were lied to about side effects, but before he could continue, Judge Callahan, informed him that he was out of time.
Gregg Levy of Covington & Burling, representing NFL Clubs was up next. He was permitted to discuss legal precedent cited in both appellant and appellee briefs for nearly three minutes, uninterrupted, contrasted with Professor Closius, not once through the proceeding allowed an entire minute without interruption. Finally Judges Murguia and Callahan began to ask questions.
Levy, seemed an echo of Judge Smith, “There are two respects in which plaintiffs were put on notice of their, of the injury here. I mean the first is the premature end of their career. But in addition, the complaint itself on the face of the complaint, plaintiffs alleged all of the facts upon which they would rely to establish the predicate acts to support a RICO claim. Those examples include allegations that the plaintiffs had received pills, unmarked containers without prescriptions from athletic trainers rather than doctors in airplanes or the visiting team locker rooms without disclosure of the, uh, of the underlying, uh, of any risks. Those were…”
My thoughts as Levy delivered his answer drifted to the fact that the players allegations were supported by discovery conducted in the case; actions that were clearly illegal and seemed disturbing to the Dent panel. At the time, the players had no idea, that the method in which the drugs were dispensed was illegal, only learning of the illegality of the conduct through the news reports on the Dent lawsuit and finally linking the deception with their own suffering.
Judge Callahan perhaps was thinking along this line when she said, “I’m just wondering if the plaintiffs have a colorable argument that defendants passive conduct is deemed fraudulent concealment because of the doctor patient fiduciary duty between plaintiffs and their team doctors and trainers.” But then she qualified her statement in saying, “I’m trying to make the best argument for them now.”
Appellate panels are known for playing devil’s advocate in their lines of questioning, and I’ve been cautioned by lawyers with appellate experience in reading too much into their questions for that reason. For the same reason, it’s often difficult to get a true feel for what the judges are really thinking or how well they understand the case.
After several minutes, Judge Smith, in a seeming reversal of his mindset in questioning Closius, or perhaps merely playing devil’s advocate said to Levy, “I understand what the problem is here is. It seems to me that the plaintiffs’ claim is though we knew that we were injured, though we knew we were forced out onto the field before we should have been, though we knew we retired, we really didn’t know it was fraudulent until this case comes along well, and I guess am I bound by that? Please respond.”
His answer, citing the Supreme Court decision in Rotella makes no attempt to deny the fraud perpetrated upon the players but instead of denying the fraud, posits that it’s irrelevant.
“[I] in the circumstances presented there [Rotella], the plaintiff couldn’t know that he had been injured until he knew of the fraud. It’s a situation where the plaintiff missed out on an opportunity because he was unaware of the discovery abuse or the discovery failure and he couldn’t know that he, he settled his claim for less than the claim was worth. It’s, the, the same situation…” In citing another persuasive authority, he says, “it suffers from the same flaw because in Beneficial Standards at that was the case involving a kickback scheme an employee kickback scheme and the…plaintiff wasn’t in a position to know that he had been injured, that money had been effectively embezzled from him until he learned of the fraud. And so, when the court in those circumstances uses the term fraud, while I would prefer the language to be more precise and I would prefer that they use that he used the word injury. He’s referring to discovery of the injury because the injury cannot be discovered until the fraud is identified. And both cases, because it does seem…”
Judge Murguia interrupted the soliloquy, “Our circuit has held that a plaintiff’s civil legal claim does not begin to accrue until plaintiff has actual or constructive knowledge of the fraudulent scheme or the fraud. And it looks like our case law here is to define constructive knowledge as when a plaintiff has enough information to warrant an investigation, which if reasonably diligent would lead to discovery of the fraud.” She asked him to reconcile, at which time, he pounded his points for over another 3 uninterrupted minutes.
He admitted that in some of the prior case law, both injury and fraud were discovered simultaneously, but indicated his position that it was the discovery of the injury rather than discovery of the fraud that started the clock. He makes a comparison with Rotella, which he calls “striking” in that the plaintiff had been wrongly confined to a psychiatric facility due to a fraudulent enrichment scheme between his doctor and the facility in which he’d been confined. Like the plaintiffs in Evans, Mr. Rotella learned of the fraud because of a lawsuit when it was reported that one of the directors of the facility pleaded guilty to criminal fraud related to improper relationships and illegal agreements between the company and its doctors.
