Toby Talbot/AP (Inset: Mark Cunningham/Getty Images)
Toby Talbot/AP (Inset: Mark Cunningham/Getty Images)

The Painkiller Problem

Eight retired players are suing the NFL claiming their painkiller addiction was the result of playing pro football. Do they have a case? Here, we break down possible defense strategies and explain why this could lead to marijuana use being condoned by the league

By Michael McCann

As the NFL tries to settle potentially billion-dollar litigation over the long-term neurological effects of concussions, the league has been hit with yet another major lawsuit: eight retired players, including Jim McMahon and Richard Dent, claim the league duped players into becoming addicted to painkillers. Attorneys for the players seek to transform the case into a class action on behalf of potentially thousands of other retired players. 

The lawsuit portrays the NFL and its teams as taking extraordinarily unethical steps to suppress players’ pain so they could remain on the field. According to the complaint, team doctors and trainers routinely prescribed medications without prescriptions and without warning players about the risk of addiction and side effects. These allegations, if true, would constitute criminal acts under the federal Controlled Substances Act. Other allegations suggest team physicians and trainers regularly ignored players’ medical histories and disregarded the possibility of fatal interactions due to unique body chemistry. 

Overall, the lawsuit depicts the NFL as a greedy enterprise which viewed players as disposable assets and treated them more like thoroughbreds than humans.

The painkiller litigation comes five months after U.S. District Judge Anita Brody rejected a proposed $765 million settlement between the NFL and retired players over concussions. Even if the NFL and retired players reach a new settlement over concussions and have it approved by Brody, some retired players likely would opt out of the settlement (as is their right) and file their own cases against the NFL. The NFL is likely to face player litigation for years to come.

NFL Legal Defenses

The league will answer the painkiller complaint in the coming weeks and ask that it be dismissed. As the litigation plays out, expect the league to offer at least six key defenses.

  1. Preemption

The NFL will argue that painkiller claims brought by the retired players are preempted by federal labor law. The league will insist that collective bargaining agreements between the NFL and NFLPA detail intricate rules for player health and internal grievance procedures for resolving questions about those rules. The NFL will assert that no court should hear a claim that players contractually assented must first be resolved through internal procedures.

The lawsuit depicts the NFL as a greedy enterprise which viewed players as disposable assets and treated them more like thoroughbreds than humans.

A preemption argument will be one of the NFL’s best defense tools. When unions and management agree to procedures to resolve disputes outside of the legal process, courts typically defer to those procedures. The NFL will stress that the league’s duty to players through team physicians and trainers is a matter of interpreting collective bargaining agreements, not applying torts and other areas of law.

To be sure, the NFL is not assured of victory by arguing preemption. The players have alleged fraudulent conduct by the NFL, and such conduct arguably is outside the scope of any collective bargaining agreement. Put another way, players and owners can’t agree to one side committing fraud on the other, and thus a fraud claim might fall beyond the reach of preemption.

Preemption is also a less certain defense for NFL activities that occurred between 1974 and 1977, and again between 1989 and 1993. During these years the league operated without a collective bargaining agreement. The NFLPA was also decertified between 1989 and 1993, meaning players did not negotiate policies with the NFL through a labor relationship. Although the NFL will stress that rules remained in place during periods without a collective bargaining agreement, watch for players to contend preemption does not apply during those periods.

  1. Blame the NFLPA

A related argument to preemption is that the players should place most of the legal blame on their union, not the NFL. Players entrusted the NFLPA with negotiating rules that impacted the diagnosis and treatment of their injuries, including rules for which painkillers could be used and under what circumstances painkillers could be prescribed. Along those lines, concern about NFL players overusing painkillers has been evident for years, without significant action by the NFL or—more importantly—the NFLPA. 

As the exclusive bargaining unit for NFL players, the NFLPA has a duty of fair representation, which compels it to negotiate in good faith and competently. A credible argument could be made that, until recent years, the NFLPA prioritized financial compensation over safety in negotiations with the NFL. From the NFL’s vantage point, the health and safety of NFL players is a subject of collective bargaining, and the NFLPA has the primary responsibility to advocate on behalf of those players.

