Return to NFL Painkiller Lawsuits (Dent/Evans)

Ninth Circuit Opinion on Preemption Revives Drug Lawsuit Against the NFL

Dent Wins Appeal

September 9, 2018
Sheilla Dingus

Law Professor – 1   ~  National Football League – 0

In a long-awaited decision, the Ninth Circuit Court of Appeals, on September 6, delivered an opinion keeping a potential class action lawsuit against the NFL filed by Hall of Famer Richard Dent alive for further arguments.

“Our clients are thrilled with the decision of the ninth circuit today. Today’s unanimous decision is an important decision for labor and, professional athletes looking to rectify tortuous conduct through the judicial system. They look forward to continued success towards their ultimate goal of making the game of professional football a safer sport,” wrote Steve Silverman, one of the lead attorneys representing the players, in response to Advocacy for Fairness in Sports’ request for comment.

In the lawsuit, Dent and nine other retired players described in careful detail decades of illegal use of powerful prescription medications by the NFL to keep injured players on the field, masking injuries and making money for the league as their long-term health was placed at risk.  Some of the players suffered organ damage due to the over-use of painkillers.  Some left the NFL addicted to opioids, and all are dealing with physical limitations because their injuries were masked and not allowed to heal properly.  The lawsuit was filed in May 2014, and in September the NFL filed a motion to dismiss based on LMRA Section 301 preemption, which states:

LMRA Section 301

The NFL has, in the past, experienced great success in having meritorious cases tossed on the LMRA preemption argument, positing that any behavior alleged against the league by former players requires interpretation and deference to the collective bargaining agreement with the NFLPA.  LMRA preemption has also become a high-hurdle for other unionized employees, but as law professor Phillip Closius writes in Baltimore Law Review:

Although § 301 remains essentially unchanged from the date of its adoption, judicial confusion over the scope of its preemptive effect frequently has broadened an employer’s ability to defeat state tort claims by its employees in the early stages of litigation with a motion to dismiss.   As a result of this evolution and accompanying confusion, the common law rights of unionized workers have been unfairly circumscribed simply because their union entered into a collective bargaining agreement with their employer.  Neither the statute’s framers nor the Supreme Court opinions which delineated § 301’s impact intended such an expansive result in favor of management. A proper understanding of § 301 and its preemptive effect produces a judicial test which protects the common law rights of unionized workers while still ensuring that collectively bargained agreements will be enforced uniformly throughout the country.

Professor Closius presented oral arguments for the players on their appeal to the Ninth Circuit on December 15, 2016, facing a tough battle against top-shelf litigator Paul Clement, who argued on behalf of the NFL.  After a twenty-one month wait, when the Ninth Circuit panel issued its opinion, they agreed with Closius and the players remanding the case back to Judge William Alsup in district court.

The unanimous opinion, authored by Judge Richard Tallman stated:


The highlighted portions of the text below define the threshold for LMRA preemption.


To paraphrase, if state or common law grants certain protections and rights to workers, the fact that a CBA is in place doesn’t nullify common law rights; it can expand upon them but not eliminate them.  In this instance, the players assert their common law expectation of employers to engage in lawful, rather than illegal conduct and assert the NFL has acted unlawfully regarding its handling and distribution of prescription medications.

Despite this distinction, however, many judges, including Judge Alsup have interpreted §301 to infer that any and all rights of union employees are directly derived from their CBA, putting them at a distinct disadvantage to non-union workers.  Judge Tallman described in the Ninth Circuit opinion the test that must be applied to claims that face §301 scrutiny.


The highlighted text shows a key factor in making a preemption determination that is often overlooked.  The Ninth Circuit applied this test to the claims at hand.


In addressing this, the Ninth Circuit concluded:

[W]e believe that a duty binding on the NFL—or any entity involved in the distribution of controlled substances—to conduct its activities with reasonable care arises from “the general character of [that] activity.” …lack of reasonable care in the handling, distribution, and administration of controlled substances can foreseeably harm the individuals who take them. That’s why they’re “controlled” in the first place—overuse or misuse can lead to addictions and long-term health problems.

Carelessness in the handling of dangerous substances is both illegal and morally blameworthy, given the risk of injury it entails. Imposing liability on those involved in improper prescription-drug distribution will prevent harm by encouraging responsible entities to ensure that drugs are administered safely. And it will not represent an undue burden on such entities, which should already be complying with the laws governing prescription drugs and controlled substances. Thus, we conclude that to the extent the NFL is involved in the distribution of controlled substances, it has a duty to conduct such activities with reasonable care.

The opinion goes on to further explain that “establishing that an entity owes a duty does not necessarily establish what standard of care applies, or whether it was breached. But when it comes to the distribution of potentially dangerous drugs, minimum standards are established by statute.”