In Rotella’s case, his injury had been improper hospitalization, which he was aware of at the time of his involuntary admission to the facility. He learned why this happened when he discovered the fraud revealed in the lawsuit.
That’s why it’s important for the court to properly identify the injury the plaintiffs are alleging. Their physical injuries sustained while playing in the NFL would equate to Mr. Rotella’s hospitalization. These are not the injuries from which they seek compensation. If the proper injury is identified—post career harms precipitated by illegal, irresponsible, and deceptive use of powerful drugs to render them pawns of a not-for-long system, then the clock starts in 2014, well within RICO statutes of limitations.
Judge Smith proffered the next question asking Levy to comment on the diligence of the plaintiffs, since they allege their injury was hidden from them through fraudulent concealment.
Levy fell back on the argument bolstered by District Judge Alsup in that allegations of fraudulent concealment must be pled with particularity.
In this instance, the players were not positioned at the onset of litigation to have adequate information to plead with great particularity, however, through the course of discovery, the information surfaced, but wasn’t allowed to be utilized for the RICO allegation since Alsup dismissed the RICO claim, allowing the players to proceed only on personal injury causes of action.
Levy faulted the players for not having doctors investigate, but when a scheme such as this is concealed, and the player is unaware that his financial health was adversely impacted by the illegal actions of the defendant, he should not be placed on a clock to investigate something that he’s unaware of. It also seems proper to point out that when the players who filed this lawsuit were employed by NFL teams, and for some many years after their retirement, the information super highway known as the internet was in its infancy. There was no such thing as Google or Bing. Social media sites didn’t exist at the time, so there was little if any information available that could have alerted the players, even if they did have suspicions about their doctors’ orders. For them, it was normal to simply trust that the doctor knew what he was doing and had their well-being at heart when he handed them envelope after envelope of pills or told them they needed a shot.
As his time came to a close Levy inserted that most of the players had filed workers comp claims to allege they were aware of their injuries, but while the players did file workers comp claims, they filed those because of the physical injuries they sustained at work, the same as a construction worker whose foot is crushed by a piece of equipment or a food service worker whose finger is severed by a slicer.
ACL tears and fractured bones are not the injuries at issue here.
In his two-minute rebuttal, Professor Closius zeroed in on some important facts that served to prevent the players from discovering the concealment, not the least of which was lack of mention of the medications and the dosages they were given in medical records supplied by the teams.
“So we do have evidence of fraud and the medical records in paragraph 114, Your Honor; all the cases are clear that the statute of limitations doesn’t run a new discovery rule until you have two different things, knowledge of the harm and knowledge of the defendants wrongful conduct,” he asserted.
He pointed out that the district court “never looked at whether they had knowledge, actual or constructive knowledge of the wrongful conduct of the defendant.”
“At best, it’s constructive knowledge of wrongful conduct by the doctors. We didn’t sue the doctors. We sued the teams. We didn’t sue the henchman. We sued the people who started the enterprise, who profited from the enterprise and who maintain the enterprise. Your Honor, every case cited from Rotella on down has something that showed knowledge of wrongful conduct by the defendant either filing a prior lawsuit or being given a written annual report or something that revealed the fraud. That’s what keys constructive notice,” Closius asserted. “We have none of it here, your honor. There was no indication given to these players by anyone that the teams were in fact masterminding this and telling the doctors what to do and the doctors were not acting in the best interest of the players. For those reasons, Your Honor, we respectfully request that you reverse the decision of the district court.”
In request for comment, Professor Closius responded, “The District Court held that players taking the drugs and having their careers terminated was sufficient to give them constructive knowledge of the NFL teams illegal activities and fraudulent coverup. We feel that does not properly focus on the injury we alleged. Our players could not have known that the drugs were being illegally distributed and the teams were coercing the doctors not to act in the players best health interests.”
As mentioned previously, it’s difficult to get a true handle as to how an appellate panel views a case, and so the wait begins. It’s not unusual for a year to pass between oral arguments and a decision. In Dent, the wait was almost two years, but this was at least in part delayed by the resignation of Judge Kozinski.
For those who’d like to view the arguments in their entirety, we’re including the recording posted by the Ninth Circuit.
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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.