  1. Unreliable evidence and unavailable witnesses

The eight players involved in the lawsuit collectively played from 1969 to 2008. In some cases it might be difficult to corroborate their claims through team records, medical files, letters and memoranda. Documents transmitted on paper rather than through electronic correspondence might no longer be available. Without actual proof, allegations the league illegally dispensed painkillers might remain just that: allegations.

The fact that many of the allegations concern events occurring decades ago also invites questions about memory and recollection. Witnesses who attempt to recall events from decades back often struggle when cross-examined by lawyers, as those witnesses might easily confuse facts or fail to recall crucial details. Will retired players be so sure about their memories of playing days while under oath and subject to the penalty of perjury? 

The plaintiffs must also contend with the unavailability of doctors and trainers implicated by the lawsuit. Many of those health care professionals likely have retired or passed away. It could prove challenging, and in some cases impossible, for players’ attorneys to depose individuals who are crucial to the case.

  1. Lack of causation and assumption of risk
J.D. Hill played seven seasons as a wide receiver for the Bills in the 1970s. (NFL Photos/AP)
J.D. Hill played seven seasons as a wide receiver for the Bills in the 1970s. (NFL Photos/AP)

A causal link between physical harm and painkillers might not be easily proven. Take allegations by J.D. Hill, one of the eight named plaintiffs. The complaint assigns blame on the NFL for Hill becoming addicted to painkillers, which eventually led to him suffering a weakened immune system, developing an abscess in his lung and becoming homeless. Hill’s account is genuinely tragic, but the NFL will likely argue that the league is not to blame. The league will first stress it acted reasonably. The league will also assert that even if it acted unreasonably, Hill’s harms are too attenuated from any wrongful conduct by the NFL. Other life events and personal choices, the NFL surely will contend, broke any causal nexus between the league and Hill.

The league is also poised to frame players as voluntarily using painkillers and thus providing consent. While the complaint argues NFL players—who unlike many other pro athletes play on non-guaranteed contracts— were aggressively pressured to play hurt, the NFL could reason that players ultimately made the decision to use painkillers. Along those lines, players could have at any point ended their NFL careers and pursued another line of employment. In their complaint, the plaintiffs anticipate this argument by asserting the NFL created and maintained a “culture of drug abuse.” The culture, the players contend, denied players a meaningful choice by denying them the necessary information to provide informed consent.

  1. Team doctors and trainers were independent contractors, not team employees

The employment status of NFL team physicians and trainers has varied over the years and by team, and has been a key issue in malpractice cases against team physicians. Some physicians and trainers have been employees of the team, while others have been independent contractors. Employers generally have higher legal exposure to the wrongful acts of employees than those of independent contractors. Watch for the NFL to argue that the league is less responsible for the actions of physicians and trainers who were independent contractors. Retired players, however, can respond by asserting that teams should not be able to delegate responsibilities of care to physicians and trainers merely through employment classification. 

  1. Statute of limitations have expired

The NFL will argue that the retired players’ claims are barred by the relevant statutes of limitation. The statute of limitations is a legal device designed to ensure that claims be brought in a timely manner and before evidence and witnesses become unavailable. The players allege theories of negligence and fraud. These types of claims are generally available only for a handful of years following the negligent or fraudulent act. This might prove problematic for the eight named players, as most of their allegations concern events occurring prior to 2000, in some cases well before 2000.

In their complaint, the players recognize the NFL will cite the statute of limitations as a ground for dismissal. The players demand the statute of limitations be tolled (extended) on grounds the players were not warned and had no reason to know they were suffering harm by using painkillers.

Possibility of settlement

In the short-term, the NFL will deny the merits of the claim and try to convince a court to dismiss the lawsuit. But as NFL concussion litigation shows, the league may eventually conclude that settlement is a better strategy than litigation. The NFL is aware that fans, media and members of Congress are closely watching player safety lawsuits. There has been increasing concern in recent years that football is too dangerous and that outside intervention of some form may be warranted. Public perception is thus an important consideration for the NFL as it develops a legal strategy. Indeed, even though NFL attorneys believe lawsuits over player health are unlikely to prevail in court, those lawsuits could play out over years in a high-profile manner.

