NFL Hall of Famer Richard Dent and other former players will argue to the Ninth Circuit on Thursday that it should reinstate their claims alleging the league illegally distributed drugs to keep them on the field and increase its profits without regard to the players’ health consequences.
Dent, who played for the Chicago Bears from 1983 until 1993, and other players allege in their proposed class suit they were given large quantities of opioids, nonsteroidal anti-inflammatory drugs, and anesthetics without prescriptions.
The drugs were allegedly given with little regard for the players’ medical histories, the drugs’ potentially fatal interaction with other medications, and without warnings about possible side effects.
While the types of medications changed over the years, including amphetamines in the 1970s and Toradol in the 1990s and beyond, the volume and manner in which they were distributed remained constant, the players’ pre-oral argument filing argues.
The players argue the league “directs and controls a pyramidal prescription drug scheme,” that caused them latent injuries decades after they retired, and that the NFL breached duties of care through the scheme.
The players seek class certification on behalf of thousands of former players. Other named plaintiffs include Jeremy Newberry, a two-time All-Pro and Pro Bowl center who played for three teams from 1998 to 2008; Roy Green, a two-time All-Pro and Pro Bowl wide receiver who played for three teams from 1979 to 1992; J.D. Hill, a Pro Bowl wide receiver who played from 1971 to 1978; and Jim McMahon, the Chicago Bears quarterback who won the Super Bowl after the 1985 season and appeared in the “Super Bowl Shuffle” rap.
The Northern District of California dismissed the negligence claims in April 2019 after finding no evidence that the NFL directly handed drugs to players and clubs, leading the players to appeal to the U.S. Court of Appeals for the Ninth Circuit.
The league, however, is expected to argue that the trial court got it right because the players failed to allege that the NFL itself illegally distributed drugs or engaged in any affirmative misconduct. And the NFL owes a duty of care only to the extent that it was involved in the distribution of controlled substances, the league says.
The players’ assertion that a single club doctor who was medical adviser to the league—Doctor Elliot Pellman of the New York Jets—improperly dispensed drugs to some players “reveals how thin their NFL ‘distribution’ allegations really are,” the league says.
“Plaintiffs’ misguided reliance on Dr. Pellman’s alleged actions taken in his ‘capacity as a team doctor’ merely confirms that Club doctors—not the NFL or its employees—were the ones alleged to have engaged in the allegedly unlawful distribution of medications,” the league said.
And no court has ever held that a professional sports league has a duty to intervene and stop mistreatment by the league’s independent clubs, the NFL says.
Silverman Thompson Slutkin & White LLC represents the players. Skadden, Arps, Slate, Meagher & Flom LLP and Akin Gump Strauss Hauer & Feld LLP represent the NFL.
The case is Dent v. NFL, 9th Cir., No. 19-cv-16017, oral argument 3/12/20.