The National Football League could raise pre-emption and personal responsibility defenses to a lawsuit filed by at least 500 former players, who allege permanent injuries and addiction from routine use of painkillers and opioids, but the NFL also could try to settle the suit as it has in concussion-related litigation.
High-profile players — including Super Bowl XX champion Chicago Bears Richard Dent, Keith Van Horne and Jim McMahon — filed the suit last week in San Francisco federal court seeking compensatory and punitive damages for what they allege was decades of inappropriate prescribing of painkillers by NFL team doctors to keep them on the field.
The lawsuit seeks class action status for hundreds of former players, who also seek medical monitoring as a result of the “cocktailing” of drugs they allege left them with long-term health problems.
Sports law experts say the NFL likely will defend itself by arguing that players assumed the risk of deciding whether to take opioids such as Vicodin, Percocet and other medications used to lessen their pain following injuries.
Additionally, experts say the NFL could argue that tort claims related to prescription drugs should be handled under collective bargaining agreements, which include workers compensation rules, between the league and players.
“Nevertheless, some of the named plaintiffs ... played at least part of their careers during a point in time in which the players were not unionized, making the pre-emption argument a challenging one for the NFL,” said Marc Edelman, a law professor at the Zicklin School of Business at Baruch College in New York.
Similar to last year's NFL massive concussion suit that still is in the process of being settled, the NFL likely will need to decide whether to settle the latest suit to avoid a messy public battle with players in ill health, experts say.
“The NFL clearly is a challenging place to work right now, and they're going to have to assess the value to them of another fight,” said Michael Gilleran, executive director of the Institute of Sports Law and Ethics at Santa Clara University in Santa Clara, California.
“One could argue the fact that the NFL has proposed a settlement to the concussion litigation would indicate a somewhat greater likelihood that the NFL would settle this litigation as well,” Mr. Edelman said.
Dr. Matthew J. Matava, president of the NFL Physicians Society, said he is “surprised” by the prescription drug lawsuit.
“As an NFL team doctor for the past 14 years, I have seen firsthand the outstanding medical care that team doctors provide to players on and off the field,” Dr. Matava said in a statement provided to Business Insurance by the NFL. “I will leave it to others to respond to the specific allegations of the lawsuit, but as doctors we put our players first.”
The NFL did not comment on how it insures risks such as the prescription and concussion lawsuits. The NFL uses Marsh L.L.C. as one of its insurance brokers.
Neither plaintiffs attorneys nor the NFL Players Association, the union representing NFL players, responded to requests for comment.
Plaintiffs who played in the NFL between 1969 and 2008 say they were routinely provided with opioids such as Vicodin, sleep aids such as Ambien, injections of the nonsteroidal anti-inflammatory drug Toradol, corticosteroids such as Prednisone and other drugs.
In turn, the players allege “cocktailing” such medications for a long period of time left them with long-term health problems such as kidney failure, drug addiction and ongoing pain caused by playing an increasingly busy NFL football schedule while using medications to mask injuries.
“Rather than allowing players the opportunity to rest and heal, the NFL has illegally and unethically substituted pain medications for proper health care to keep the NFL's tsunami of dollars flowing,” according to the suit. Mr. Van Horne “played an entire season on a broken leg,” according to the suit. “He was not told about the broken leg for five years, during which time he was fed a constant diet of pills.”
Some NFL players have received California workers comp benefits for health problems they suffered from taking medications, said Michael Pang, managing partner of the sports law practice group at Adelson, Testan, Brundo, Novell & Jimenez in Santa Ana, California.
There have been “cases where they've blamed prescription medications for liver and kidney function loss, and the doctors agreed in that particular situation that the medications contributed to that person's condition,” Mr. Pang said. But he also said it's often difficult for players to prove causation for such claims.
The prescription drug suit follows last year's suit against the NFL by more than 4,500 former players who allege long-term health damage from concussions they suffered on the field. The NFL and players are still working on a proposed $765 million settlement, which a federal judge said is too little to properly cover player health claims.
Sources say the concussion suit likely inspired more players to sue the NFL for their health problems.
Players also could be seeking to be compensated for their injuries after California passed a bill last year limiting workers comp benefits for out-of-state professional athletes, said Zachary Sacks, managing partner of Culver City, California-based law firm Sacks & Zolonz L.L.P.
“My hunch is as (workers comp) has been contracted somewhat in California ... then other avenues are being sought and investigated to compensate these players for workplace injuries,” he said.