Marijuana use is legal in two NFL cities—Denver and Seattle—but it's use is prohibited for players, even for medical purposes. (Ed Andrieski/AP)
Recreational marijuana is legal in two NFL cities—Denver and Seattle—but the league prohibits its use for players, even for medical purposes. (Ed Andrieski/AP)

Consider some of the possible ramifications of lengthy and public litigations for the NFL. Pretrial discovery, which would involve players’ lawyers deposing league executives and team owners under oath and obtaining records from them, could unveil unflattering facts about the league and its owners. Pretrial discovery could also lead to NFL owners having to reveal closely-guarded financial information. Worse yet, should any of the player safety lawsuits go to trial, league officials would have to uncomfortably watch retired players and families tell jurors about the pain they’ve suffered. To avert these risks, the league might seek out a settlement with attorneys in the painkiller litigation, just as they have done in the concussion litigation.

An opening for marijuana?

The painkiller lawsuit raises serious questions about the health risks of painkillers commonly prescribed to NFL players. Both Robert Klemko (for The MMQB) and I (for SI.com) have written about the impact of marijuana legalization on the NFL. While the health benefits of marijuana remain a divisive topic, its gradual legalization raises the possibility that marijuana might eventually become a viable alternative to suppress pain. As one prominent NFL agent told me, “What is the alternative to marijuana? The alternative sucks. Think about what players take for pain—they take much more serious and much more addictive drugs. Vicodin. Percocet. Oxycodone. These are highly addictive and synthetically manufactured drugs. … They can rip up your insides. I would much rather my guys take natural, less addictive stuff.”

Michael McCann is a legal analyst and writer for Sports Illustrated and SI.com. He is also the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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52 comments
Buck2185
Buck2185

The loud motuhted punk, Richard Sherman, eats a bowl of adderral every morning for breakfast, and apparently that is OK...

sjq294
sjq294

Is marijuana a PED? I don't think so. Why is NFL testing for it?

theboneman21
theboneman21

A lot of it is perception. Imagine a player at a function and some kids see him standing around puffing because his knee is sore ?

I am sure Goodell is not opposed to it as a person but as commissioner he has to think about controls.

sam93505
sam93505

if anybody thinks that smoking weed is "performance enhancing", they obviously have never used it. because it's going to be legal across the country soon, the NFL needs to re-evaulate why they are keeping it as a banned substance (other than they don't want them to be "bad" role models... just like Ray Lewis!)... give me a break.

alloverfatman
alloverfatman

As a retired physician, I can answer your question: "As one prominent NFL agent told me, “What is the alternative to marijuana?"


The alternative is to use properly extracted hemp oil, which can legally contain over 25% CBD, the aspect of the cannabis plant that contains many (if not most) of the benefits of that form of medicine. Since the higher the CBD, the lower the THC, these extracts generally have only 1 to 3% THC - not enough to provide a high (which occurs when THC fits into the C-1 receptor and gets you 'high'). CBD, properly extracted, fits the C-2 receptor, is a C-1 receptor antagonist, doesn't get you high but has substantial medical properties.  

JimKirkwood1
JimKirkwood1

" the lawsuit depicts the NFL as a greedy enterprise..." 


I'm shocked. SHOCKED !!!!


Beyond that, I always appreciate Mr. McCann's ability to present legalities in terms that a layperson can understand

likedoohan
likedoohan

The NFL doesn't have to approve use of cannabis, it can simply stop drug-testing for it.

Mulva
Mulva

So the NFL would rather have players take amphetamines for pain rather than marijuana?


It's time for the NFL to catch up with the times and be on the RIGHT side of history for a change.


It seems like the NFL is more concerned about a player deriving pleasure from using marijuana than admitting it as a bona fide, approved drug used to effectively treat pain.

RobertoMagnifico
RobertoMagnifico

Please tell me you're kidding about marijuana use being approved in the NFL.

If it is, can you imagine the lawsuit in 20 years when today's players are cancer-stricken, have cardio-pulmonary disease or a host of other ailments related to its use?


Guille
Guille

They would have been treated better if they were thoroughbreds.  The value of a stallion or mare is their ability to breed additional winners. 

BigSchtick
BigSchtick

So the players are given pain killers that take away the pain.  They now complain that playing through pain free injuries are a basis for a lawsuit.

The problem here is that young athletes, young people in general, think they are bullet proof. To come back in your 50's and 60's and try to make more money off the same game that they CHOSE to play is ridiculous.

