NFL hurting from new litigation by former players over painkillers
Published 13 June 2014
By: Joseph M. Hanna
insists that the actions by team doctors and trainers were illegal because team medical personnel never obtained prescriptions, failed to keep drug records, and didn’t explain the side effects of the pills that they handed out freely.
Several of the high-profile named plaintiffs include three members of the 1985 Super Bowl Champion Chicago Bears, defensive end Richard Dent, offensive lineman Keith Van Horne, and quarterback Jim McMahon. McMahon says that his playing injuries included a broken neck and ankle. However, instead of being diagnosed, removed from play, and treated, McMahon says he was given medication and pushed back into the game. This steady diet of pills made him an addict – McMahon recalls that at one point in his career he was taking over 100 Percocet painkillers every month. Van Horne made similar allegations, recalling how he played an entire season with a broken leg by relying on a steady supply of painkillers. Not only that, Van Horne states that he wasn’t informed of the injury for five whole years.
J.D. Hill, a former wide receiver for the Buffalo Bills and Detroit Lions and another named plaintiff in the suit, states that the drugs he received
while playing in the NFL destroyed his life. He noted
, “As a player, you get all of these drugs for free over the years of your career. Then suddenly you are released and the free supply stops overnight.
Hill eventually turned to street drugs and became homeless due to his addiction, bouncing in and out of rehab centers for the next 20 years. He went on to comment, “I was provided uppers, downers, painkillers, you name it while in the NFL . . . . Never took a drug in my life, and I became a junkie in the NFL.
To date over 500 former players have joined the class action, making it the second giant class action against the league in recent years, following the concussion lawsuit
The complaint is seeking unspecified financial damages, and an injunction creating a NFL-funded testing and monitoring program to prevent players from becoming addicted to painkillers.
Elsewhere the NFL is still trying to wrap up settlement talks in the concussion litigation brought against it by 4,500+ former players
individuals who claim that the league intentionally downplayed the risks of concussive head injuries and their relation to long-term cognitive decline. Several of the plaintiffs in the painkiller suit (including 6 of the 8 lead plaintiffs) are also parties in the concussion action.
The concussion litigation has striking similarities to the painkiller litigation. Both are proceeding under essentially the same theory (albeit with a slightly different focus) that the NFL failed to warn and/or downplayed the risks of head injuries and/or the use of painkilling drugs, and that the failure caused the players to suffer long-term health problems.
Both suits face huge hurdles in the causation department. Because the plaintiffs are numerous, their symptoms are varied, and the injuries could have occurred at any point throughout their playing career, it will be difficult (perhaps impossible) for players to definitively show that their ailments specifically resulted from concussions and or NFL-assisted narcotics abuse.
The painkiller suit will almost certainly face a motion to dismiss by the NFL, who will one suspects argue that the issue should be resolved through alternative dispute resolution rather than in Federal Court. Under the terms of the NFL’s collective bargaining agreement7
, most player-related grievances, including issues related to player health, are to be resolved in arbitration, not litigation.
Another issue that could affect the plaintiff’s chance of recovery is the fact that players will have a hard time feigning ignorance to the negative effects of narcotics use. While it might be easy for an NFL alumni to insist that he wasn’t knowledgeable on neuroscience and the latent effects of concussive blows, it will tougher to say that these players were completely unaware of the dangers of abusing narcotics – a well-known and publicized addiction issue. In that case, the doctrine of assumption of risk could come into play to reduce any potential recovery and weaken the plaintiffs’ suit from the get go.
In the mean time, the NFL should expect to see the filing of ‘copycat’ suits alleging illegal painkiller distribution and associated failure to warn claims brought by additional NFL alumni in other jurisdictions. Down the road, any such suits will likely be consolidated into a single multi-district litigation so that the painkiller issue can be dealt with much like the concussion action. One thing is for sure – the NFL will have its legal hands full for years.
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Joseph Hanna is a partner of Goldberg Segalla and concentrates his practice in commercial litigation with a focus on sports and entertainment law and retail, hospitality, and development litigation. Joe represents sports franchises, professional athletes, and movie studios with various issues related to licensing, contracts, and day-to-day management. He serves as Chair of Goldberg Segalla’s Sports and Entertainment Law Practice Group and editor of the firm’s Sports and Entertainment Law Insider blog. In addition, Joe is the Chair of Goldberg Segalla's Diversity Task Force. He possesses an AV rating from Martindale-Hubbell.