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“Washington Post Article Highlights Alleged Improper Drug Practices By NFL Teams”

DEA Chronicles By Larry Cote, Shannon O'Boye, Leah Tinney

The Washington Post reported last week that it obtained sealed court documents describing how National Football League teams have violated federal prescription drug laws regarding the storage, tracking, transportation, and distribution of controlled substances. The documents—prepared by lawyers representing more than 1,800 former professional football players—include testimony and records that implicate all 32 NFL teams and a number of league personnel.

Plaintiffs filed Evans v. Arizona Cardinals Football Club, LLC in the U.S. District Court of Northern California in May 2015, after a federal judge dismissed a similar claim filed in state court (Dent v. Natl. Football League) on preemption grounds. Although the basis of the claims have long been public knowledge, the sealed documents cited in the article have renewed public interest by painting a detailed picture of alleged improper dispensing and overprescribing.

Federal Scrutiny

The DEA began investigating individual league physicians and team drug practices in 2010, when police found San Diego Chargers player Kevin Ellison with 100 doses of Vicodin at a traffic stop, and a lawsuit alleged New Orleans Saints assistant coach Joe Vitt was caught on video stealing handfuls of painkillers from a medicine cabinet. See Los Angeles Times article and Santini v. New Orleans Saints, LLC. At the time, the federal government investigated prescription drug abuse and unlawful dispensing practices as team-specific, isolated incidents, and the media typically reported these events in similar manner. See Los Angeles Times and New York Daily News. However, the allegations described in the sealed filings implicate officials at every level, and the DEA expanded its investigative efforts league-wide shortly after plaintiffs initiated this suit.

DEA agents conducted coordinated, surprise examinations of three NFL teams in November 2014. According to the The New York Times, the unannounced visits entailed bag searches and extensive staff questioning, and focused largely on whether travelling team doctors were dispensing prescription drugs in states where they were not lawfully authorized to do so. Agents did not find proof of misconduct. The Washington Post reported that the sealed filings contain statements from an anonymous source asserting that a DEA employee tipped off NFL insiders to the impending raids. The source is quoted as saying, “Not surprisingly, none of [the teams] were carrying controlled substances.”

NFL spokesman Brian McCarthy denied the allegations contained in the court filings to The Washington Post, calling them “meritless.” “The NFL clubs and their medical staffs are all in compliance with the Controlled Substances Act,” McCarthy said in an email to the newspaper. “The NFL clubs and their medical staffs continue to put the health and safety of our players first, providing all NFL players with the highest quality medical care. Any claim or suggestion to the contrary is simply wrong.”

Improper Dispensing

The court filings reviewed by The Washington Post include a number of allegations that team doctors dispensed prescription drugs, including controlled substances, in a laissez-faire manner, outside of their licenses’ geographic scopes. Federal law requires prescribers of controlled substances to meet strict regulations related to acquiring, storing, labeling, and transporting the drugs. It is unlawful for athletic trainers to dispense or handle controlled substances.

In one document cited by the Post, a trainer admitted under oath that he witnessed team doctors giving players prescription injections without disclosing the name or expected side effects of the drug they were administering. He also testified that doctors regularly provided prescription medications in states where they were not licensed to do so.

According to the Post article, a previously unreleased league report from September 2014 found that many teams regularly allowed non-physicians to administer and dispense medications. The complaint cites this document, in conjunction with multiple instances in which clubs were warned about the practice, including letters from league medical advisors to the Cincinnati Bengals, Kansas City Chiefs, and Tennessee Titans.

Overprescribing

The court filing cited by the Post also contends teams have used painkillers and prescription-strength anti-inflammatories in a manner akin to performance-enhancing drugs. The article stated that a 2006 memo from one team’s head trainer argued that the team was at a competitive disadvantage because it did not use a painkiller in the same doses that opponents did, and he urged the team doctor to increase his prescribing rates. Another internal study found that in 2012, the average team prescribed nearly 5,777 doses of nonsteroidal anti-inflammatory drugs and 2,213 doses of controlled medications to its players. That’s between six and seven pills or injections a week for each player over the course of a typical NFL season, the Post reported.

According to the Post, the players’ lawsuit claims that most teams have freely offered players the powerful anti-inflammatory Toradol to numb existing injuries and help treat post-game aches and pains. The sealed filing cited by the Post contained one doctor’s testimony, stating that last season, after the league formally recommended teams decrease Toradol usage, doctors were still inviting players to “line up for the ‘T Train’” before and after games.

The NFL’s collective bargaining agreement with the players’ union makes it difficult for cases to reach the discovery stage when players are seeking damages from the league. But, in July 2016, a federal judge allowed the suit to continue. Evans v. Arizona Cardinals Football Club, LLC, is currently scheduled for trial in October 2017. The judge ruled that the players’ allegations fell under an “illegality exception” to the collective bargaining rule, which prohibits parties tied to a collective bargaining agreement from contracting for or immunizing illegal conduct.

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