November 11, 2019
Derek Helling and Sheilla Dingus
The ability of the NFL to avoid liability for how current and former players were treated in regards to overuse of painkiller medications is rooted in its use of two “shields.” The first is a holding that its individual franchises, not the NFL itself, are responsible for any and all medical care that players receive. The second is that any indirect activity on the topic of player welfare is governed by the league’s collective bargaining agreement and therefore any player grievances should be handled within the parameters laid out by that document and that players forfeited their ability to use the courts in that manner when they agreed to the terms of the CBA.
That’s exactly the points the NFL makes in its response to Richard Dent’s third amended complaint against the league.
Dent alleges that the NFL is liable because it controls and supervises member clubs’ dispensation of painkiller medications. The NFL, in its recent response dated Oct. 23, not only refutes that allegation but rehearses the same points already mentioned.
The NFL’s motion before the Ninth Circuit Court of Appeals to affirm the decision of District Judge William Alsup plays heavily on a “home-field” advantage. That is, the burden of proof lies on the plaintiff in Dent v. NFL. Combined with Alsup’s “logic” which has been very friendly to the defendant, it appears that Dent’s challenges at the Ninth are every bit as imposing as the struggles of daily life that former NFL players like him face because of the documented distribution of Toradol like candy.
The NFL begins its pleading by stating that the Ninth’s decision to allow Dent to carry on with his action via the TAC depends on his ability to substantiate one allegation: that the NFL was actively involved in illegal and irresponsible handling of prescription painkillers and the administration of such to players. Even if Dent is able to prove that the NFL was negligent in its oversight of such activity, the brief argues, that would be covered by the CBA and thus preempted by labor law.
Building on that point, the NFL argues Dent’s complaint fails to make any allegations that anyone employed by the NFL was actively and directly involved in illegal activity. The brief states that upon each attempt, the alleged illegal activity was undertaken by the teams, not the NFL itself.
Because the path to relief for Dent has been so restricted, providing the necessary proof for the narrow prescribed course will be difficult if not impossible. This isn’t happenstance or just a set of circumstances that worked out in the NFL’s favor. It’s very intentional on the league’s part.
Dent’s complaints lay out how the NFL has avoided its responsibility to take care of its players, leaving that instead to its member clubs. Whether that was done intentionally to absolve the NFL of any liability in situations exactly like that which Dent’s complaint details is unclear but a scenario laid out as an example by Judge Alsup is a great example of the NFL’s defense strategy.
Alsup stated that in illegal drug distribution operations, there is often a “kingpin” who never physically stores or touches the substances. Nonetheless, this kingpin controls every aspect of the organization and profits off its business. The kingpin’s lack of direct contact with the drugs’ distribution is intentional, making it more difficult to pin the illegal activity on her/him if the authorities begin investigations. Alsup stated if that was sufficient to alleviate such individuals of any crime, then no governments would ever be able to prosecute such individuals in connection to illegal substance operations, which is exactly the point that Dent’s attorneys have attempted to make. In an apparent conflict to his own analogy which he admits would keep drug kingpins like El Chapo immune from prosecution, he does not carry the reasoning through in applying it to the NFL and its “street dealer” clubs. Judge Alsup in the hearing prior to dismissing the Dent lawsuit, insisted on proof that NFL and not club employees (or at least in addition to them) were passing out pills and giving Toradol injections.
In essence that’s the narrow path that Alsup created for Dent despite his statement, however. It’s also given a broad path to the NFL successfully arguing that his decision should be upheld as well. Prior to his first dismissal of the Dent lawsuit, Alsup agreed with these very same arguments leading to that dismissal. In the aftermath, while Dent was under appeal at the Ninth Circuit, another lawsuit was filed on behalf of a different group of players.
The Evans lawsuit was based on the same allegations as Dent, however, in that instance RICO claims were asserted seeking relief for the premature ending of players’ careers, and preventing many of them from being able to engage in substantive employment after their NFL careers ended. Substantial discovery took place to confirm the allegations of illegal painkiller abuse, however, the RICO clock clicks differently than the clock of a personal injury claim and that lawsuit was dismissed as untimely and filed after the appropriate statute of limitations had expired.
Dent had been dismissed on CBA preemption which was overturned at the Ninth on its first appeal.
In the current action, the NFL’s brief doesn’t go as far as to lay blame for any illegal activity on employees of its member franchises, but it hammers the point that distribution as at the hands of employees of member clubs and not the league itself. Because of that, the NFL claims that Dent’s TAC was correctly dismissed as it failed to state any allegations upon which relief could be granted.
