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Patrick Hruby

Pain Blocker

Why a federal judge dismissed the NFL painkiller lawsuit

Vice Sports

On Wednesday, a federal judge dismissed a class-action lawsuit filed by 1,300 former players against the National Football League claiming that the league illegally supplied them with dangerous painkilling drugs that allowed them to play through injuries but resulted in addiction and harm.
What happened? What happens next? What does this potentially mean for professional football? Glad you asked:

So what was this lawsuit about?

Essentially, the former players—including former Chicago Bears standouts Richard Dent and Jim McMahon—accused team doctors working under NFL supervision of plying them with Vicodin, Celebrex, Novocain, and a host of other painkilling and anti-inflammatory drugs in order to keep them on the field so the league's ticket and television revenues would keep pouring in, side-effects and long-term health consequences for its hurting workforce be damned.

Sure, but everybody knows that football is a violent sport with a 100 percent injury rate, and that there wouldn't be a NFL without copious use of, um, anesthetic medication. Players themselves, like former Bears linebacker Brian Urlacher, admit this. Why sue over what amounts to standard operating procedure?

Simple. The original lawsuit claims that instead of prescribing and distributing medicines in a safe and ethical manner, team doctors "intentionally, recklessly and negligently created and maintained a culture of drug misuse, substituting players' health for profit."

How so?

The players make two primary arguments. First, team doctors baldly and badly mis-administered medications. Players were given huge quantities of addictive opioids over long periods of time. They were administered painkilling shots against Food and Drug Administration warning label recommendations. They were given amphetamines to get up for practices and games—great big bowls of uppers, placed in locker rooms like candy jars—and sedatives to come down at night. They were given drugs along with alcohol—a major medical no-no—and in dangerous "cocktail" combinations.

Second, the players argue that they didn't have informed consent. That no one from the NFL ever warned them about the possible and probable dangers of the above, and that team doctors often didn't even tell them what drugs they were being given. From the original suit:

… the named Plaintiffs all received the bulk of their pills not in bottles that came with directions as to use but rather in small manila envelopes that often had no directions or labeling. The player would receive the envelope and be told to take it …

And what were the results?

According to the players, predictable. And predictably bad. Dent says improper painkiller use allowed him to play eight weeks with a broken bone in his foot, an injury that resulted in permanent nerve damage. The suit claims former player and named plaintiff Jeremy Newberry "currently has Stage 3 renal failure and suffers from high blood pressure and violent headaches for which he cannot take any medications that might further deteriorate his already-weakened kidneys," all thanks to team-administered drugs. Like many NFL retirees, Dent and McMahon say they became addicted to painkillers. So does former player and name plaintiff J.D. Hill, who according to the suit:

... received hundreds, if not thousands, of pills from trainers and doctors, including but not limited to NSAIDs, Codeine, Valium and Librium. No one from the NFL ever talked to him about the side effects of the medications he was being given or cocktailing. He left the League addicted to painkillers, which he was forced to purchase on the streets to deal with his football-related pain, a path that led him to other street medications. He eventually became homeless and was in and out of 15 drug treatment centers for a period of over 20 years until overcoming his NFL-sponsored drug addiction …

Yikes. If true, wouldn't all of this be both unethical and illegal?

Yes. Willy-nilly performance-enabling drug dealing—and there's really no better way to describe it—by team doctors would violate both medical professional ethics and federal and state law. Not coincidentally, the Drug Enforcement Agency is currently investigating prescription drug handling in the NFL.

Okay, given the seriousness of the allegations here, why did a federal judge dismiss the case?

U.S. District Judge William Alsup didn't rule on the suit's allegations, nor any evidence supporting or refuting them. The question before him was purely procedural—specifically, did the players' claims belong in federal court, or did they belong in arbitration under the grievance process laid out in the collective bargaining agreement (CBA) between the NFL and its players' union?

Under federal labor law, CBA-related claims must first be adjudicated under whatever dispute resolution system employers and employee unions have mutually agreed upon. In his order, Alsup ruled that the former players' painkiller claims fall into this category.

Why?

