by Sheilla Dingus
January 17, 2017
Herein lies a sordid tale.
It’s certainly no secret that the NFL is a highly guarded enterprise, only sparingly leaking the information they wish to make known. While a few high profile cases surface in the headlines, most litigation is seldom if ever reported. Although making thousands of appearances in courtrooms annually, the NFL’s high-powered legal teams have been quite adept at keeping most of its dirty laundry in the hamper.
The NFL settled for pennies on the dollar in a multi-district concussion settlement in which they committed to a $1 billion payout to former players over a sixty-five year period. In settling the suit, they weren’t forced to undergo extensive discovery or admit liability in regard to the players’ latent injuries related to brain trauma.
It’s possible the tide may be turning. Some recent court rulings are finally beginning to push the pendulum in the opposite direction. The NFL’s insurers have been engaged in litigation against the league in regard to its handling of traumatic brain injury cases since 2012 but had their case placed on the shelf awaiting the outcome of the aforementioned multi-district litigation. Now that the settlement is complete, an appellate court has commanded the league to comply with a discovery order. Alarming documents are being revealed in concussion litigation against the NHL. Depositions have also been ordered in one of the cases I’m writing about today.
Both the concussion suits, which have drawn considerable media attention and other, less publicized lawsuits involving pain killer abuse in the NFL are grounded in its “return to play culture.”
Numerous cases alleging improper and illegal use of prescription painkillers in keeping injured players on the field are quietly making their way into various courtrooms. Perhaps the most notable of these cases are the class-action lawsuits of Richard Dent et al. vs. NFL and Etopia Evans, et al. vs. Arizona Cardinals and the other thirty-one NFL member clubs. Both cases, which are in being heard in the Ninth Circuit, are represented by the same law firm, Silverman Thompson Slutkin White LLC.
Allegations in these suits are alarmingly similar. NFL doctors and trainers have illegally and unethically administered opioid painkillers and NSAIDs among other drugs in order to maximize profits by keeping injured athletes in play regardless of risks to the players. Both lawsuits cite a survey of former NFL players conducted by the Washington Post which found:
Nearly nine out of 10 former players reported playing while hurt.
Fifty-six percent said they did this “frequently.”
An overwhelming number – 68 percent – said they did not feel like they had a choice whether to play hurt.
Profit is the driving force within the league with current revenues reported as $13 billion annually and a goal of $25 billion by 2027.
The profit angle isn’t hard to see. And profit in and of itself is desirable and necessary in order to survive – but – when the quest for profit turns to greed it morphs into a deadly weapon with those in its trajectory caught in the crosshairs. This is reflected in many areas including the team relocations unfolding this year. San Diego Chargers fans learned last week that their team will be moving and resigned to second billing with the Rams in Los Angeles, a city that appears to have no interest in them. The move is primarily taking place because the taxpayers of San Diego refused to fund a new stadium for the elite. Fans of the Oakland Raiders may be the next to say goodbye to their beloved franchise in large part because the league views their stadium as inadequate and obsolete.
While new stadiums generate a great deal of income and prestige for the owners and NFL management, nothing generates more revenue for the league than media deals. In order to keep prices high for advertising sponsors, viewers must be attracted. As aptly demonstrated this season by the ratings roller coaster, nothing does a better job of this than airing competitive games and keeping playmakers on the field. How does the league accomplish this? In one word:
It’s reasonable to believe that everyone would prefer to put healthy players on the field, but when this isn’t possible, the use of painkillers and other drugs often accomplishes the task – potentially at great risk and often the eventual peril of many players.
According to the Dent and Evans lawsuits, this culture was likely born out of four cornerstone concepts that became the crux of NFL operating procedure, dating back to the mid-1960’s; These are profit, media, non-guaranteed contracts, and drugs.
Perhaps the most powerful position of leverage within the NFL machine is non-guaranteed contracts. The majority of a player’s salary is based on various incentives including number of games played and meeting certain performance objectives. A player can be cut and replaced at any time. Small roster sizes demanded by the league in order to keep overhead low only exacerbate the problem. There are only so many slots to be filled and if you can’t do your job for an extended period, you’re likely to lose it. An article by sports medicine physician Jessica Flynn does an excellent job of outlining the pressure this places on athletes to return to the game before injuries are healed, and the physical cost this exacts. Because of the insecurity of non-guaranteed contracts, every player knows he’s potentially one injury away from a sizeable loss of income if not his career. This opens the door to a dangerous gateway.
While physical injuries are inevitable in contact sports and responsible use of medication is necessary for pain management, medication use in the NFL seems to have far surpassed what could realistically be considered “responsible.”
Throughout the modern era of football, beginning around the time of the first Super Bowl, drugs have been administered to keep players in the game without permitting the extended rest needed for healing.
According to court briefs, there was a time when amphetamines and Quaaludes were the drugs of choice. “Uppers” were kept in candy bowls in the locker rooms for players to consume at their own discretion. While this practice has changed, painkillers and anti-inflammatory drugs have taken their place. One player has stated that on returning flights from away games, two beers are placed in the seat pockets in front of them and then after take off a trainer walks through passing out painkillers for the flight home. Never mind the fact that nearly all painkillers come with a warning against mixing them with alcohol.
