NFL Painkiller Claims: The Difference Between a Grievance and a Lawsuit

There are, as of this writing, still two active lawsuits against the NFL and/or its member teams regarding the prescription of painkillers to players. Dent v. NFL was filed in the District Court of Northern California in May 2014 and claimed the league withheld medical information from players, oversaw acquisition and dispensing of medications, and violated state and federal prescription drug laws. A year later, Etopia Evans v. Arizona Cardinals was filed in Maryland but moved to the same court and judge as Dent. The Evans case makes many of the same legal claims as Dent, but against the member teams instead of the league.

In addition, the NFL Players Association recently filed a grievance against the league, citing the same factual allegations as the lawsuits, but claiming these actions violated the Collective Bargaining Agreement between the NFL and the Players Association. So how does the grievance differ from the lawsuits? And how might it affect existing litigation?

Good Grief

As noted by the NFLPA grievance, the 2011 CBA between the NFL and Players Association place new requirements on teams regarding player treatment, including:

• That "each Club physician's primary duty in providing player medical care shall be not to the Club but instead to the player-patient";
• That "all Club physicians and medical personnel shall comply with all federal, state, and local requirements, including all ethical rules and standards established by any applicable government and/or other authority that regulates or governs the medical profession in the Club's city";
• That "the NFLPA Medical Director shall be a voting member of all NFL health and safety committees, including but not limited to the NFL Injury & Safety Panel and its subcommittees and shall have access to all of the same data, records and other information provided to the NFL Medical Advisor and/or any other member of such committees"; and
• That "[e]ach Club shall use its best efforts to ensure that its players are provided with medical care consistent with professional standards for the industry."

The NFLPA claims that the "NFL and its member Clubs have continuously, egregiously disregarded these explicit CBA requirements as they apply to the proper, legal, medically ethical prescription, dispensing, and transportation of prescription painkillers."

Unlike a lawsuit, which, barring a settlement, would lead to a jury trial, the NFLPA is threatening the league with arbitration where a neutral arbitrator could find that the NFL violated the CBA and order it to comply.

Bad Impact

The NFL had already won a Motion to Dismiss the claims in the Dent case, by arguing that the CBA preempted any legal claims made by the plaintiffs. While that ruling is on appeal, the NFL itself used the grievance to bolster its argument that any dispute about painkillers be waged out of court. And while the allegations detailed in the grievance could potentially bolster the claims made in Evans against the member teams, that lawsuit suffered a major setback last week when the same judge who dismissed the entire Dent case dismissed many of the biggest Evans claims as well.

The NFL's use of some damning allegations to squirm out of litigation is a bold move, and we'll see if it works out in the long run.

Related Resources:

• Lawsuit: NFL Teams Repeatedly Broke Federal Drug Laws, Handed Opioids Out Like Candy (Deadspin)
• Former NFL Players Claim Teams Broke Federal Drug Laws in Class Action (FindLaw's Tarnished Twenty)
• Sports Injury Lawsuits for Pain Medication Liability (FindLaw's Tarnished Twenty)
• Colts Owner Jim Irsay Pleads Guilty to Drug-Related OWI (FindLaw's Tarnished Twenty)