NFL Hall of Famer Richard Dent and other retired players saw the Ninth Circuit revive their painkiller suit against the league this month, but they have a long way to go to prove their case.
Sports attorneys tracking the litigation say the Aug. 7 victory for the players only places them back in the litigation’s early stages. The appeals court ordered Judge William Alsup in San Francisco to once again rule on whether players’ labor union contracts bar the case from going forward.
Alsup has twice before dismissed the players’ suit, once because of the Labor Management Relations Act. This time around he must address whether a “voluntary undertaking” claim reinstated by the U.S. Court of Appeals for the Ninth Circuit is preempted by the collective bargaining agreements.
The odds are stacked against the players, most litigators and legal observers tell Bloomberg Law. And even if they do eventually get past Alsup on the NFL’s defense, still more appeals and—in the event their claim does actually clear this significant initial hurdle—many more filings and challenges, are expected.
“At first glance it does seem like a win for the players,” said Andrew Brandt, executive director of the Moorad Center for Sports Law at Villanova University’s School of Law in Pennsylvania.
“But a deeper understanding would suggest the momentum is not in the players’ favor given that the case has been dismissed by the district court—where it is being sent once again—twice,” Brandt said.
Consequently, Brandt and others say, the players should expect a prolonged and difficult battle to prove the league should be liable for allegedly putting profits ahead of safety by negligently overseeing the administration of large amounts of painkillers to put injured players back in the game.
“I hope some of the players will live long enough to have their day in court,” said Gregg Clifton, a management-side sports law attorney with Jackson Lewis PC in Phoenix.
But, he added, “the league has every right to fight it.”
And that’s exactly what the NFL is expected to do.
“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.
“We will address the remaining claim and are confident that it will similarly be found without merit,” he said.
In addition to Dent, the lead plaintiffs are ex-quarterback Jim McMahon, who won Super Bowls with the Chicago Bears and the Green Bay Packers, former Pro Bowler Marcellus Wiley, and a half dozen other retired football pros.
Alsup initially threw the case out in 2014, finding it preempted.
But the Ninth Circuit resurrected the litigation in 2018, saying the LMRA didn’t bar the players’ negligence and fraud claims related to the NFL’s alleged violation of federal and state laws governing controlled substances.
Alsup, on remand, dismissed the suit again, this time ruling the league itself wasn’t directly involved enough in the prescribing of drugs to face liability.
Two weeks ago, the Ninth Circuit again reversed in part. The appeals court affirmed the dismissal of two claims but reinstated a third—the voluntary undertaking claim.
In doing so, it called the amended suit “striking” for its “painstaking recitation of injuries sustained by plaintiffs and the medications they recall receiving.”
Still More Appeals Ahead
The San Francisco-based appeals court is sure to see the suit again, even if just on the issue of preemption.
“I expect whichever party loses on remand will appeal,” said Clifton. “We might also see the loser seek a writ to the Supreme Court,” he said.
Brandt agreed the players should expect to spend a lot of time in the years ahead meeting with attorneys.
He previously worked as an NFL player representative and served as vice president of the Green Bay Packers from 1999 to 2008.
CBA preemption, said Brandt, “is a strong defense and one that ultimately caused the settlement of the NFL concussion litigation.”
“The question is whether the CBA provisions on health and safety would cover this painkiller aftermath issue,” Brandt said.
“My sense is that it would, but the players will certainly argue that basic health and safety provisions do not cover deleterious health consequences due to overprescription of painkillers,” he said.
Perhaps previewing the NFL players’ opposing argument, Craig Mitnick, who helped represent thousands of players in concussion litigation, disagrees about the breadth of the CBA provisions.
He also views the players’ eventual chances of success much more favorably.
“In the concussion litigation, the league used the CBAs as a defense and the players settled as a result,” Mitnick, of Mitnick Law Office PC in Haddonfield, N.J., said. But, he said, “the league always hides behind CBAs.”
“Nothing in the CBA,” however, “has anything to do with the mismanagement of drugs,” Mitnick said.
The players also have the benefit of an appeals court ruling inclined toward their claim.
“If the Dent ruling had been issued before the concussion litigation, the players in the concussion litigation would have ended up with a far better settlement,” he said.
The Court of Public Opinion
Duke University Law School Professor Paul Haagen said that, regardless of how the preemption and other legal issues play out, the league should also be concerned about the reputational costs of the litigation.
This “may be very significant to the NFL,” said Haagen, co-director of the university’s Center for Sports Law and Policy.
“The facts related to the terrible, extensive injuries suffered by the players—and of the massive doses of pain masking drugs that they were given to permit them to continue playing in spite of their injuries—are, as the Ninth Circuit noted, grim and unsettling,” Haagen said.
“This is the kind of case that the NFL could win in a court of law and lose badly in the court of public opinion,” he said.
The league’s image has suffered as the scale of players’ concussion injuries has become publicly known. It also has taken flak from both Black Lives Matter and President Donald Trump over its handling of player protests of discrimination and violence against Black Americans.
The case is Dent v. Nat’l Football League, 9th Cir., No. 19-16017, 8/7/20.