Sometimes the devil is in the details, otherwise known as footnotes.  The NFL essentially argues that it has no duty to comply with federal drug laws.  The NFL’s precarious skirmishes with the DEA have been taking place for some time, with a Cowboy’s doctor going so far as to threaten to get the law changed in an exchange with a DEA agent.  The Ninth Circuit judges seemed to view the matter differently and indicated that the arguments should be decided on the merits of the case and not on preemption.  Citing Allis v. Chalmers, the opinion clearly and succinctly states, “The parties to a CBA cannot bargain for what is illegal.”

In similar fashion, the Ninth Circuit panel examined each claim pled by the players and found no reason for preemption.  While the ruling clearly stated that the merits of the case were not examined, it strongly held that the arguments presented should be decided on the merits and not on preemption issues.

This ruling can be considered a huge win not only for Dent and the other plaintiffs, but for many unionized workers who face similar preemption challenges.  The same day the opinion was published, it was submitted as a supplemental authority in two brain injury cases consolidated to the NFL Concussion Injury Litigation which seek remand back to state courts. While a Ninth Circuit opinion is not binding on courts under the Third Circuit, it should be strongly considered as persuasive authority.

As of now, it is unknown exactly how the Dent case will proceed.  The lawsuit has been remanded back to district court and Judge Alsup.  If no appeals are filed, the case will undergo further motion practice and hopefully discovery at the district level.  The NFL may, however, choose to petition for a rehearing en banc before the entire panel of Ninth Circuit judges.  They have fourteen days in which to do this, or alternately file an appeal to the United States Supreme Court.  In the Ninth Circuit, approximately 1,500 petitions for rehearing en banc are filed annually but only 15¬25 are selected for review.  Certiorari is granted for less than 5% of cases appealed to the Supreme Court, so it appears likely the case will continue under Judge Alsup at some point.

Phillip Closius

Law Professor Phillip Closius

Advocacy for Fairness in Sports reached out to Professor Phillip Closius of University of Baltimore Law School who represented the players in oral arguments for his thoughts on the big win.

Having listened to the oral arguments, I thought the judges seemed to be receptive to his position, but several experts cautioned me not to read too much into that—after all, he was arguing against Paul Clement, who is considered to be one of the top litigators in the United States, and one who has placed a number of “W’s” in the NFL’s win/loss column.

“We felt pretty good coming off the oral argument, the briefs, and everything else, but it’s always good to get it in writing, even though it took almost four years,” Closius related when I asked him how he felt afterward.

He explained that Judge Alex Kozinski, who had chaired the panel hearing oral arguments was accused of sexual harassment and resigned on December 18, 2017, almost exactly a year after the case had been argued. Kozinski was replaced by Judge Tallman shortly afterward, but as noted by Closius and in the published opinion, he had to review all the specifics of the case including the oral argument, which added presumably based on timing, another nine months to reach a decision.

 Shortly after the Dent oral arguments, I wrote an article, “A Tale of Two Lawsuits,” in which I recapped Dent, and compared it to a similar case that was filed shortly after Judge Alsup, dismissed Dent on preemption.  In the other case, a widow, Etopia Evans believed her husband’s life was cut short because of the quantities of drugs Charles had consumed at the urging of the teams he played for—all to keep him on the field when he should have been recovering from injuries.  Mrs. Evans was joined by several retired players who had also been adversely affected by careless or callous prescription drug violations and together they filed their suit against the thirty-two franchise clubs of the NFL.  While the Evans case survived preemption arguments and some pretrial discovery, Judge Alsup again seemed hostile to the arguments and eventually dismissed the case on procedural grounds.  The same attorneys representing Dent also represent the Evans plaintiffs.  The Evans case is currently under appeal and oral arguments at the Ninth Circuit are being scheduled.  Prof. Closius indicated that he thought the appeal would probably be heard sometime in December 2018 or January 2019 and that he will be arguing on behalf of Evans, as well.

In the Evans case, RICO claims were filed and promptly dismissed by Judge Alsup; afterward he proceeded to whittle down the remaining claims one by one, essentially ruling that players had no avenues of recourse for pursuit of their grievances outside CBA bargained benefits or workers compensation.  Prof. Closius indicated that only the RICO claims would be pled before the Ninth Circuit on the appeal; specifically the statute of limitations arguments Judge Alsup cited to sack the primary allegations of the lawsuit without consideration of delayed discovery.

Closius stated that a panel to hear the Evans appeal hasn’t been assigned yet, but short of someone else being accused of sexual harassment, decisions are normally issued approximately a year after oral arguments in the Ninth Circuit. “So, if the argument goes in December or January, we’d expect the opinion to probably be in the following January or February,” he said.

It appears that about the same time the Evans appeal is heard, arguments for Dent will resume, and hopefully this time the players will succeed in holding the NFL accountable for the harm inflicted upon them through the reckless use of powerful drugs.

Additional background on the painkiller lawsuits against the NFL can be found here.

Video of the winning oral arguments:

Editor at Advocacy for Fairness in Sports | Website

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.

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