A number of reasons. Most importantly, Alsup notes, league CBAs dating back to 1968 incorporate player "medical rights" and impose duties on teams to provide "medical care and information to players," including providing ambulances at games, having specific types of physicians on staff and permitting players to seek second opinions from non-team doctors.

As a result, Alsup writes:

… this is not a situation in which the NFL has stood by and done nothing. The union and the league have bargained extensively over the subject of player medical care for decades. While these protections do not specifically call out the prescribing of drugs and painkillers, they address more generally medical care, player health, and recovery time, and proper administration of drugs can reasonably be deemed to fall under these more general protections …

Wait. If the NFL's previous and current CBAs don't specifically cover the dispensing of painkillers and other drugs, then what's reasonable about saying that they somehow do?

Stop thinking like a regular person. Start thinking like a lawyer. In his order, Alsup doesn't argue that the league's CBAs necessarily cover the various legal arguments and theories made and floated by the former players, a laundry list of alleged painkiller wrongdoing that ranges from negligence to fraudulent concealment. Instead, he repeatedly points out that he or any other federal judge would have to examine and interpret those same bargaining agreements to suss things out, which means the players' cases should be preempted.

That logic sounds a bit circular.

It does. Welcome to the wonderful world of American jurisprudence!

Anything else?

In terms ofCatch 22-esque logic? You bet. About midway through his 22-page decision, Alsup argues that:

… notably, the league has expressly — in other contexts — taken on a duty of oversight of the clubs. For example, the league oversees the discipline of players and the CBAs have outlined the process by which the Commissioner can veto player contracts. Moreover, the 2011 CBA provided for league regulation of club off-season workouts and also provided for an NFLPA Medical Director that is to have "a critical role in advising the NFLPA on health and safety issues." In sum, the NFL and the union have bargained for ongoing league oversight in some areas — but have not done so in others.
Where health and safety are concerned, the CBAs have allocated specific responsibilities to the clubs — but not to the league. By implication, this is tantamount to an agreement that the league has no oversight responsibility on these subjects. It would be reasonable to place all responsibility at the club level, for that level is where the play-or-not- play decisions are made, where the medical records are kept, and where players have daily contact with doctors …

In other words: even though the CBA doesn't include specific painkiller rules, it probably still covers the use of the drugs; but when the same CBA fails to mention specific league responsibilities for overseeing drug use, that probably means the league has no responsibility in the first place. Because Harvard Law.

Oh, and please note that Alsup used the NFL's dictatorial new personal conduct policy as a supporting point to hammer the former players in federal court. For the league office, it's the gift that keeps on giving.

Okay. My head hurts. Those are legal arguments. What's the underlying, common sense rationale here?

In fairness to Alsup, it's actually quite reasonable. Over a period of decades, the NFLPA has had ample opportunity to sit down at the bargaining table and hash out better—or any—painkiller protections and regulations with the league. Thing is, the union hasn't bothered, instead leaving its members to pursue individual grievances against doctors and teams via arbitration.

Alsup doesn't see why that should change. He writes:

… in such a rough-and-tumble sport as professional football, player injuries loom as a serious and inevitable evil. Proper care of these injuries is likewise a paramount need. The main point of this order is that the league has addressed these serious concerns in a serious way — by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves. These benefits may not have been perfect but they have been uniform across all clubs and not left to the vagaries of state common law. They are backed up by the enforcement power of the union itself and the players' right to enforce these benefits …

Speaking of the NFLPA, were they a part of this case?

Tangentially. When Alsup asked for their input in November, a union lawyer argued that the specific painkiller claims in the lawsuit could not be grieved under the current or former CBAs.

How did the NFL respond?

By pointing out that the NFLPA itself filed an analogous CBA grievance in 2012 against the NFL's teams and management council over team doctors attempting to have players sign liability waivers for the use of Toradol, a powerful anti-inflammatory drug mentioned in the painkiller lawsuit.

Oops!

The NFL also noted that the NFLPA recently and successfully used a preemption defense—featuring much of the same legal logic the league was relying on in the painkiller case—against a group of former players suing the union over concussions.

