Wednesday, November 5, 2014

Painkillers Lawsuit Not Easing the NFL's Pain

On May 20, 2014, former NFL player Richard Dent, along with several other former players, filed a class action complaint in Northern California District Court against the National Football League.[1] The complaint alleged that the NFL “intentionally, recklessly, and negligently created and maintained a culture of drug misuse, putting profit in place of players' health.”

The former players argued that the NFL had substituted pain medication for proper health care. Specifically, the plaintiffs claim that the NFL administered painkillers without prescriptions or regard to the players’ medical history, risk of potential allergic reactions, or long-term consequences. Also, the players assert that they were supplied various painkillers without giving informed consent, and that they were encouraged to take the painkillers to play through injury. The damages sought include pecuniary and compensatory damages, as well as costs and attorney fees. The class is said to include all former NFL players who played between 1969 and 2008.

There are two key issues in the case. First, the court must determine whether the NFL intentionally, recklessly or negligently created and maintained a culture of drug misuse that prioritized profit over players’ health. Initially, the players will have to show that there was, in fact, a culture of drug misuse in the NFL between 1969 and 2008. Next, a court must decide whether such a culture was caused by the action (or inaction) of the NFL, or if it was caused by a general American culture of drug misuse. Also, if the players voluntarily accepted the drugs and treatment, this raises issues as to how much fault can be attributed to the NFL.

The second major issue is whether the case can actually be brought before the court. Under the NFL’s collective bargaining agreement (“CBA”), disputes between the NFL and players (including former players) must be resolved in binding arbitration. If the court concludes that the CBA applies, then the case will be dismissed. But, if the players can argue that this type of case falls outside the CBA, they might be able to avoid dismissal.

The NFL is currently trying to get the case dismissed with two main arguments. First, the NFL says that the players union is responsible for looking out for the players. Accordingly, the union should address the issue. Second, the NFL claims that the individual clubs, and not the league, are responsible for the medical care of players.

Only in recent years has society grown conscious of the long-term health concerns surrounding NFL players. In the last few years, the NFL has been dealing with a lawsuit against it concerning a lack of concussion safety protocols that lead to many players suffering long-term mental health problems. That concussion lawsuit has only recently settled and now the NFL is facing yet another major and potentially damaging lawsuit. This painkillers lawsuit seems to have taken a back seat to the recent media coverage of players’ off the field incidents. However, if this lawsuit moves forward, it could lead to even more bad publicity for the NFL and several more years of costly litigation. If indeed the allegations in this case are true, then the NFL has a lot to answer for and it could lead to major changes in how game of football is played.

-Justin Davis, Staff Editor

[1] Amended Complaint and Demand for Jury Trial Class Action, Dent v. Nat’l Football League, No. 4:14-cv-02324-KAW, 2014 WL 2925313 (N.D.Cal.).