The NFL Drug Lawsuit: Another Black Eye For The League?

Last week nearly 500 former National Football League players sued the league, claiming that NFL team doctors routinely provided drugs to players for the purpose of allowing them to play through injuries, but failed to inform them that the drugs—most notably Toradol and Vioxx—could have serious and lifelong side effects. The former players contend that as a result that alleged non-disclosure, they have suffered permanent, debilitating injuries, most notably kidney failure. The lawsuit seeks class action status.

This marks the second major legal assault on the NFL’s past practices in addressing players’ injuries. Thousands of other ex-players have filed cases alleging that the league concealed the risk of head injuries for years, a non-disclosure which they say resulted in neurological disabilities ranging from depression to dementia to ALS (Lou Gehrig’s Disease).

Let’s break down this latest case and see where both sides may have strengths and weaknesses:

1. Will this case be a class action?

No. A class action would be much easier for the plaintiffs, because it would allow all of the factual and legal issues to be decided in one case. However, there are factual differences in (a) how each team handled drug administration; (b) the extent to which disclosures, if any, about side effects were made to the players; (c) the extent to which doctors’ disclosures were overseen by the various teams; and (d) the injuries that each former player has suffered and whether the injuries were caused by the drugs themselves. There are also differences in state laws governing the requirements for disclosures of the risks of the drugs as well as the retention of documentation of those risks. Since a class action cannot be “certified” by a court unless it finds that the factual and legal issues in a case are substantially identical between plaintiffs, and since there is not sufficient identity between those issues among these plaintiffs, I do not believe that this case will be certified as a class action.

2. What would be the effect of a denial of class action status?

A denial of class action status would mean that each former player would have to bring his own case and hire his own attorney. Because many attorneys love being involved in high-profile, sports-related cases, it shouldn’t be a problem for most of the plaintiffs to find good representation. However, some of the players with weaker medical evidence—who might have hopped onto the case in the hope of getting easy money—may have a more difficult time finding someone to take on their case.

3. If class action status is denied, would that mean that the cases would still not be consolidated?

Even though class action status is likely to be denied, it is still quite possible that the cases could be consolidated for trial on certain issues. Under federal rules of judicial procedure, a court may consolidate cases and determine factual issues that are common to all of the cases. In this instance it is possible that the federal court in San Francisco (where the case was filed) might first try the issue of whether the league was involved in directing team physicians to provide drugs to players without disclosure of side effects. If the trial of that issue results in a defense verdict, the case could proceed forward against the teams and the doctors, but not against the league, and in that event the plaintiffs would likely have to return their cases to the state in which the team is located.

4. How will the issues of disclosure (or non-disclosure) of the risk of the drugs given to the players affect the players’ chances of prevailing or being able to settle the case?

The players are claiming that team doctors did not inform them of the risks associated with the drugs that were given to them. The league and the teams will argue (a) that players were informed verbally on various occasions that the drugs could have side effects, though the side effects were described generally; and (b) even if they had not been aware of the side effects, players, understanding that their NFL careers and potential for further high-money contracts could be cut off without the drugs, would have preferred to get back on the field as soon as possible and risk the side effects.

5. How strong is the players’ claim that the side effects of the drugs were not disclosed to them?

The players would appear to have a very strong argument on this point. For one thing, it has long been known that team doctors have a conflict of interest between their loyalty to their employer—a duty that includes trying to keep players on the field—and their duty to keep the players both healthy and safe. As a result of this conflict, it is highly unlikely that the medical staffs would have secured signed consents from the players to administration of the drugs in question, which would in some states was a required procedure. Even where there were written records, they likely would have been disposed, as most of the claims relate back to the 1980s and early 1990s.

6. How likely is it that the cases will be settled?

I believe there is a very high likelihood that these cases will be settled within the next year. The league is already dealing with the rejection by a federal judge of the settlement of the concussion lawsuit on the grounds that insufficient funds were set aside to pay the claims. The uncertainty about this case—which could result in at least some of these cases going to trial—means that the league cannot afford the possibility of a trial of a second set of cases in which the teams and possibly the league could suffer through a public relations nightmare. Interest in youth football has already taken a hit in recent years and could be reduced further if very public trials exposing shady practices take place. The league cannot afford the risk of such exposure and thus has every reason to settle the cases as soon as practically possible.

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