Opioid painkillers such as Oxycontin, Percoset, and Vicodin, which work by blocking pain receptors in the central nervous system are alleged to have been administered in quantities far exceeding safe and legal dosages and durations by doctors of all team franchises; typically without any warning to the players of the deviation from normal dosages, potential side effects or precautions to avoid addiction from prolonged use. At times, the drugs are not even identified, but given to the player in an unmarked envelope with verbal instructions consisting of, “Take this.”
Misuse of NSAID anti-inflammatories by team doctors and trainers is also alleged. Toradol is one such drug, and it currently appears to be the NFL’s drug of choice. According to its manufacturer, Toradol should not be used for more than five days in the treatment of severe pain. Usage warnings indicate against usage in the case of bleeding or possible internal bleeding, or a head injury among other physical conditions. Potential side-effects, especially from prolonged usage include increased risk for heart attack or stroke, as well the possibility of stomach and intestinal bleeding which can also be fatal. All of these drugs can overwhelm the kidneys with prolonged or excessive use. Many former players are now in renal failure because of this.
In spite of the dangers, however, Toradol is one of the most commonly used medications for treating pain within the NFL. Allegations in the lawsuits claim team doctors routinely administer Toradol on game days to injured players in order to prepare them to take the field. Players from several teams recall lines of 30 – 35 players lined up for Toradol shots before games. For some players, it’s administered before every game of the season and its usage may even span several seasons in a row.
At one point its widespread usage and ease of availability even became something of a joke, with Hall of Fame coach and media analyst John Madden once commenting, “I know an announcer that goes down to the locker room to get a Toradol shot before a game.” This would seem to point to illegal use and distribution of drugs so common that, it’s taken for granted and rarely given a second thought by those on the inside. It also seems telling that after the painkiller lawsuits began to be filed, the NFL now requires its players to sign a Toradol waiver relieving the league and its clubs of liability.
While players are under pressure to return to the game, like most people, they rely on and trust their doctors to “do no harm,” as physicians swear under the Hippocratic Oath.
But former players claim this trust has been breached because of the culture created by the NFL. Doctors and trainers, who are paid handsomely for their services by the various franchises, have succumbed to pressure from their employers to do whatever is necessary to keep players in the game. Like the players, they know they’ll be replaced if they violate the code, and this facilitates among other things, the unethical and illegal administration of controlled substances and other painkillers. This also means that sometimes players are misinformed regarding the nature of their injuries. Several former players have stated that what later was revealed to be a broken bone or tear was characterized as a sprain that could safely be played through with pain management. As the tape went on, the drugs kicked in, and the “noble warrior” returned to the field.
According to briefs filed in the Evans lawsuit this is how medical care is presented to players versus the reality:
Former players also claim their doctors and trainers have hedged when they do ask about side effects. The most frequent responses to their questions are “none,” “don’t worry about them,” “not much,” “they are good for you” or, in the case of injections, “maybe some bruising,” all of which misrepresent the dangers posed by the drugs, including the kidneys’ inability to process the enormous quantities ingested.
Eric Branch, a beat reporter for the San Francisco Forty-Niners recently stated in an article for Sports Illustrated that he felt “the use of powerful and addictive painkillers” is the most underreported story in the NFL. He feels this is more difficult to report than concussions because all the “treatment” takes place behind closed doors. He also says that many former players are hesitant to “implicate their former teams if their pain was recklessly masked.” Current players “are loath to discuss injuries, let alone detail how they manage to play through a torn triceps or MCL sprain,” he says. As a sideline reporter, he’s observed that “it’s not uncommon to see an injured player get carted to the locker room and—voilà—quickly return to the game. What happened? He likely received more than a great tape job on his ankle.” Reiterating the point he refers to an incident that occurred this past season: “Before the 49ers played the Jets, wide receiver Brandon Marshall said he barely remembered his three-touchdown performance against the 49ers in 2014 because of the painkillers he took to play through a high ankle sprain. It didn’t become a national story because it’s an accepted—and poorly understood—part of the NFL.”
Could this be why accurate records are apparently not maintained regarding players’ treatment? According to allegations in one brief:
Both the Dent and Evans lawsuits, which represent former players from each of the NFL’s thirty-two teams, maintain that the painkiller abuse within the organization is part of an illegal collective and collusive effort on the part of the franchises and the league itself. As stated in the Evans brief, “the NFL juggernaut has exploded in terms of revenue and it intends to get even bigger. The Clubs share the same economic interest in keeping each other’s stars on the field and playing more games to keep TV revenues high, along with jersey sales and all the other means by which the Clubs profit off their players, while at the same time keeping rosters small and overhead low.”
While individual franchises value winning and will inevitably do what’s necessary to keep their premier players on the field whenever possible, the equal revenue sharing among the member clubs of the NFL makes it advantageous in terms of profit for their competition to do the same.
This return to play at all cost culture has been perpetuated for more than fifty years. As noted earlier, current players are hesitant to discuss injuries and treatment, as are many retired players, especially those with media ties. Are players becoming wise to the dangers or are they forging full speed ahead with blinders on? It’s difficult to say because of the skillfully woven secrecy within the NFL. While some former players I’ve contacted declined to comment for this article, others agreed to speak with me. In Part II of this series I’ll be detailing player experiences, and the impact it’s had on their lives, and as I conclude this series in Part III, I’ll examine the legal arguments in the Dent and Evans cases, and whether they’re likely to prevail.