Federal judge William Alsup of the Northern District of California has denied the NFL teams’ motion to dismiss a class action lawsuit filed by more than 1,500 former players against the teams. Alsup also previously dismissed a similar lawsuit filed by group of ex-NFL players, lead by former Bears DL Richard Dent, against the NFL. The appeal of that case is currently pending.
What is this Case About?
A group of 13 named plaintiffs, representing over 1,500 former NFL players, alleges that the 32 NFL teams (the League is not a defendant), starting in the 1960s, improperly provided players with painkillers, anti-inflammatories, and sleep aids in an effort to quickly return players to the game, rather than allow them to rest and heal from football-related injuries.
Specifically, the lawsuit alleges that:
- The teams maintained a “return-to-play culture” that concealed health risks associated with these medications.
- Team doctors and trainers did not disclose adequate or accurate information about the side effects and health consequences of the drugs.
- Team doctors and trainers provided medications without a prescription and without properly documenting the administration of the medications.
- Former player Steven Loften remembers that “drugs were being given out like M and M’s, the candy. On the plane home from away games, a doctor would walk down the aisle, take pills from zip-lock bags and hand them to the players.”
- The team’s distribution of these drugs violated the law.
What are the Teams Arguing?
The teams asked to court to dismiss the lawsuit based on two grounds:
First, the teams claimed that, because collective bargaining agreements trump common law duties (such as negligence), the players do not have a claim because collective bargaining agreements were present throughout the duration of the allegations (this is the reason that the Dent lawsuit was dismissed).
Second, the teams argued that the relevant three-year statute of limitations bars the players’ claims because none of the plaintiffs played in the NFL after 2010 and the lawsuit was not filed until 2015.
What Did the Court Rule?
Judge Alsup held that Plaintiffs’ allegations fall under the “illegality exception” to the rule that collective bargaining agreements trump common law causes of action. The “illegality exception” provides that parties to a CBA cannot contract for or immunize illegal conduct. Since the plaintiffs’ allegations are that the teams violated state statutes by improperly distributing drugs, the CBA could not have validly sanctioned this conduct. Thus, the claims are not preempted by the CBA and the teams’ first argument fails.
Second, Judge Alsup found that “it is not possible to say as a matter of law on this record that the statute of limitations categorically bars plaintiffs’ claims.” The three-year statute of limitations for the alleged injuries begins when a plaintiff ascertains, or should have ascertained, the nature and cause of the injury. The Judge found it possible that some of the injuries were “slow in developing” and may not have been ascertained until recently, preventing a finding that all of the claims are barred by the statute of limitations. He did leave the door open to dismiss all or some of the claims based on statute of limitations grounds at a later stage of litigation.
The class action – after 15 months of briefing and two different federal courts – is past its first major hurdle. Now comes the discovery and class certification phases of the case, which will be expensive and long. Similar to what we saw in the NFL concussion litigation, there is a possibility that the parties could pursue a settlement, which would allow the teams to avoid having to turn over potentially troubling documents, and participate in depositions, during discovery. The case has been referred to court ordered mediation, but neither party has indicated their willingness to settle at this stage.
The players face a high bar of proving that the teams intentionally misrepresented the drugs’ health risks and/or participated in a civil conspiracy. They also most show that the injuries were discovered within the last three years, which could drastically reduce the number of recoverable damages.
Trial is scheduled for October 2017.