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A federal appellate court has revived a lawsuit against the National Football League brought by former players who claim they were inappropriately administered painkillers during their playing days to keep them on the field.

U.S. District Judge William Alsup in San Francisco previously dismissed the lawsuit brought on behalf of Pro Football Hall of Fame inductee Richard Dent and nine retired players who were seeking to represent a class of more than 1,000 former players. Alsup found that the players’ claims were pre-empted by the federal Labor Management Relations Act, the law which prohibits state law claims based on rights created by collective bargaining agreements or claims “substantially dependent on analysis” of those labor agreements.

But a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Thursday found that the players’ claims that the drugs were handed out by trainers without medical licenses and without proper prescriptions didn’t arise from the league’s collective bargaining agreements with players.

In the district below, Alsup found that the “essence” of the plaintiffs’ negligence claim was that individual teams mistreated players and the NFL failed to intervene. The Ninth Circuit panel, however, found that the players were “not merely alleging that the NFL failed to prevent medication abuse by the teams, but that the NFL itself illegally distributed controlled substances.”

“To the extent that the plaintiffs allege they were injured by the NFL’s violation of [drug distribution] laws, their claims can be assessed without any interpretation of the CBAs,” wrote Ninth Circuit Judge Richard Tallman, who was joined by colleagues Judges Jay Bybee and N. Randy Smith.

The NFL’s defense team includes lawyers from Akin Gump Strauss Hauer & FeldSkadden, Arps, Slate, Meagher & Flom, and Kirkland & Ellis. Kirkland’s Paul Clement handled oral argument at the Ninth Circuit for the league. Akin Gump’s Rex Heinke declined to comment Thursday. League representatives didn’t immediately respond to messages.

The plaintiffs are represented by a team that includes lawyers at Robbins Geller Rudman & Dowd and Silverman Thompson Slutkin & White. Silverman Thompson’s Phillip Closius handled arguments for the plaintiffs. He didn’t immediately respond to an email message Thursday. In an emailed statement, Stuart Davidson of Robbins Geller said the ruling was “not only a vindication of the rights of the hundreds of retired NFL players we represent, but a complete repudiation of professional sports leagues’ consistent refrain that virtually any lawsuit brought against it — regardless of how egregious the alleged misconduct — must be dismissed based on the collective bargaining agreements.”

The Ninth Circuit’s decision remands the case to Alsup for further proceedings, but the appellate panel cautioned that the case should center on claims against the league, rather than individual teams.


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