KristianColasacco
KristianColasacco

@Buck2185 That's completely off the topic and also, you're an idiot. If Richard Sherman tests positive for Adderral then he'd get the same punishment that any other player does when they test positive for the drug.  

theboneman21
theboneman21

Semantically speaking it is; if a person suffers from anxiety and it relieves it then guess what? That goes for ANY substance one consumes

Mike D2
Mike D2

@sam93505 The league stands by guys who beat women and start brawls in strip clubs...but Josh Gordon misses an entire season for marijuana. Absolutely idiotic.

Whatever
Whatever

@alloverfatman Thank you for that response. I think the last thing any professional sports league needs is its players being able to use marijuana whenever they feel like it because they complain of pain. If they're in that much pain, then maybe they shouldn't play.

Whatever
Whatever

@JimKirkwood1 And the players weren't greedy? They didn't want to keep their lucrative contracts intact and keep playing football rather than drive a cab? Notice the lawsuit mentions nothing about the "tough guy" attitude that ruled the NFL years ago and is still prevalent today, although it is lessening. And that was promulgated by the players.

Whatever
Whatever

@Mulva And there is very little evidence that marijuana actually helps reduce pain. It's going to need significantly more study, targeting specifically pain-reducing aspects of marijuana and how it works being ingested, smoked, etc., vs. other drugs, hemp oil, etc.

liquidmuse3
liquidmuse3

@Mulva  In my opinion, the only reason the NFL kept marijuana "illegal" is to garner favour with the corn-bred middle class rough & tumble conservatives, i.e. most of America for the longest time. Now that we're out of the scare-tactic dark ages, hopefully the NFL will see that prohibiting something as relatively harmless as marijuana is actually a public relations (& bottom line) no-no. You think Cleveland fans are happy about what's happening with Josh Gordon?

Mike D2
Mike D2

@RobertoMagnifico Roberto, you seriously need to educate yourself on marijuana...not only do you not have to smoke, but it's prescribed to cancer patients today (some of which prefer using a vaporizer, which eliminates the risks associated with smoking it). It is safer than drinking alcohol or smokng cigarettes, not to mention the highly addictive painkillers which destroy peeople's lives. Get a clue.

eddie767
eddie767

If there's one thing all scientist agree about, the bud doesn't cause cancer. They don't know why, but are looking for financing to do the research. Here's one test they won't have problems finding willing testers.

rskins09
rskins09

@RobertoMagnifico   And their  IQ drops at least  eight  points ....See what they did do me when I smoked pot---  I can't remember my name ...Who did I play for, I forgot ..duh ..

liquidmuse3
liquidmuse3

@RobertoMagnifico  Please do me a favour & cite all the cancer caused by marijuana. I'll wait. I have a feeling I'll be here a while.

adoseofdoby
adoseofdoby

@RobertoMagnifico  How old are you? 70? 80? Get a grip man. You'd rather see these guys drown their bloodstreams with a slew of powerful and addicting chemicals rather than use a NATURAL substance? To me, that's just ridiculous, so either A.) You're delusional. B.) You're a marijuana advocacy troll.

CMFJ
CMFJ

As with similar arguments made for concussions, it misses the critical issue that the NFL either did not inform (painkillers) or misinformed (concussions) players about risks. The basis of your argument is that players knew the risk, but it does not seem reasonable that most NFL players had te medical knowledge to understand the risks of taking the painkillers. Your point that people of that age feel invulnerable makes this even worse from a medical ethics standpoint. Essentially, taking advantage of someone's circumstance or inclinations is not considered medically ethical. Last, even if players are magically imbued with medical knowledge upon entering the NFL, prescribers/dispensers of prescription drugs need a) to write a prescription and b) ask if the patient wants to be informed.

Buck2185
Buck2185

@KristianColasacco @Buck2185  I think he tested positive the night he did the interview with Erin Andrews. A non-positive, rational human being would not have acted that way....

Whatever
Whatever

@Mike D2 @sam93505 Josh Gordon is on his second drug violation. And the NFL does NOT stand by guys who beat women and start brawls, the NFL disciplines them. The difference is the agreed-upon penalties between the NFLPA and NFL for PED and drug use violations and for other forms of behavior like criminal activities.

jdburns
jdburns

@Whatever @alloverfatman Really? The very last thing any professional sports league needs?


You might want to take a deep breath and reevaluate your priorities.

jdburns
jdburns

@Whatever @JimKirkwood1 You really consider professional football players to be greedy... for wanting to be professional football players instead of cab drivers? And the men who play this brutal sport are tough as well? What scumbags.


