With the NFL on verge (for the last three years) of putting the concussion litigation behind it for good, the NFL has a separate problem that eventually could end up being even more costly than the multi-million-dollar settlement negotiated in 2013 for head trauma.
Via the Associated Press, the second painkiller lawsuit filed against not against the NFL but its individual teams has survived a motion to dismiss the complaint. The first effort didn’t, because it was written in a way that brought it within the terms of the Collective Bargaining Agreement. By shifting the attack from the league to the teams and by beefing up the claims from allegations of negligent to intentional misconduct, the second lawsuit has stuck, at least for now.
The lede of the AP article says that the plaintiffs “will get their day in court,” but there are still hurdles to overcome before that happens. For now, the plaintiffs will be allowed through the “discovery” process to harvest evidence aimed at proving claims that, for example, doctors and trainers understated the side effects of medications. Along the way, the teams will try to secure key admissions and other proof that would support an eventual motion for summary judgment, which is an argument that judgment can be entered for the teams without a trial because there’s no disputed fact that a jury needs to resolve based on testimony, documents, etc. Putting it another way, the teams would be arguing that the facts as developed fail to support the facts as alleged.
Current and former coaches also will become targets of the discovery process, given that the lawsuit claims that Don Shula, Howard Schnellenberger, Wayne Fontes, Mike Holmgren, and Mike Tice told players they’d be cut unless they took painkillers to allow them to return to the field.
The concussion lawsuit was settled before the plaintiffs received the green light to proceed with discovery. For the NFL, the question becomes whether it’s now time to open up the vault for the plaintiffs in this case, given that the effort to collect evidence undoubtedly will result in the disclosure of deposition testimony and other information that will tend to make the league and its teams look bad.
Barring a settlement, and if the NFL’s inevitable motion for summary judgment is denied, the day(s) in court will come, and the case will consist of perhaps the most compelling players-vs.-owners sports trial the American public has ever seen.