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NFL Drug Ruling Also Boosts Player Concussion Claims (1)

Sept. 6, 2018, 6:26 PMUpdated: Sept. 6, 2018, 7:26 PM

Professional football and hockey players pursuing concussion suits against their employers got a big boost Sept. 6 when a federal appeals court revived a would-be class action alleging the NFL supplied players with stay-in-the-game drugs.

The National Football League and National Hockey League both contend collective bargaining agreements bar tort suits by former players. But the new ruling by the U.S. Court of Appeals for the Ninth Circuit punches a hole in that argument, sports lawyers told Bloomberg Law.

“The Ninth Circuit’s decision delivers a striking blow to the NFL’s go-to preemption defense,” said plaintiffs’ lawyer Paul Anderson, of the Klamann Law Firm in Kansas City, Mo.

“The court found that the NFL cannot continue to hide behind the CBAs when the players’ common-law rights have been violated,” said Anderson, who blogs about NFL concussion litigation.

Neither counsel for the NFL nor the NHL could be immediately reached for comment about the ruling’s impact on the concussion litigation.

Not So Intertwined

The three-judge panel held Richard Dent and other former players can proceed with claims alleging the league’s administration of painkillers and other drugs were given at the expense of their long-term health.

Dent, a hall of fame defensive end who played for the Chicago Bears and other teams from 1983 to 1997, claims he received “hundreds, if not thousands, of injections from doctors and pills from trainers” and now suffers from an enlarged heart and nerve damage.

The ruling, which held the players’ collective bargaining agreements didn’t bar the claims, came on the eve of the 2018-19 NFL season, and overturned a trial judge’s dismissal of the case.

Negligence and fraud claims against the league aren’t so intertwined with collective bargaining agreements between pro football and its players that they are barred by the federal Labor Management Relations Act, the three-judge panel said.

The federal law restricts state-law claims that are substantially dependent upon the terms of a collective bargaining agreement.

The proposed class could include more than 1,000 retired NFL players who argue the league is liable for their latent internal injuries and drug addictions over 43 years of collective competition.

NHL Cases Up Next

The NHL may be the first to grapple with the ruling’s impact on professional athletes’ concussion claims.

That league is facing hundreds of concussion-related tort suits in consolidated litigation in the U.S. District Court for the District on Minnesota.

U.S. District Judge Susan Nelson, who is overseeing the litigation, denied class status to the players July 13. But she hasn’t yet ruled on collective bargaining issues. The case is In re Nat’l Hockey League Players’ Concussion Injury Litig., D. Minn., 14-md-02251, filed 8/19/14.

Anderson, the plaintiffs’ lawyer, said he expects the new ruling “will be highly persuasive to other courts currently grappling with this preemption issue, and I suspect it will move the needle in favor of the retired players.”

Ninth Circuit Judge Richard Tallman wrote the opinion, joined by Judges Jay S. Bybee and N. Randy Smith.

Silverman Thompson Slutkin & White, as well as Robbins Geller Rudman & Dowd LLP represented the plaintiffs.

Kirkland & Ellis LLP, as well as Skadden, Arps, Slate, Meagher & Flom, LLP, and Akin Gump Strauss Hauer & Feld LLP represented the NFL.

The case is Dent v. Nat’l Football League, 9th Cir., No. 15-15143, 9/6/18

(Updated with case information for NHL suit)

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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