July 20, 2019
Richard Dent is heading back to the Ninth Circuit Court of Appeals for the second time as he seeks to hold the NFL accountable for the NFL’s deceptive and illegal use of painkillers, that has left many players permanently and severely disabled. His appellant brief is due on August 22. Why his very competent legal team hasn’t been able to convince Judge William Alsup of the U.S. District Court for the Northern District of California of the NFL’s masterminding and role in the painkiller abuse is puzzling.
No one would ever accuse Judge Alsup of lacking in intelligence or nerve. He blocked Trump’s attempt to kill the Deferred Action for Childhood Arrivals program, known as DACA. He took a utility company to task for endangering Californians by failing to meet fire safety standards, finding them liable for seventeen wildfires. He certified a class action against the government filed by AIDS patients and their doctors, declaring that “the federal
government could not revoke drug licenses merely because a doctor makes a legitimate medical judgment, even if the doctor’s recommendation could then be used by a patient to obtain marijuana under Proposition 215 in violation of federal law.”
Alsup established a reputation as the “tech judge” and in Oracle v Google surprised both the plaintiffs and defendants with his knowledge of software coding. He emphasized the difference between “declaring code,” which is used to identify different actions, and “implementing code,” which carries out the actions affirming the jury’s conclusion of fair use reasonable, using a typewriter or computer keyboard for analogy.
“By analogy, all typewriters use the same QWERTY keyboard — imagine the confusion and universal disservice if every typewriter maker had to scramble the keyboard. Since both systems presupposed the Java programming language in the first place, it was better for both to share the same SSO insofar as they offered the same functionalities, thus maintaining usage consistency across systems and avoiding cross-system confusion, just as all typewriter keyboards should use the QWERTY layout — or so our jury could reasonably have found.”
In view of this, it’s quite difficult to grasp why he couldn’t or didn’t understand the Dent legal team’s analogy of the NFL to a drug cartel with the team doctors and trainers as merely street dealers. It seems just as clear and just as fitting as Alsup’s keyboard analogy. Dent’s initial complaint, filed on May 20, 2014, begins its introduction, “In contravention of Federal criminal laws, the NFL has intentionally, recklessly and negligently created and maintained a culture of drug misuse, substituting players’ health for profit.”
The 85-page class-action lawsuit goes into great detail explaining how the NFL has shrunk roster sizes, while increasing season length to cater to blockbuster media deals which demand the best players and how, in order to meet this demand in a game wracked with serious injuries and little downtime, drugs became the delivery method.
Sadly, Keith Van Horne isn’t an exception. Countless players have learned after their retirement they’d broken bones when they were told they had sprains. Quarterback Jim McMahon, who is also a plaintiff in the case learned upon retirement that he’d broken both his neck and his ankle, with neither injury disclosed, but instead camouflaged by powerful painkillers.
Despite a thorough explanation of the NFL culture, Judge Alsup said the plaintiffs were suing the wrong parties—the teams and their doctors and trainers were administering the drugs—not the Park Avenue executive offices. Alsup dismissed the Dent lawsuit in December 2014, just over 6 months after it was filed. The dismissal was based on LMRA § 301 preemption under the premise that players’ medical care is collectively bargained. The lawsuit was appealed to the Ninth Circuit where it sat without a ruling for almost two years.
In the interim, the attorneys heeded Judge Alsup’s words and selected another group of plaintiffs from among the over 500 who sought to become members of the class action and filed another lawsuit against the NFL Clubs in May 2015. Cumulatively, they played for every team in the league and all of them met with the same culture regardless of where they were playing. The case was originally filed in Maryland but transferred to the Northern District of California as related to Dent and given to Judge Alsup once again. In arguments before Alsup on June 9, 2016, Professor Phillip Closius, on behalf of the players said, “It’s a fairly straightforward case, your Honor,” a statement with which I strongly agree yet, both the Dent and Evans cases have been mischaracterized by the judge at nearly every turn, despite substantial discovery taking place in Evans, which clearly demonstrated illegal behavior on the part of the Clubs, and driven by the NFL itself.
Eventually, Judge Alsup dismissed Evans mischaracterizing the latent injuries of the players and its impact on their careers and earnings as the same injuries as those that occurred on the field for which the drugs were given to camouflage. Staggeringly, the Ninth Circuit failed to differentiate as well, upholding Alsup’s ruling. Dent, however, fared better at the Ninth Circuit, reversing Judge Alsup on the preemption dismissal.
Upon returning to the district court, the Dent plaintiffs filed a very detailed Third Amended Complaint, drawing from discovery obtained in Evans to highlight the drug law violations and further elaborate on the NFL’s highly profitable, but dangerous return to play culture. In a transcript from June 9, 2016, in a hearing for the Evans suit, University of Baltimore School of Law professor Phillip Closius did his best to explain. His words seem clear.
As the proceedings in Evans took place and were summarily dismissed and especially when Dent returned to his courtroom, it seemed clear the “henchmen” were the only parties that remotely interested Judge Alsup. This recently unsealed transcript from the hearing just prior to when Dent was dismissed for the second time by Alsup seems to speak for itself.
We pick up early in the proceedings when Closius recaps the Ninth Circuit’s directive.
