9th Circuit revives retired NFL players’ suit over drugs

A lawsuit brought by retired football players alleging the league negligently provided them with unprescribed drugs earned a fresh set of downs with a 9th U.S. Circuit Court of Appeals panel on Thursday that reversed a district court's dismissal on preemption grounds. Dent v. NFL, 2018 DJDAR 8983 (9th Cir. Sept. 6, 2018).

The putative class of players alleges the National Football League distributed controlled substances and prescription drugs to players in order to keep them playing. The players say the haphazard administration of the drugs -- sometimes in unmarked envelopes with no information on side effects or what the drugs were -- left them with permanent injuries and chronic medical conditions.

In 2014, U.S. District Judge William Alsup of San Francisco agreed with the NFL that the players' claims, brought under state and federal laws, arose from medical care provisions in their collective bargaining agreement. Thus, the suit was preempted by Section 301 of the Labor Management Relations Act, and it was subsequently dismissed.

In a unanimous decision, a 9th Circuit panel disagreed, writing that asserting the players' claims can be done without interpreting the agreement, and are not preempted.

"Carelessness in the handling of dangerous substances is both illegal and morally blameworthy, given the risk of injury it entails," wrote Judge Richard C. Tallman. "Imposing liability on those involved in improper prescription-drug distribution will prevent harm by encouraging responsible entities to ensure that drugs are administered safely."

"Merely consulting an agreement [...] does not constitute 'interpretation' of the agreement for preemption purposes," he wrote.

The panel also included 9th Circuit Judges Jay S. Bybee and N. Randy Smith.

Alsup had written that the preemption arose from the fact that the NFL's agreement with the players' union includes provisions that lay out a standard of care for medical aid provided by teams, so evaluating the players' claims requires interpretation of the agreement.

The appellate panel disagreed, finding the state and federal law claims constitute violations of a general standard of care required by law regardless of separate standards established in the agreement.

"No examination of the CBAs is necessary to determine that distributing controlled substances is an activity that gives rise to a duty of care. The NFL has a duty to avoid creating unreasonable risks of harm when distributing controlled substances that is completely independent of the CBAs," Tallman wrote.

According to Colin P. Calvert of Fisher & Phillips LLP, the appellate panel got it right with a plain reading of the Labor Management Relations Act.

"Where it is a little tricky is with the language about medical care," he said. "It needs to be a right that exists because of the CBA. The court does a good job of laying that out. Section 301 is going to preempt if the right you're vindicating was created by the CBA and that right has to depend on interpreting the CBA."

Calvert also noted the opinion's application is relatively narrow because the facts of the case are virtually unique to professional sports, where medical care is provided and regulated by the employer.

"I think the 9th Circuit has the right read on Section 301 and are interpreting it in a way that makes sense and doesn't expend the scope with a common sense reading of the statute," he added.

Phillip J. Closius, a professor at The University of Baltimore School of Law, argued on behalf of the class, which includes Hall of Fame defensive end Richard Dent, retired player turned broadcaster Marcellus Wiley, and other notable figures. He did not respond to a request for comment.

Paul D. Clement of Kirkland & Ellis LLP argued on behalf of the NFL's legal team, which declined to comment.