Double oops! Hey, while we're talking about preemption and concussions, could Alsup's order have any impact on the pending NFL concussion settlement?

It could. The settlement currently is awaiting final approval from U.S. District Judge Anita Brody. A group of objecting former players has argued in court that the deal is unfair, unreasonable, and inadequate, designed to pay peanuts and possibly rigged, and that Brody shouldn't approve it without requiring that it better compensate a wider range of football-induced brain damage symptoms. (I've argued the same, albeit less politely.)

In response, both the NFL and the top player lawyers who negotiated the agreement have adopted a carrot-and-stick approach, insisting that the deal is generous while warning that any additional litigation will result in a complete and utter retiree wipeout. How so?

As with the painkiller lawsuit, the league's first major defense against the consolidated concussion cases was CBA preemption. However, the two sides agreed on a tentative deal before Brody could rule on sending some or all of the concussion suits to arbitration.

If the settlement falls apart, the threat of preemption will return. Alsup's ruling makes it even more serious. The NFL and top player lawyers alike can use it as a boogeyman. See? We told you that the league had a strong defense. Take the current deal. Maybe it sucks, but we're lucky to get anything. Don't end up like those painkiller guys.

On Wednesday, I asked three people close to the concussion cases for their quick, initial takes on Alsup's order. One said it likely wouldn't matter—while the painkiller suit revolves around team doctors allegedly committing what amounts to medical malpractice, the concussion suit is centered on a league-sponsored concussion committee that "promoted bogus science" asserting that players could safely do things like return to the same games in which they were concussed. A second said the order could lead players who have opted out of the concussion settlement—presumably to pursue individual cases, like the family of Junior Seau—to opt back in. A third said the painkiller ruling was "like Chernobyl for the concussion litigation," because it all but assures future NFL preemption victories.

Who's right? Too early to say. But not too early to assume that plenty of lawyers—for the league, for former players, for the insurance companies who will likely pick up most of the tab if the concussion settlement goes through—are studying Alsup's reasoning with great interest.

So what happens next with the painkiller suit?

Player lawyer Steve Silverman told the Associated Press that he planned to either file an amended complaint with Alsup—due December 30—or appeal his decision.

And if those don't work?

The former players will have to file individual grievances, each to be settled via arbitration.

In the painkiller suit, the retirees are asking for punitive damages, payment for medical care, an end to harmful NFL medical practices, and a league-funded drug testing and medical monitoring program designed to prevent addiction and diagnose injuries and disabilities arising from the use of medications. What are the odds they get any of those things through the grievance process?

On a case-by-case basis, payouts are possible. Mostly unlikely. But possible. Everything else? No chance. Ironically, they're all matters for future CBA negotiations—which won't take place for years, and never turn out particularly well for players.

So you're saying you don't have much faith in the union's bargaining abilities?

I'm saying that it took the NFLPA until 2011 to include a clause in the CBA stating that team doctors "must comply with all federal, state, and local requirements, including all ethical rules and standards established by any applicable government and/or other authority that regulates or governs the medical profession."

Wow. Requiring team doctors to follow the law and professional ethics seems like the absolute bare minimum. And it only took 40-plus years! What about the NFL? Doesn't it want to protect its valuable workforce?

Sure. I suppose. Provided said protection doesn't hurt the league's bottom line. As I've written before, if the NFL was serious about tackling its drug problem—and providing better medical care to its athletes, to boot—it would end the lucrative, conflict of interest-ridden practice of having doctors pay teams for the privilege of treating players; stop pushing extra playoff games and an 18-game season; increase roster sizes to better accommodate the reality of a 100 percent injury rate; structure contracts so players aren't financially incentivized to play through injuries in a way that causes long-term damage; discourage the use of addictive medication and provide more recovery resources to players who develop substance abuse problems; and generally treat its workforce like the valuable human assets they are, as opposed to a bunch of old Christmas toys to be broken and tossed in the back of a closet.

Of course, all of the above costs money, whereas drugging up players like racehorses so they can play through pain and injury makes money. Given a choice between the two, which option do you think the league—and, quite frankly, its union—is going to consistently choose?

Read the original article at Vice Sports