9th Circuit weighs ex-NFL players’ conspiracy claims

The revival of a billion-dollar conspiracy case against the NFL likely hinges on how quickly a 9th U.S. Circuit Court of Appeals panel believes players should have deduced their injuries were the result of an alleged scheme by the league.

Brought by a putative class of retired players who say they've faced significant health problems as a result of a decades-long conspiracy perpetrated by NFL leadership, the lawsuit alleges players were often improperly prescribed painkillers to get them quickly playing again. Evans et al. v. Arizona Cardinals Football Club LLC et al., 16-cv-01030 (N.D. Cal., filed March 1, 2016).

U.S. District Judge William Alsup narrowed the scope of the case significantly by tossing the players' Racketeer Influenced and Corrupt Organizations Act claims before ultimately dismissing it in July 2017.

While workers' compensation and collective bargaining "are not gold-plated remedies" to the "serious and inevitable evil" of injuries sustained during football, Alsup said, he found, "They are at least remedies recognized under the law." Any workers' compensation claims the players could have brought for remedy were time-barred by the lawsuit's filing.

Phillip Closius, a Baltimore-based litigator representing the players, argued before a 9th Circuit panel on Wednesday that his clients only became genuinely aware of the deceptive practices of the NFL, and the longterm impacts the medications had on their health, in March 2014. A similar filing around that time gave the players enough information to identify the league's fraud, he said.

Circuit Judge Mary H. Murguia appeared skeptical of the timeline, noting it just so happens to fall within the window necessary for bringing claims. She said players would've likely known about their injuries at the time they occurred, and questioned why they wouldn't have known to inquire whether the medicines they were subsequently prescribed weren't related to further health issues.

"It's not just about that," Closius said. "They weren't told about the side effects. They weren't told about the dangers of 'cocktailing,' or mixing the prescription drugs."

Even bottles of Tylenol are loaded with information about the drug and its potential dangers under mandate of state and federal law, Closius noted. But the addictive painkillers the players were allegedly given were often in unmarked bottles, without any indication of potential harm, he said.

The panel, comprised of Murguia and Circuit Judges Consuelo Callahan and N. Randy Smith, seemed inclined to believe that the governing test for bringing a RICO claim established by the Supreme Court precluded the bulk of the players' claims. Rotella v. Wood, 528 U.S. 549 (2000).

Smith entertained the notion that a 9th Circuit case cited by the plaintiffs might give them the grounds for reviving their RICO claims. That case allows for time extensions for otherwise statute-barred claims so long as the plaintiffs lack "actual or structural knowledge of" the fraud alleged. Living Designs Inc. v. Dupont De Nemours, 02-16947 (9th Cir. 2005).

Gregg H. Levy, a Covington & Burling LLP partner arguing for the defendants, said the case the plaintiffs referenced reinforced the precedent that it's the discovery of the injury, rather than the discovery of the alleged fraud, that triggers the statute of limitations.

"In the end, the case most closely aligned with this one is Rotella itself," Levy said. In it the U.S. Supreme Court found statutes of limitation for claims are triggered by injury rather than fraud.

Glen A. Rothstein, a sports and media attorney at Rothstein Law APC, said that while athletes might well know the difference between being "hurt" and being "injured," it's not a distinction courts are necessarily prepared to address.

While a player might know it's an injury taking him off the field and a prescription drug helping him get back on, Rothstein said the notion that players are only recently coming to understand the game's longterm impacts isn't far-fetched.

"The harsh reality remains that the NFL is obviously a big business, and the dirty truth is that most everyday players, apart from the most elite of the elite, know it's wise not to ask specific questions about their medical treatment for fear of being blackballed in the locker roomers," Rothstein alleged.