January 24, 2019
Richard Dent’s lawsuit accusing the NFL of a callous return to play culture based on illicitly medicating players to hide their injuries and maximize profits is back in the District Court for the Northern District of California, and a colossal “chess match” is now underway. Following dismissal by Judge William Alsup in December 2104, a mere seven months after the lawsuit was filed, it was appealed to the Ninth Circuit Court of appeals. Almost two years later, oral arguments were held, and then the case seemed to fall into an abyss. For a year and nine months the court fell silent, then, on September 6, 2018, the three judge panel unanimously reversed the district court and remanded the case back to Judge Alsup for further proceedings. A 90-page amended complaint was filed on December 5, and on January 16, the NFL responded with a motion to dismiss.
Judge Alsup dismissed the original lawsuit based on Labor Management Relations Act (LMRA) §301 preemption, agreeing with the NFL’s arguments that medical care determined by the collective bargaining agreement between the NFL and NFL Players Association preempted the suit. The appeals court disagreed. Here are a few relevant excerpts from the Ninth Circuit ruling:
It can’t be stated strongly enough, what a huge win this was. Preemption has been historically a strong argument for the NFL. Law Professor Phillip Closius took on one of the most feared litigators in the United States, Paul Clement in oral arguments and prevailed. But now the work begins anew.
The Ninth Circuit did not rule on the merits of the case which is now before Judge Alsup again—a judge reputed to be a hard-ass (atlblog’s word, not mine) who has taken issue with people coughing in his courtroom, or lawyers tapping a pen against the table, or reporters typing too loudly— he can’t be happy that he was overturned and found a case he thought he’d disposed of four years ago back on his docket.
During the time Dent sat quietly on the Ninth Circuit docket, the lawyers representing him filed another lawsuit that landed in Judge Alsup’s court. This time, the plaintiffs pled similar charges against the NFL teams, since Alsup, along with the NFL implied the Dent plaintiffs were suing the wrong party. While Dent was dismissed in short order, Evans achieved considerable discovery before Judge Alsup dismissed most causes as time barred and granted summary judgment in favor of the defendants on standing.
Those issues remain to be addressed in Dent, in addition to defining the NFL’s role in the players injuries and separating their behavior from that of the teams.
Differences and Similarities in Dent and Evans
The Evans lawsuit seeks to pursue economic losses through a RICO claim, whereas Dent seeks personal injury accountability for long-term organ damage and permanent musculoskeletal injuries, that would have healed if not masked with the painkillers. Both lawsuits stem from wrongful conduct regarding the illegal and harmful distribution of prescription painkillers to players. Dent seeks to hold the NFL accountable for their role in the players’ harms, and Evans seeks accountability from the 32 member-clubs of the league.
The NFL recalls the language in the Ninth Circuit opinion and what the Dent parties must prove in order to prevail.
The NFL is aggressively pursuing these elements in their objective of checkmating the players’ position. They have requested a hearing date of March 7 or shortly thereafter to argue their motion to dismiss. Their arguments are concisely summarized in the brief’s introductory paragraphs.
It should be noted that the NFL is taking a narrow causation stance to mislead the court . Their reasoning: the doctor or trainer administered the drug. The doctor and trainer are employees of the teams; therefore, the NFL is not at fault. While these things have indeed taken place, they are the final elements of a much larger picture. The plaintiffs’ Third Amended Complaint, with the advantage of discovery obtained in Evans, points to the league’s coordination among doctors as well as its inability or lack of will to properly supervise to ensure their actions were lawful.
As described in greater detail in a previous article, the lawsuit describes a return to play culture driven by a desire for increased profits and fueled by media, in which roster sizes were diminished and players kept on the field despite severe injury though the use of powerful drugs. The complaint establishes that the NFL dealt with concerns by the DEA of improper and illegal drug storage and administration as well as other activities related to drug dispensation. One example of league involvement is illustrated in the following document.
Throughout, Dr. McClellan emphasizes a shared responsibility in containing opioid use and using analgesic medicines appropriately.
The doctor also addresses and admits the risks associated with the drugs and compares them to a “performance enhancing substance,” illuminating again, the shared responsibility for both the problem and solution.
In Evans, the plaintiffs collectively, through the course of their careers played for each of the 32 team in the NFL, and without exception, they found the same illegal medical practices. The named plaintiffs in Dent are fewer but the experiences of these players have been the same; wherever they wound up, they ran into the “white rabbit” culture of “one pill makes you larger, and one pill makes you small,” masking their injuries and or at least making them tolerable when they were urged back into play.
