Three years ago, hundreds of retired NFL players, including former Bears Super Bowl-winning quarterback Jim McMahon and his 1985 Bears teammate Richard Dent, filed a class-action lawsuit in San Francisco federal court that alleged the league illegally provided powerful prescription drugs to players to keep them on the field, without informing the players of potentially dangerous long-term health risks.
At the same time that lawsuit – Dent v. National Football League – was filed, sources told the Daily News in 2014 that the Drug Enforcement Administration had launched an investigation into prescription medication abuse in NFL locker rooms.
Now the $ 14 billion NFL is trying to avoid a legal and law enforcement blitz on several fronts, including the latest salvo fired by the Players Association: a non-injury grievance filed last week against the league and the 32 teams which makes similar accusations regarding prescription drug abuse, while also alleging violations of the collective bargaining agreement (CBA).
In a letter to the NFL labor department dated April 28, NFLPA general counsel Tom DePaso cites the second amended complaint filed in the Evans, et al v. Arizona Cardinals case – a federal lawsuit filed by hundreds of active/current NFL players – as one of the supporting documents for the union to file its grievance. DePaso also confirms in the letter the existence of the ongoing DEA criminal investigation, when he gives the reasoning behind the NFLPA’s decision to file a grievance. Three sources confirmed to The News that the DEA probe is still ongoing.
“Upon review of the sworn testimony, emails and other admissions by NFL personnel, as well as other information concerning prescription and administration of painkillers, the involvement of the Drug Enforcement Administration in a criminal investigation, and the treatment of NFL players contained in the (Evans) complaint, the NFLPA became aware that since the adoption of the CBA on August 4, 2011, the NFL and its member clubs have engaged in widespread, ongoing violations of Article 39 ‘Players’ Rights to Medical Care and Treatment’ and Article 2, which requires the parties to ‘use their best efforts to faithfully carry out the terms and conditions of (the CBA) …'” writes DePaso.
The Evans suit, it should be noted, is filed in the same San Francisco federal court as Dent v. NFL, and the Evans suit was filed by retired NFL players, too. The NFL filed a motion to dismiss the Dent suit, which was granted, but the plaintiffs’ filed an appeal in the Ninth Circuit and await a ruling. The Evans case survived an initial motion to dismiss, and is ongoing.
In an interesting twist, when the NFL filed a response to the union grievance to the Ninth Circuit Court of Appeals Monday, the league’s chief counsel, Paul Clement, cites the Dent case in the subject heading. It appears the league is trying to sway the appeals panel in the Dent case. The attorney for the plaintiffs in both federal suits told the Daily News Tuesday that the union’s actions justify the allegations made by the current players.
“The fact that the NFLPA has latched on to allegations, and through its own due diligence believes in the veracity of the allegations, gives us great comfort that everything we’ve factually alleged is in fact true,” said Steve Silverman, the lead attorney for the plaintiffs in both federal suits. “They are current players, and if former players are alleging illegal practices and current players are telling their labor union attorneys that these practices are still going on, that would be justification for filing a grievance to stop these practices from happening today.
“No one but us has the ability to dig deep into these documents, emails and produce deposition testimony to shed light on these allegations, and it gives tremendous validity to our lawsuits that the union is filing a grievance,” Silverman added.
The NFLPA declined comment, as did the DEA. A spokesman for the U.S. Attorney’s Office for the Southern District of New York also declined comment.
The NFL referred The News to its letter dated May 8, in which Clement argues that the grievance should be “dismissed for failure to exhaust.”
In attachments included with the NFLPA grievance, a disturbing culture within NFL locker rooms is exposed; including contents from one email dated Aug. 24, 2009 where Cincinnati Bengals head trainer Paul Sparling wrote: “Can you have your office fax a copy of your DEA certificate to me? I need it for my records when the NFL ‘pill counters’ come to see if we are doing things right. Don’t worry, I’m pretty good at keeping them off the trail!”
Another portion of the attachment says that Steelers team physician Dr. Anthony Yates testified that “he witnessed players lining up for the ‘T Train’ – Toradol injections before a game – something that had been occurring with the Steelers for at least the previous 15 years.”