The possibility that the NFL could be held legally responsible for individual team doctors improperly giving players painkillers to keep them on the field may turn on whether the Ninth Circuit will accept an aiding and abetting theory of liability.
That theory was raised by Judge Richard C. Tallman during oral argument Thursday and quickly embraced by the players after further questioning by Judge N. Randy Smith.
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.
Counsel for the players, William Sinclair with Silverman Thompson Slutkin & White LLC in Baltimore, conceded during argument before the U.S. Court of Appeals for the Ninth Circuit that the players don’t allege the NFL gave direct medical care and treatment to players.
But the league had a duty because it was involved in administering the drugs, Sinclair said.
“If the NFL or any entity has involved itself in controlled substances, the handling, administration or distribution thereof, but lacks reasonable care in what they do, then there’s a duty,” Sinclair said.
“That’s essentially aiding and abetting,” Judge Tallman said.
Under that theory, he said, the team physicians and trainers may have actually been the ones to breach the federal drug statutes.
But the NFL may also be complicit in aiding and abetting by overseeing the drugs’ distribution, storage, and auditing compliance, and not taking any action.
When asked later by Judge Smith what the NFL did wrong, Sinclair affirmed that’s the theory of liability the players were putting forth.
Judge Tallman also questioned why the NFL—an unincorporated association of team members—should, for liability purposes, actually be considered a distinct entity apart from the teams.
“I’m suggesting piercing the corporate veil,” Tallman said in questioning counsel for the league, Pratik Shah with Akin Gump Strauss Hauer & Feld LLP in Washington.
“Really team owners are acting in concert and they’re motivated” to get players back on the field, Tallman said.
Shah responded that’s not what the players are pleading.
He also said, in response to Tallman’s question why the NFL couldn’t be complicit because it was in its best interest to keep the players playing as long as possible, that no evidence had been presented that the NFL violated any state or federal drug laws.
NFL Hall of Famer Richard Dent and other former players allege they were given drugs to keep them on the field and increase profits without regard to the 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 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 Ninth Circuit.
The panel was comprised of Tallman, Smith and Jay Bybee.
The case is Dent v. NFL, 9th Cir., No. 19-cv-16017, oral argument 3/12/20.