The third amended complaint in Dent seeks to establish the league roll in how players were misled, above and beyond the actions of team personnel.
The complaint states that in 1990 the drug program split with Dr. John Lombardo placed in charge of overseeing prohibited substances and Dr. Lawrence Brown overseeing medications. Why is Dr. Brown employed if not to implement league policy in that regard? The complaint answers this question in short order.
One of Brown’s responsibilities includes auditing teams’ compliance with drug laws. Deposition testimony and documents obtained in the Evans discovery reveal alarming numbers of infractions some of which are detailed here, to which the league did nothing to correct. In fact, one of the emails in a chain among several team physicians at a time when they found themselves under pressure from the DEA included this statement by a team doctor, “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” Does this not project an expectation of guidance from the doctors as well as negligence on the part of the NFL in not taking steps to fix its drug issues?
Nevertheless the NFL continues to beat the “team doctor and trainer” drum though it seems apparent that the team doctors expected guidance from the top.
Much of the outcome seems to ride on Judge Alsup’s ability or willingness to think abstractly. If he only holds accountable the person who physically administered the drugs to the players, this is problematic. It’s basically the equivalent of “Larry Nassar sexually assaulted hundreds of gymnasts, so only he is to be faulted,” while excusing the behavior of Michigan State, USA Gymnastics, and the USOC in covering for him and failing to investigate the gymnasts’ allegations.
Judge Alsup has demonstrated prior difficulty in distinguishing between the on field musculoskeletal injuries and how the players were injured by the improper use of drugs in short and long-term scenarios. The NFL appears set to capitalize on this.
“Time barred,” as mentioned previously, is one of the reasons Judge Alsup ruled for summary judgement in Evans. The Ninth Circuit panel also seemed to have difficulty distinguishing, based on their lines of questioning.
Though their preemption argument was shot down, the NFL found a winning argument with Alsup in the statute of limitations and hope to apply it again. Although all points in the NFL’s motion to dismiss must be addressed, this one will likely need extra attention, spelled out in simple terms, with perhaps a few analogies to bring the judge to the correct mindset. As long as Judge Alsup views the player’s injury as a sprained ankle, for instance, the ruling he applied in Evans will get an encore here.
While I don’t find the injury arguments difficult to follow, based on Judge Alsup’s prior ruling and the lines of questioning at oral arguments in Evans it’s clear that the judges are not acclimated to sports culture and the attorneys must find a way to clearly articulate the proper injury – the secondary injury caused by improper medication—in order for the lawsuit to survive dismissal and and avoid another trip to the Ninth Circuit.
Dick and Jane?
The plaintiffs’ complaint is well pled, and I’m baffled as to what it will take to get through to Judge Alsup. Hopefully it won’t come down to Dick and Jane reader, but, just in case one is needed, I’ll give it a shot.
See Dick. Dick is a football player. See Dick fall. Dick’s ankle is injured. Dick needs rest so that his ankle can heal. See Jane. Jane is Dick’s wife. Jane worries about Dick.
See Coach. Coach wants Dick to play more football. Coach does not want Dick to rest. Coach says to Doc, “Give Dick drugs. Numb Dick’s ankle so that he can play. Make Dick feel good.”
See Doc. Doc gives Dick drugs. Doc gives Dick lots of drugs and tells him everything will be ok. Dick has been taught to trust doctors. Dick likes Doc. Dick takes Doc’s drugs and Coach is happy. Jane worries about Dick.
See Roger. Roger runs the National Football League. Roger likes money. Roger watches Dick score a touchdown and hears the crowd cheer. Roger tells Coach’s boss “Great Job!” Roger says “Fans like Dick. Make sure Dick plays a lot. Dick will make us lots of money.” Coach’s boss is happy. Coach is happy.
Dick is happy because Coach is happy. Dick doesn’t know his ankle is getting worse because Doc is good at hiding pain. Doc and Coach say, “Good boy Dick.” Dick smiles.