What are you even talking about?

Whatever
Whatever

@liquidmuse3 That's the dumbest thing written today. The NFL lists marijuana as an illegal substance BECAUSE IT IS ILLEGAL FEDERALLY (except in 2 states). Even in medical marijuana states there are specific restrictions for its use. Plus, these players play in a variety of states, so they would be able to smoke one week but not the next? And you really think a player would abide by that?

Besides the legality of it, the NFL really doesn't want players who could be high out on the field. That creates a HUGE liability risk for the league and the teams, and it just can't happen. It would be like letting heavy machinery operators use marijuana whenever they had a headache, even if they came to work high. Stupid.

Mike D2
Mike D2

@RobertoMagnifico Also, study after study h ave shown it doesn't cause cancer...there is no link to it ever proven. You are spouting off ignorant comments without doing any research. You seem to have gotten your education on marijuana from the 1950's and "Reffer Madness" 

Whatever
Whatever

@eddie767 I seriously doubt "all scientists" agree that smoking marijuana doesn't cause cancer. You can't get "all scientists" to agree on gravity or the sun.

Mike D2
Mike D2

@rskins09 @RobertoMagnifico You are not even making sense...and people using marijuana have been studied for years, if you knew that you would know that your claim about their "IQ dropping" makes you sound like a low-IQ suffering imbecile. I'll trust the medical professionals who have actually studied the impacts over your drivel.

RobertoMagnifico
RobertoMagnifico

@adoseofdoby @RobertoMagnifico  Neither. And where do you get the notion I'd "rather see these guys drown their bloodstreams with a slew of powerful and addicting chemicals"?

Nowhere in my post do I even remotely refer to such nonsense.


Guess you're seeing things that aren't there.


alloverfatman
alloverfatman

@CMFJ As of 2010, the league was still insisting that playing football could not engender any risk of lingering brain trauma. Suggesting that the league has been providing full disclosure on any aspect of healthcare is absurd. 

JimKirkwood1
JimKirkwood1

@CMFJ It is also possible that management was not aware of the risks

BigSchtick
BigSchtick

@CMFJ I would not confuse the concussion issue with this latest folly.

Nobody put a gun to these players heads. It didn't take a genius to understand that pain is the bodies way of saying, hey there is a problem here. Masking the pain doesn't change the underlying issue. They all had access to their own personal doctors if they ever had a real concern. They fought through it with killers either for the love of the game, commitment to the team, or afraid of losing their job. They could have always said no and dealt with the other consequences.

This is a money grab, plain and simple.

Joe79
Joe79

Mike D2 is an idiot and a dirtbag liar.

jdburns
jdburns

@Whatever @liquidmuse3 You are hilariously ignorant about football, marijuana, the law, medicine, and pretty much every other topic you touch upon.


Keep up the good work.

Joe79
Joe79

Stop lying Mike D2.

RobertoMagnifico
RobertoMagnifico

@Mike D2 @RobertoMagnifico  Dude, if you want to smoke go ahead. None of my business.

But 25 years from now when you're diagnosed with cancer do you really want to sit there wondering whether the lifestyle choices you made as a younger person led to your current situation?


As for research, see above post. 

Whatever
Whatever

@Mike D2 @rskins09 @RobertoMagnifico The real problem is how fat linemen would be once they started smoking marijuana, making pot brownies, and hitting Taco Bell at 2 a.m.

Remember, nothing good happens after midnight.

eddie767
eddie767

No, you have to process it. With marijuana, it's pick and smoke. But I get what you're saying.

Whatever
Whatever

@alloverfatman @CMFJ The NFL absolutely and intentionally hid what it knew about concussions. But the claims about painkillers are very different. There's no real allegation that the NFL hid from players the potential side effects of painkillers, plus each team had its own doctors, some as employees, some as independent contractors. Some players saw multiple doctors over the years.

Also, the players completely ignore the NFL Tough Guy Syndrome, which was particularly strong back when Van Horne and McMahon played. They used to brag that their kicker (Butler) hit like a linebacker. I could very easily see that the players begged for something for the pain so they could get back on the field, and even today we have players hiding symptoms and pain from doctors so they won't be forced out of a game or so they can come back from injury sooner.

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