NFL Painkiller Lawsuit Appealed to Ninth Circuit

On February 23, 2018, former NFL players filed an appellate brief with the U.S. Ninth Circuit Court of Appeals, in which the players argued that their suit against all 32 NFL teams should not have been dismissed on the grounds that it was time-barred. According to the players, they became aware in early 2014 that NFL teams recklessly administered painkillers, which prematurely ended their professional playing careers and contributed to their diminished post-career prospects. According to their brief, the district court’s decision should be vacated because the court prematurely decided that the former NFL players should have known that they were injured earlier than they pled they did.

As we have previously reported, Federal District Court Judge William Alsup rejected the players Racketeer Influenced and Corrupt Organizations Act (RICO) claims, finding they were untimely and unsupported by facts. According to his February 3, 2017 ruling, the players failed to demonstrate that NFL teams conducted an enterprise through racketeering activity that caused the injury to the players business or property. Judge Alsup dismissed the RICO claim as time-barred, ruling that the players “had enough information to warrant an investigation which, if reasonably diligent, would have led to discovery of the injury.” The players “had, at minimum, constructive knowledge of the alleged injury to their post-NFL prospects” because they “knew or should have known ‘the critical facts that [they had] been hurt or who [had] inflicted the injury’ over a decade prior to [the] action.”

At the lower court, the NFL teams argued that the RICO claim was barred because the statue did not permit claims for physical injuries and “[t]he Supreme Court has squarely held that the four-year limitation [starts] running as soon as a plaintiff knows of an injury.” The NFL teams further argued that the “business injury,” the end of the professional playing career, “occurred, and was unquestionably known, more than a decade before [the] complaint was filed.” In response, the players argued that their claimed “business injury” was not “solely based on the ending of their NFL careers,” but also sought “redress for their post-NFL career economic injuries, including loss of employment, diminished earnings, and loss of employment opportunities sustained as a result of [teams] fraudulent scheme.” Because the players argued that there business injury occurred after their playing careers, they therefore did not know of their financial injury until years later, and economic injuries are cognizable under the RICO statute.

According to the players, the NFL teams conspired to hide a “return to play” business plan that encouraged doctors and trainers to pump players with powerful pain killers, anti-inflammatories, and sleep aids, to get players back on the field despite their injuries. All the while, team doctors/trainers did not tell the players what they were receiving; they misstated the effects of the medications; and, did not discuss the drugs long-term effects.

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