By Jeff Birren, Senior Writer
In 2014, ten former NFL players sued the NFL, alleged multiple torts based on allegations that the NFL improperly administered painkilling medication to the players as part of “the NFL’s ‘return to play’ business plan.” Twice, the District Court granted the NFL’s motion to dismiss and twice the Ninth Circuit reversed the dismissal. This occurred most recently in August 2020 when the Circuit reversed the dismissal of one negligence cause of action. (See, SLA Vol. 17, Iss. 17, “Richard Dent v. NFL: The Ninth Circuit Revives a Single Dismissed Claim” (9-11-20)). The case was remanded to District Court Judge William Alsup and the NFL filed another motion to dismiss that claim. This time, the NFL’s motion was denied (Dent et al v. NFL, No C 14-02324 WHA (N.D. Cal. 2-19-21) at 2, (“Dent”).
The reader may recall that the U.S. District Court handling the NFL-concussion cases did not rule on the NFL’s motion to dismiss but pressured the parties to settle the cases. The putative Dent class action soon followed. The named plaintiffs played for various NFL teams between 1969 and 2008 (Id.). The NFL’s first Collective Bargaining Agreement (CBA) was entered in 1968 and although it was between the individual clubs and the NFL Players’ Association, the Ninth Circuit “held that the pre-2011 CBAs were nevertheless binding on the NFL” (Id., FN 2). A similar case had been brought against the individual clubs but not the NFL andthat also been assigned to Judge Alsup. He dismissed some if it and granted summary judgment as to the rest (SLA, “Court Dismisses Claims Brought by Ex-NFL Players in Pain Medication Litigation” (3-17-2017)). The Ninth Circuit affirmed Judge Alsup in 2018.
The Dent plaintiffs claimed to have “sustained various injuries” as a result of the alleged NFL’s “return to play” plan. The plaintiffs asserted that the NFL, as opposed to the clubs and club physicians, came up with a plan to “dull” the injured players “pain so that they could be returned to the filed (sic) as quickly as possible without allowing for proper healing time” (Dent at 3). In August 2020, the Ninth Circuit affirmed the dismissal of two of the plaintiffs’ negligence theories but revived the claim based on a supposed “voluntary undertaking” by the NFL.
After the case returned to the District Court, the NFL moved to dismiss the surviving claim (Dent Doc. #145 (11-25-2)). The NFL asserted that the “voluntary undertaking theory is a reincarnation of the theory deemed preempted by the 2014 order (i.e., that the NFL failed to curb the clubs’ health abuses), and thus should be deemed preempted” (by federal labor law) because the claim is “substantially dependent on and would require interpretation of the many CBAs’ health and safety provisions to determine whether it acted negligently” (Id.). Following “full briefing” and oral argument on February 17, 2021 (Doc. #153), the Court issued its “Order on Motion to Dismiss” just two days later (Dent at 2).
The Court’s “Analysis”
The opinion is seven and a half pages, but the analysis section is but five paragraphs. The Court began by stating that there was “some ambiguity” in the Circuit’s “instruction” that the District Court should “examine afresh whether the NFL’s general disclaimer of liability for individual players’ medical treatment is relevant” to the “allegations of the organization’s inaction” in order “to keep marquee players in the game and maximize television revenues” and the NFL’s claim of preemption (Id. at 7). The disclaimer was in the 2011 CBA and stated that “nothing in the 2011 CBA should ‘be deemed to impose any duty or obligation upon either the [NFL] of the NFLPA regarding diagnosis, medical care and/or treatment of any player.’” However, the NFL “does not rely on this disclaimer for purposes of its present motion” and that disclaimer was not in prior CBAs. Therefore, “at this stage of the litigation, the general disclaimer is irrelevant” (Id. at 7).
The Court “considered the applicable CBAs” and denied the NFL’s motion without prejudice “to raising all the preemption points again on summary judgment or at trial” (Id.). The NFL argued that the “core injuries” complained of, that is, a premature “return to play” policy was “an issue the CBAs cover” but other injuries, “such as the long-term side effects of over-administration of prescription medications” was also implicated. This was not an issue “the CBAs explicitly cover.” The plaintiffs insisted that they could “prove the voluntary undertaking claim without reference to the CBAs” including the “voluntary programs” the NFL imposed on the individual clubs. The Court believed that “there will need to be a matching of each such undertaking against the CBAs to assess the extent to which interpretations of the CBAs are intertwined with the voluntary programs” (Id.).
The Court noted that another problem will be to determine if the voluntary “undertaking itself was negligently carried out, as opposed to whether the NFL failed to intervene and stop the clubs’ alleged abuses of controlled substances” after the NFL received “information to that effect.” The plaintiffs claimed that the NFL audits showed or should have shown “that the clubs were supplying copious amounts of painkillers to players” (Id. at 7/8). If the theory is that the audits were negligently conducted, “then little or no interpretation of any CBA will be required” (Id. at 8). However, if the “audits showed rampant misuse of painkillers by the clubs and the NFL’s failure to intervene constituted negligence,” then the Court would “need to look at what the NFL committed to do on that subject in the CBAs” and whether any of the CBAs required interpretation. Though at the hearing, “the NFL’s counsel was unable to identify a single provision of any CBA that was ambiguous and needed ‘interpretation’” (Id.).
The Court stated that the case “has been to the court of appeals twice and the NFL has failed to win affirmance of prior dismissals. Rather than a third dismissal and overindulgence in judicial notice,” the best path forward would be to create “a more complete and true history if we proceed to trial and/or summary judgment.” With that, the Court “DENIED WITHOUT PREJUDICE” the motion to dismiss.
The NFL answered the Third Amended Complaint on March 19, 2021 (Dent Doc. # 160), just two months shy of the seven-year anniversary of the filing of the initial complaint. The parties will now begin serious discovery. It is ironic that the information about what medications were administered to any of the plaintiffs will likely not come from defendant NFL, but the individual clubs or the clubs’ physicians. Plaintiffs’ counsel will need to remember that they have been “warned” by the Circuit “not to ‘conflate’ action by the club doctors and trainers with those of the NFL” as they are “limited to claims arising from the NFL and NFL personnel” and not the clubs (Id. at 4).
Furthermore, much of the potential evidence will have been lost due to passage of time, and many of the clubs’ doctors and trainers will have shuffled off this mortal coil, and many that do remain will have little remaining memory of the specific events at issue, proving the reason to have meaningful statutes of limitations. It will also be interesting to see if this alleged “return to play business plan” exists outside of the imagination.