A federal judge from the Northern District of California has throttled a claim brought by former NFL players and their families, which alleges that the NFL teams conspired to keep players on the field by giving them up with pain-killing drugs, even though they allegedly knew the practice was having a detrimental effect on their health.
Specifically, the court dismissed the conspiracy claim as untimely and unsupported by facts. It also rejected the players’ Racketeer Influenced and Corrupt Organizations Act (RICO) claim, which had been added in an emended complaint, finding that it, too, was untimely and unsupported by facts. But the court did allow the fraud and concealment claims to continue against eight NFL teams.
The lead plaintiff in the case, which was filed in May 2015, was Etopia Evans, widow of the late Charles “Chuck” Evans, who played for the Minnesota Vikings and Baltimore Ravens. She and the other plaintiffs alleged that, beginning in 1964, NFL team doctors and trainers handed out un-prescribed pills and administered injections so that players could return to play.
In an amended complaint, the plaintiffs alleged deceit, reliance, and proximate causation to support their intentional misrepresentation and concealment claims. The clubs countered in their motion to dismiss that the claims were unsupported by facts.
“Two facets of plaintiffs’ theory underlying their intentional misrepresentation and concealment claims,” wrote the court, “merit further discussion.
“First, the plaintiffs’ counsel at oral argument defined the alleged ‘misrepresentation’ as failing to inform players that club trainers violated the Controlled Substances Act (CSA) by giving them medications. Even assuming counsel is correct as to that legal conclusion, however, his suggestion that the plaintiffs suffered all their alleged injuries because no one told them their trainers were technically violating the CSA strains credulity. It is also unsupported by the amended complaint, which alleges in support of the plaintiffs’ RICO claim that the clubs violated the CSA, but does not specifically mention any omission of trainers’ technical violations of the CSA within the context of plaintiffs’ intentional misrepresentation or concealment claims.
“Second, the amended complaint can also be construed as alleging intentional misrepresentation and concealment beyond the medical risks, side effects, and proper usage of medications. Specifically, the amended complaint alleges the clubs represented they cared about and prioritized players’ health and safety but, in various ways, drove players to return to play at the cost of their health or safety. For example, ‘The clubs continuously and systematically misrepresented to [plaintiffs] the dangers of playing while the pain of injuries was masked by the medications, including the risk of further and permanent damage to affected body parts.’ The plaintiffs were ‘not counseled that inadequate rest will result in permanent harm to joints and muscles.’ Doctors and trainers downplayed the seriousness of plaintiffs’ injuries to ‘get [them] to return to play sooner.’ And club personnel did not inform players about the drugs used, including potential contraindications or adverse consequences of usage (e.g., id. at 94—95), because the players would otherwise not have used the offered medications the way they did.”
In support of this subtler theory of intentional misrepresentation and concealment, the plaintiffs presented specific allegations that “(1) the 32 clubs represented that they care about and prioritize players’ health and safety, and (2) that the plaintiffs believed such representations.”
The clubs countered that he plaintiffs took medications to return to play simply “because they felt extreme pressure [from] fear of losing their jobs.” Thus, they contend that the plaintiffs “did not rely on any alleged misrepresentation by the clubs in doing so. This reasoning is dubious since, insofar as players were motivated by the desire to keep their jobs, they would presumably avoid playing with injuries masked by drugs if they knew that they risked sustaining career-ending injuries by doing so. And, in any case, a player’s fear of being cut would not categorically rule out a further belief that, when push came to shove, their clubs, doctors and trainers would not ‘put them at risk of substantial and continuing future injuries.’
“The next question,” the court wrote, “is whether any clubs acted contrary to their representations by driving players to return to play at the cost of their health or safety?”
On this point, the court agreed that the plaintiff had identified situations where the Lions, Raiders, Broncos, Packers, Seahawks, Dolphins, Chargers, and Vikings “drove certain plaintiffs to return to play at the cost of their health or safety, contrary to the clubs’ representations that they would prioritize the latter. The amended complaint therefore pleads claims of intentional misrepresentation and concealment as to those specific clubs and plaintiffs with particularity.
“As to the other clubs, however, the amended complaint contains only general or conclusory allegations, or allegations insufficient to plead intentional misrepresentation or concealment under any theory with the particularity required” under the Federal Rules of Civil Procedure.
Similarly, the conspiracy claim fell well short of the mark.
“To be clear, the ‘conspiracy’ the plaintiffs need to prove up is not merely that the clubs collectively make up the NFL,” wrote the court. “Agreeing to form the NFL does not translate to further agreeing to subordinate plaintiffs’ health and safety to returning them to play at all costs. The amended complaint contains no well-pled allegations of any conspiracy between clubs regarding the latter.”
As for the RICO claims, the court found that the plaintiffs failed to demonstrate that the teams conducted an enterprise through racketeering activity, which caused the injury to the players’ business or property. Further, it rejected the players’ contention that latent physical injuries harmed their business or property, a necessary condition for a RICO claim. Amending the complaint as to the RICO claim would be “futile,” thus the court dismissed that claim with prejudice.
Etopia Evans et al., v. Arizona Cardinals et al.; N.D. Cal.; No. C 16-01030 WHA; 2/3/17
Attorneys of Record: (for plaintiffs) William Sinclair with Silverman Thompson Slutkin White in Baltimore. (for defendants) Jack DiCanio with Skadden Arps Slate Meagher & Flom in Palo Alto.