NFL Drug Lawsuit & Concussion Not Similar
05.26.14
While the allegations in the recent drug lawsuit against the NFL, Richard Dent, et al. v. NFL reinforce the perspective of the NFL as a big, bad organization who cares little for the health and well-being of their employees, the lawsuit does not quite match-up to the onslaught of arrows that the concussion lawsuits brought.
One of the basic tenets of the concussion litigation is that the NFL knew about the long-term danger of repetitive concussions and hid or even obscured that knowledge from the players. Keeping the players and their families in the dark was only possible because the information regarding long-term repercussions from concussions had not been widely known by the general public. But along came the concussion litigation and fueled by the popularity of the NFL and the public’s love of a good coverup, the seriousness of bell-ringers is now well known. Similarly, the drug lawsuit contends that the NFL concealed the “dangers of addiction and other health risks” associated with the myriad of drugs they would hand out and shoot up to keep players on the field. It’s a little less likely that the players didn’t already know that ingesting massive quantities of painkillers which was good for masking their pain on game day, might lead to addiction or permanent organ damage down the road. In the lawsuit, the former players do claim all kinds of serious complications stemming from the alleged abuse of standard medical protocol within the NFL when dispensing medication. Heart attacks, kidney failure, lung damage, drug addiction and homelessness are some of the examples listed in the filing.
The concussion lawsuits incorporate a fantastic element of fraud thanks to the 1994 formation and workings of former NFL Commissioner Paul Tagliabue’s Mild Traumatic Brain Injury committee. Often regarded as a brilliant risk attorney, who prior to the NFL was a partner at the same law firm, Covington & Burling, that brainstormed the tobacco industry’s notorious science panels, Tagliabue’s creation might have been one of the cracks that led to the NFL’s surprisingly quick $1B offer (with legal fees) to settle the case. That brain injury committee was headed by the handpicked, but under-qualified rheumatologist Elliot Pellman, the former N.Y. Jets team doctor who has since the inception of the concussion lawsuits taken several years of media humiliation and abuse. Fortunately for Pellman, the NFL still employs him and apparently still values his opinion in regard to brain injuries. Perhaps keeping Pellman employed was a better lawyer move than hiring him in the first place. Ironically, the decision to remove Pellman from the MTBI committee (technically, he resigned ), but keep him on the NFL payroll was possibly made by Jeff Pash, Tagliabue’s protege at Covington & Burling and later the NFL. The drug lawsuit doesn’t seem to have such a similar league-formed committee – a coordinated effort which served to dispute scientific and medical information that didn’t fit the league’s practices.
Because of a lack of an NFL created entity such as the MTBI committee, the drug lawsuit has to go a little further to explain why this is an NFL lawsuit and not a series of team lawsuits, or malpractice lawsuits aimed at specific team doctors. The lawsuit quotes Jeff Pash about painkiller abuse:
” Painkiller use . . . is something that needs to be addressed on a broad basis, not just in the NFL, and it is something our doctors are looking at” (emphasis added).” ~ Jeff Pash, NFL Executive Vice-President and General Counsel
Seems possible that the “emphasis added” to the above quote within the legal filing was put there to show that Pash takes ownership of the team doctors on behalf of the NFL, a specific legal relationship that the NFL will probably deny in any subsequent legal filing. The contractual relationship among the team medical staffs and the individual teams varies. Another factor would be liability. Are team doctors protected from individual player lawsuits by the CBA? Or by language in some other contract? Seems like if team doctors were not somehow indemnified by the team or the league, we would see more lawsuits filed by former players against individual doctors.Supposedly, some hospital groups and their associated physicians pay the teams over $1M per year to work for teams and advertise themselves as the “official” team medical staff.
“The halo effect is huge,” Lew Lyon, vice president of the Ravens-affiliated MedStar Sports Medicine, tells me. “Friends will call me and say, ‘Can you get me into see one of the Ravens docs?’ And they’re very accessible. They have private practice like other physicians.” ~ from Walk it Off Champ, by Sam Eifling for Slate.com
Although the two lawsuits differ, there are allegations in the drug lawsuit that are pretty horrific. The freewheeling nature of how pain-killing drugs were obtained by the teams and dispensed to the players is startling. For instance, former Bears offensive tackle Keith Van Horne once put the team on the DEA’s radar by going to a private doctor and receiving a prescription for Percodan.
The problem was that the Bears ordered painkillers before the season started under players’ names, including Van Horne’s. Van Horne had thus put Caito (Chicago Bears’ Head Trainer Fred Caito) in a bad spot by obtaining the Percodan because there were already DEA records that hundreds of painkillers had been ordered in Van Horne’s name, even though Van Horne had no need for the medications the Bears had ordered at the time the order was placed.
Former Bears players Jim McMahon and Richard Dent claim “amphetamines were available in jars in the locker room for any and all to take.” Only after the deaths of Don Rodgers and Len Bias were the jars removed, though NFL doctors and trainers still gave players amphetamines whenever they wanted.
Former Saints’ Director of Security, Geoffrey Santini, a 31-year veteran Supervisory Special Agent with the FBI resigned from the team after being “directed to engage in and/or overlook” improper distribution of painkillers in violation of Federal and state law.
The lawsuit alleges all kinds of inappropriate and possibly illegal behavior by teams – providing medication without receiving informed consent of the patient, willfully concealing the addiction and health risks associated with medications freely distributed by the team and violating state laws governing the acquisition, storage and dispensation of controlled substances.
It will be interesting to see if the NFL drug litigation follows a similar path to the NFL concussion litigation.
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