NFL Players’ Painkiller Class Action Gets Green Light

The NFL failed, for now, to shake off proposed class action claims by Hall of Famer Richard Dent and other retired players over the alleged distribution of drugs to keep them on the field, after the Northern District of California ruled that the league hasn’t shown federal labor law bars the claims.

The league unsuccessfully argued the Labor Management Relations Act preempts the players’ claims that the NFL voluntarily assumed a duty to ensure proper record keeping, administration, and distribution of medications, the court said, denying its motion to dismiss.

But the league isn’t foreclosed from raising the issue again after the parties have gone to discovery or a trial, the U.S. District Court for the Northern District of California said Feb. 19.

The court’s ruling was on remand from the U.S. Court of Appeals for the Ninth Circuit, which ordered the lower court to consider whether those “voluntary undertaking” claims were preempted.

The federal law preempts state law claims based on rights created by collective bargaining agreements and claims “substantially dependent on analysis” of a CBA. The proper administration and distribution of medications isn’t a subject the CBA explicitly covers, Judge William Alsup said.

The players therefore have a chance to prove their voluntary undertaking claim without reference to the CBA, such as through voluntary programs the NFL allegedly imposed on the individual clubs, the court said.

It will then be necessary to compare each alleged voluntary undertaking against the CBAs to determine “the extent to which interpretations of the CBAs are intertwined with the voluntary programs,” the court said.

In addition to Dent—a former Chicago Bears defensive star—the lead plaintiffs are ex-quarterback Jim McMahon, who won Super Bowls with the Bears and the Green Bay Packers, former Pro Bowler Marcellus Wiley, and a half-dozen other retired football pros.

The trial court initially dismissed the case in 2014, finding it preempted by the LMRA.

The Ninth Circuit reinstated 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 sufficiently involved in the prescribing practices to face liability.

The Ninth Circuit again partly reversed, reinstating the voluntary undertaking claims but dismissing claims that the league had a duty due to a “special relationship” with the players or that it was negligent per se absent a showing that the league—as opposed to the individual teams—provided direct medical care and treatment.

Silverman Thompson Slutkin White LLC, and Robbins Geller Rudman Dowd LLP represent the players. Skadden Arps Slate Meagher & Flom LLP, and Akin Gump Strauss Hauer Feld LLP represent the NFL.

The case is Dent v. Nat’l Football League, N.D. Cal., No. 14-02324, 2/19/21.