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NFL Must Face Hall of Famer’s Suit Over Painkiller ‘Culture’ (3)

Aug. 7, 2020, 5:13 PM; Updated: Aug. 7, 2020, 8:55 PM

NFL Hall of Famer Richard Dent and other retired players convinced the Ninth Circuit on Friday to revive part of their proposed class action claiming the league illegally distributed drugs to keep them on the field without regard to the health consequences.

“It was within the NFL’s control to promulgate rules or guidelines that could improve safety for players across the league,” Judge Richard C. Tallman wrote for the court. “These are adequate allegations that the NFL’s carelessness in allowing drugs to be distributed as they were increased the risk of harm.”

Dent’s lawyer told Bloomberg Law Friday that the suit, which hundreds of professional players have joined, has already succeeded in bringing significant attention to the league’s painkiller-related shortcomings. He expressed optimism that more legal wins will follow the appeals court’s reinstatement of some of the players’ claims.

“The panel for the United States Court of Appeals describes the amount of controlled dangerous substances recklessly distributed by the NFL to the named plaintiffs as ‘shocking,’” said Steven D. Silverman with Silverman Thompson in Baltimore.

Richard Dent and the other plaintiffs have already changed the game for the better by bringing the leagues practices to light with this lawsuit,” Silverman said.

“Collectively, they are committed to a successful legal resolution on behalf of themselves and the more than 2000 former NFL players who have joined this litigation,” he said.

The lawsuit, filed in the U.S. District Court for the Northern District of California, accuses the league of overseeing a “culture of drug misuse” that centered around pushing hurt players back onto the gridiron before they were ready by overprescribing painkillers and anti-inflammatory medications.

Pressure to Play

The premature return to play often worsened the underlying injuries, and the drugs themselves had health consequences as well, they claim.

In addition to Dent, the lead plaintiffs include ex-quarterback Jim McMahon, who won Super Bowls with the Chicago Bears and the Green Bay Packers; former Pro Bowler Marcellus Wiley; and six other retired football pros.

A federal district judge in San Francisco initially threw the case out in 2014, finding it preempted by the Labor Management Relations Act.

The U.S. Court of Appeals for the Ninth Circuit resurrected it in 2018, saying the LMRA didn’t bar claims over the NFL’s handling of controlled substances because the league’s collective bargaining agreements with its players didn’t cover that subject.

The trial judge then tossed the suit again, ruling that the league itself wasn’t directly enough involved in the prescribing practices to face liability. Different players, represented by the same lawyers, unsuccessfully brought a similar case targeting the NFL’s teams.

The Ninth Circuit again partly reversed, calling the amended suit “striking” for its “painstaking recitation of injuries sustained by plaintiffs and the medications they recall receiving.”

Some Claims Tossed

Although the players failed to support two of their theories, they adequately spelled out their claim that the NFL voluntarily assumed a duty to “ensure the proper recordkeeping, administration and distribution of medications,” the court said.

The suit “paints a picture of the NFL’s ‘mandated’ and ‘required’ audits, oversight, and procedures regarding drug distribution,” Tallman wrote, “as well as the NFL’s failure to enforce rules that it knows are necessary to avoid further injury to players. These allegations support plaintiffs’ theory.”

“Two of the three legal theories asserted by the plaintiffs have now been definitively rejected by the Court of Appeals,” NFL spokesman Brian McCarthy told Bloomberg Law in an email. “We will address the remaining claim and are confident that it will similarly be found without merit.”

Remanding the case, the Ninth Circuit directed the district judge to determine whether that “voluntary undertaking” claim is preempted by the LMRA.

Judges Jay S. Bybee and N. Randy Smith joined the ruling.

The plaintiffs are represented by Silverman Thompson Slutkin & White LLC. The league is represented by Akin Gump Strauss Hauer & Feld LLP and Skadden, Arps, Slate, Meagher & Flom LLP.

The case is Dent v. Nat’l Football League, 9th Cir., No. 19-16017, 8/7/20.

(Updated with NFL comment in 16th paragraph.)

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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