Seven former NFL players received a skeptical reception Dec. 19 by a federal appeals court on their claims that several teams gave players pain medications at the expense of their long-term health and then concealed the scheme.

The players say NFL clubs fraudulently concealed their violation of federal drug laws in dispensing painkillers to them to keep them on the field despite nagging injuries. The class claims share a common theme with sports concussion litigation alleging the National Football League hid the long-term brain risks of repetitive head injuries in football.

The three-judge panel of the U.S. Court of Appeals for the Ninth Circuit during oral arguments didn’t seem convinced that the players’ class claims were filed within the four-year filing period typically required for civil claims under the federal Racketeer Influenced and Corrupt Organizations Act.

“If they knew they were forced back onto the field too early, why isn’t that constructive notice of an injury?,” Judge N. Randy Smith asked during oral arguments in San Francisco.

Fraud Claims

Phillip Closius, who represented six retired players and Etopia Evans, the widow of Minnesota Vikings and Baltimore Ravens player Charles Evans, argued that the players’ initial physical injuries weren’t the events that triggered RICO’s statute of limitations. He is with the law firm Silverman Thompson Slutkin in Baltimore.

The operative injury to each player occurred when they became aware of the allegedly fraudulent scheme by NFL teams to dispense pain medications without proper precautions, Closius said.

That fraud wasn’t discovered until 2014, when similar claims in another case were filed, rendering the players’ RICO claims timely, he said.

Closius referred to a would-be class action, Dent v. Nat’l. Football League, resurrected by the Ninth Circuit in September when it ruled NFL collective bargaining agreements didn’t necessarily preempt players’ stay-in-the-game drug claims against the league.

But it was far from clear the three-judge panel saw this appeal the same way. The judges repeatedly questioned how the players weren’t on notice of their claims when they knew about their game-related injuries, knew they received drugs from team physicians and trainers, and knew they were forced to retire early because of injuries that didn’t heal.

“That’s kind of a duh,” Judge Consuelo Maria Callahan said. “They know they have a risk of injury.”

Due Diligence?

The judges also peppered Closius with questions about whether the players took affirmative steps to investigate their claims, such as getting a second opinion from a physician about the safety of the medications team doctors and trainers gave them.

That theme was amplified by Gregg Levy who argued for the NFL teams that “there are no allegations of due diligence to discover their claims and that is fatal to their case.” Levy is with Covington & Burling LLP in Washington.

Levy also noted that the players had notice of their injuries at least five years ago when they filed workers’ compensation claims for their injuries.

A decision on the appeal isn’t expected for several months.

Judges Mary H. Murguia, Callahan, and Smith heard arguments in the appeal.

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

Skadden Arps Slate Meagher & Flom, as well as Covington & Burling and Akin Gump Strauss Hauer Feld represented the NFL clubs.

The case is Evans v. Arizona Cardinals, 9th Cir., No. 17-16693, oral argument 12/19/18.