While the court does not deal in hypotheticals but what actually took place, a scenario is plausible given the NFL’s pleadings. The NFL’s brief argues that the NFL has no duty of care to players and its clubs are free to adopt their own standards of care.
Suppose one team or a group of teams decided to defy recommendations by the league on how to handle painkiller medication distribution. That scenario is unlikely because that team would face a competitive disadvantage on the field and in retaining top-level talent by doing so, in addition to risking creating internal strife between club owners. For the sake of argument, however, suppose that became the case and it became widespread public knowledge.
Would the NFL take no action on that, deferring to the “sanctity” of clubs’ agency to treat their players as they saw fit? It’s hard to imagine that course of action given the negative public relations situation that would arise. More to the point of Dent’s complaint, would the NFL itself have no authority to sanction a club in that situation?
If the answer to that question is yes, then Dent legitimately has no claim in this situation. Under that set of circumstances, the NFL is merely a bystander in the situation and all the blame for the treatment Dent alleges falls upon the teams he played for. It’s reasonable to state, however, that if the NFL can revoke franchises’ draft picks for using under-inflated footballs, then it also has the ability to sanction clubs for violating federal and state laws.
While the power to discipline and authority to regulate policy isn’t necessarily always one and the same, the latter is useless without the former. If the NFL can sell clubs’ broadcast rights on their behalf, despite the potential for clubs to sell that commodity for a higher profit individually, it’s fair to say that much of the teams’ affairs are controlled by the league.
Dent’s fate now rests on how the Ninth Circuit views the NFL’s role in the distribution chain. The judges stated in their prior opinion:
These passages are likely the most critical for Dent now. The Ninth Circuit seemed to agree with the District Court that Dent, was in some ways attributing the actions of the team personnel to the NFL, however he also acknowledged that the NFL implemented a league-wide Toradol waiver policy and that medications are controlled through NFL Security offices. Whether policies like the Toradol waiver and the role of NFL security among other actions by the league will be considered sufficient is yet to be determined.
It’s often said, “If the facts are on your side, argue the facts, if the law is on your side, argue the law, and if neither favor your case, yell louder than the other party.” Dent has argued irrefutable facts to demonstrate that painkillers have been administered carelessly and illegally to players. The NFL has argued a narrow interpretation of drug laws that would only leave team personnel who directly administered medications liable, and Judge Alsup agreed with this interpretation. This narrow interpretation fails to account for how drug lords like el Chapo are prosecuted when they likely have less control over street distribution of their product than the NFL has over its member clubs.
If the Ninth Circuit panel decides the overseer role of the NFL is sufficient to have directly violated drug laws, the violations of which injured the players, the suit will continue. If the Ninth Circuit holds similarly to Alsup, that the NFL must have a direct contact role with players regarding the illegal administration of drugs, the appeal will fail and the lawsuit will likely end since the only avenues remaining at that point would be a request for an en banc hearing before a panel of all Ninth Circuit judges or a certiorari petition to the Supreme Court, either of which offer only about a 2 percent chance of even being heard.
The authors of this piece differ slightly in their predictions of how the dust will settle when the Ninth Circuit rules. While both writers agree Dent’s case is meritorious, Derek says, “But fair and reasonable aren’t part of the situation for Dent now. The NFL’s brief points out how he has failed to come up with a smoking gun that implicates the league itself.” His reasoning goes back to the original appeal on preemption and because of that, his claims are covered by the CBA, which was the basis of the prior District Court ruling. His opinion aligns with that of numerous legal scholars that Advocacy for Fairness in Sports queried during that appeal. “Because the court refuses to accept anything less than that smoking gun which the NFL has likely taken great care to never create in the first place, Dent’s prospects appear grim,” Derek says, leaving Dent’s prospects at zero.
Sheilla takes a slightly more optimistic view, giving Dent about a 30% chance of success. She feels that the case likely hinges on the composition of the panel of judges and their own interpretation of the law and how wide or narrow they cast it.
Dent will have the opportunity to file a response to the NFL brief and then oral arguments will be scheduled. It will be interesting to observe the line of questioning by the appellate panel as this is often an indicator of how the judges are leaning. Until then we wait.
Derek Helling is a journalist out of Chicago. Illinois, who covers the intersections of entertainment and sports with business, law, media and technology. He publishes a newsletter, "The Ninth Circle of Helling," that focuses on labor issues in North American sport.
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.