Closius gives numerous examples of NFL and NFL employee involvement in the drug distribution scheme, but Judge Alsup refuses to budge from his strict interpretation that “any role” equals pill pusher.
Try as he may, Professor Closius was never able to get Alsup off his position that in order for the case to move forward, there had to be Park Avenue pushers. At times the dialog pushed the limits of “bizarre.”
It seemed either/or with Alsup. Either the NFL security office was a drug distribution point or NFL staffers were pushing team personnel aside to administer drugs.
Perhaps Judge Alsup was unhappy that the Ninth Circuit reversed him.
No matter what evidence of the NFL’s role in drug distribution was presented, unless the NFL Security Offices were serving as a shipping center for the pharmaceuticals or NFL executives were positioning themselves in locker rooms and pushing pills, Alsup shut down every argument and insisted that Professor Closius had misrepresented to the Ninth Circuit. You can view the oral argument here and judge for yourself.
While the Ninth Circuit did require that the players demonstrate the specific role the NFL plays in the painkiller allegations, unlike Alsup’s characterizations, none of the judges seemed to be looking for the type of overt behavior Alsup insists they were.
Déjà vu? These same arguments were made prior to Dent’s first dismissal. They filed the Evans suit against the Clubs and that was dismissed as well. Referenced in this transcript and included in the Third Amended Complaint, and in numerous exhibits filed in Evans, document after document is produced leaving no doubt of illegal drug distribution and as Closius stated earlier, involving everyone from the NFL through the Clubs and the doctors and trainers, but as Closius said earlier, “We’re not interested in the henchmen.” Why they are the only party Alsup is interested in seems incomprehensible.
When a law enforcement officer arrests someone for possession, he wants to know where the subject obtained the drugs. If he locates the street dealer, he wants to know where he obtained his supply. If that person is not at the top of the food chain, then he wants to know where that supply originated. In other words, the objective is to go as high as possible and disrupt operations. In all likelihood, the person at the top has never touched the drugs, and he certainly isn’t out on street corners selling them any more than Roger Goodell is personally injecting players with Toradol. (Come to think of it, that could be quite the deterrent for Toradol use. Who’d actually trust the Commissioner with a hypodermic needle?)
Law enforcement realizes if you want to stop an operation, you have to cut it off at its head. Street dealers are a dime a dozen and easily replaced as are their suppliers. Roger Goodell and the NFL owners sit in their insulated bunkers seemingly immune from prosecution and the burning question is, “Why?”
I’ve noticed a tendency in the courts for leniency when it comes to sports leagues and what also appears to be selective prosecution. Consider the hoops trials in which testimony and evidence indicated widespread corruption across the board, and not just with some low-level Adidas reps and assistant coaches. Not to mention that outside the scope of NCAA amateurism, the “bribes” would be “incentives” and considered a part of doing business. Why no interest in head coaches, Nike, or others? And why is it the federal government’s job to enforce amateurism?
Why are antitrust violations acknowledged but allowed to continue?
Why does the U.S. Olympic Committee consistently back sport governing bodies that allow sexual abuse of young athletes to flourish and thrive? Why has it been found complicit in some of the cover-ups yet been allowed to continue with business as usual?
Why did the DEA bend over backward to coax the NFL into compliance rather than prosecuting blatant drug violations? Why does OSHA fail to involve itself in sports workplaces? Why has the DOJ involved itself in Oakland’s spat with the Raiders? I could go on and on asking questions to which no suitable or credible answer has ever been offered.
In the NFL Concussion Settlement, the federal judge over the MDL has gone out on a limb to favor the interest of the NFL over that of the players. Why?
Moving beyond sports, when juries render large verdicts against corporate wrong-doers, almost without fail, the judge reduces the jury award to the equivalent of a regulatory fine or a mere slap on the wrist for conduct that has killed or severely injured people. Why?
In looking at another drug case Judge Alsup presided over, he ruled in Gilead that the pharmaceutical company “did not illegally manipulate the U.S. patent system by waiting years to introduce a less-toxic version of one of the world’s most-prescribed HIV medicines.” In Gilead, the pharmaceutical company waited for the expiration of a patent on a more toxic treatment before releasing the safer version. Quoting the Ninth and Second Circuits he opined, “Any firm, even a monopolist… may bring its products to market whenever and however it chooses.” Unfortunately, he isn’t alone. Recently the New York Times published an op-ed about the rising costs of life-saving drugs and how big pharma continues to flaunt the patent game as patients die, suggesting that the government should take control of the patents.
It seems the courts are eager to pass out “get out of jail free” cards to large corporations and if that corporation happens to be a popular sports league then they’re handed two cards for good measure.
In his first order granting the NFL’s motion to dismiss, Alsup wrote, “Therefore, the NFL should at least be given credit, in any negligence equation, for the positive steps it has taken and imposed on the clubs via collective bargaining.” This isn’t enough. For years the NFL and its clubs have trampled federal and state drug laws and any reforms that may have been implemented came far too late to help the men who filed the lawsuit.
Why is Congress turning a blind eye to all of this?
A lot of questions need to be answered.
Here’s the full PDF of the transcript from the Dent Motion to Dismiss hearing.
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