Dick plays more football and scores more touchdowns. Dick is tackled. Dick hurts his shoulder. Doc gives Dick drugs for his shoulder. Dick’s shoulder feels better. Dick scores more touchdowns. Roger is happy. Coach’s boss is happy. Coach is happy. Dick is happy because Coach is happy. Dick is an obedient boy. Dick is a good boy. Dick plays more football. He plays lots of football. Sometimes Dick winds up at the bottom of a tackle. Once, Dick hurt his neck. One time when Dick was tackled, he hurt his knee. Doc always takes care of Dick. Doc gives Dick lots of drugs. Coach says, “Good boy, Dick.” Dick is happy. Jane worries about Dick.
One day Coach calls Dick to his office. See Mike. Mike is healthy, and fast. Coach wants to play with Mike now. Coach tells Dick he must leave. Dick is sad.
Dick looks for another team to play with. No one wants to play with Dick. They tell Dick he is slow. Dick is very sad. Jane worries about Dick.
Hopefully at this point an adult narrative can resume. Hopefully the judge will understand that Dick has now retired, but doesn’t yet realize he’s retired. He keeps trying to get himself back to peak condition, so that another team will pick him up, not realizing, yet, that he’s permanently impaired.
Unfortunately, returning to peak form turns out to be an elusive dream. Without the drugs, the pain doesn’t let up and now his ankle, knee, neck and shoulder hurt worse then they did when he was first injured. Eventually he realizes that he’s not going back to football and figures if he just takes it easy for a while things will improve. Unfortunately, the pain doesn’t let up. He tries to find another job, but work is difficult when his body aches all the time. This is where the paths tend to diverge..
Some players find they can’t cope without the medications that had masked their pain and secure them any way they can—legally or illegally. Some players become addicts because of the illegal and unethical way drugs were administered and find they can no longer function without them. The addiction leads to even more problems and puts the player in a downward spiral that’s hard to escape.
Some players manage to avoid addiction but find that their pain is so intense and so constant they simply can’t hold down a job for any length of time. The money saved from playing football is quickly depleted.
Many players have had to cope with seemingly unrelated health issues that continuously crop up, resulting in such serious conditions as renal failure and unexpected heart problems. All the while, the players look back fondly at their days in the NFL, still not understanding the betrayal.
Prior to the advent of social media, many players didn’t see a lot of each other or communicate frequently outside alumni events a couple times a year. When they attended, for the most part, they did what they’d been conditioned to do from youth. They put on a smile and tried to minimize the problems they were having as they’d done countless times before. A lot of the players couldn’t help but notice what bad shape some of their old teammates were in but didn’t speak of it to anyone but their wives.
I’ve heard this story many times from various players or their wives. The names change, the individual details vary but the persistent narrative remains the same.
Eventually a few people started connecting the dots and came to realize it was all the medications they’d been administered that continued to menace their bodies and, in some cases, inflict organ damage. Once this was understood it finally dawned on them that they’d been played–that the harms they suffered were preventable. They came to understand that had they been allowed to heal, they could have continued playing football at a high level for much longer. They would have been in better position to establish a second career. They begin to realize not only how much pain this has cost them but also how much income.
With the popularity of the internet and advent of social media, players and their wives began to compare notes and a lawsuit was filed; as news of the lawsuit spread, others heard, and they, too began to connect the dots and realized the same thing had happened to them, as Professor Closius explained to the Ninth Circuit in the Evans oral arguments.
I don’t know what it will take for Judge Alsup to understand and acknowledge the reality of the players’ situation. I’m sure he’d feel insulted if the attorneys were to resort to a “Dick and Jane” primer, but so far, he seems oblivious to what should be a clear narrative. I hope the attorneys find the words to communicate with Judge Alsup in a way he comprehends and accepts, because a clear understanding of the latent and permanent injuries that the drugs imposed over time is essential to overcoming the NFL’s statute of limitations arguments. If the injuries can be acknowledged as latent, in a similar vein as has been recognized in brain injury litigation then the players should prevail The discovery rule has been successfully applied in concussion/CTE lawsuits against the NCAA and NHL, plus one lawsuit against the NFL that managed to remain in state court and reach settlement on its own merits.
One of the points Judge Alsup previously took issue with was pleading with particularity. Fortunately, the discovery obtained in Evans has enabled great particularity in Dent’s third amended complaint.
If Judge Alsup will comprehend and acknowledge that the physical administration of the medications by team personnel is only the end result of the culture created by the NFL organization and its willingness to deceive the players, along with neglecting their self-imposed duty of properly supervising the Clubs and when necessary enforcing compliance with the law, then the players should be able to proceed beyond the procedural and finally be weighed on the merits. If not, a return to the Ninth Circuit may be inevitable.