NFLPA makes Deflategate dig in painkiller grievance vs. NFL
— -- The NFL Players Association filed a non-injury grievance against the NFL?last month, alleging the league and its teams conspired to violate collective bargaining agreement requirements on dispensing prescription painkillers.
In its letter, the NFLPA referenced the Deflategate case, saying it "is incomprehensible" that the league has taken no action against clubs that have violated the CBA provisions, but severely punished the New England Patriots for "taking a tiny amount of air out of footballs."
The 11-page grievance was disclosed by the NFL in a legal filing Monday in its response to a lawsuit by former Chicago Bears defensive end Richard Dent, in which he alleges teams dispensed painkillers while misleading players about associated health risks. Dent's case was dismissed in 2014 by a federal judge who said the CBA was the proper forum to resolve his claims. Dent's lawsuit is currently being reviewed by a federal appeals court.
The league argues that Dent's appeal should be dismissed as the NFLPA's grievance displays that "the claims are 'inextricably intertwined' with applicable CBAs and preempted under ?301 of the Labor Management Relations Act."
Specifically, the grievance alleges that the NFL violated Article 39 of the CBA, which details players' rights to medical care and treatment. According to the NFLPA, the league did not, to the best of its ability, ensure compliance with "all federal, state, local requirements, including all ethical rules ... and professional standards."
In the NFLPA's non-injury grievance, which was filed April 28, the union cites an investigation of the NFL by the Drug Enforcement Agency and several incidents of team violations noted in a federal lawsuit filed by former NFL fullback Charles Evans' widow, Etopia, such as:
- A memorandum from the Atlanta Falcons that documents a phone call between Atlanta's current vice president of finance, Rob Geoffroy; director of sports medicine and performance Marty Lauzon; assistant trainer Danny Long; and NFL director of benefits Mary Ann Fleming. The call allegedly indicates the team's medication dispensation log had no physician signatures and it was unclear what had been given to players. It also was unclear whether there was any communication between the trainers and doctor and that "there is no evidence that the doctor actually knows what medication has been given to the players."
- An email from Jan. 7, 2008, to team doctors by Minnesota Vikings head trainer Eric Sugarman that states that the number of Ambien, Toradol and diphenhydramine shots that were recorded as given out didn't match the number of shots missing from kits. The email also states that "there have been two incidences of drugs that have not been accounted for at all."
- Testimony from a Buffalo Bills doctor (Dr. John Marzo) that he would travel with controlled substances to dispense to players as late as 2014, even though he was informed in 2011 that he was no longer permitted to do so. Marzo also testified the team's doctors and trainers didn't caution the players on the dangers of mixing medications.
- Testimony by Bills trainer Bud Carpenter at his deposition that he witnessed team doctors inject players with prescription medication without informing them what drug was being administered and or about any possible side effects the drug might have.
- An email from Aug. 24, 2009, from Cincinnati Bengals head trainer Paul Sparling asking for a copy of a DEA certificate to be faxed to him. "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!"
- Email correspondence between Sparling and Lions head trainer Dean Kleinschmidt: "Until the VCML is actually in effect, we will continue to do as we have done for the past 42 years [i.e., travel and distribute controlled substances in violation of federal law]. I sure would love to know who blew up the system that worked all these years."
- An Oct. 13, 2014 survey responded to by 27 NFL teams that noted 26.7 players per game took at least one dose of Toradol.
- A memo on NFL letterhead dated March 1, 2013, from Lawrence Brown to the Steelers' team doctor (Dr. Anthony Yates) that states "there was documentation of dispensing by a non-physician [despite the numerous warnings that had been going around the League since the early 1990s, as documented herein]. Please re-evaluate to insure that this behavior is congruent with federal and state regulations." The letter also noted that in 2012 the Steelers gave out 7,442 doses of NSAIDs to its players compared to the NFL average of 5,777 does per team.
- Testimony from Yates that, as of 2010, a majority of teams "had trainers controlling and handling prescription medications and controlled substances when they should not have." He also 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."
The NFLPA asked the arbiter for several areas of relief, such as:
- a finding that the NFL and its teams have violated and continue to violate Article 39 and Article 2 of the CBA;
- ordering teams to comply with CBA provisions and a corresponding order that teams cease and desist from violating Article 39, Section 3 (e) of the CBA;
- an order directing teams to fire physicians and medical personnel who are proven to violate CBA obligations;
- an order that the NFL implements a policy of discipline for teams "that fail to meet all compliance and reporting duties regarding prescription painkillers per their Article 39 obligations" and a corresponding order that the NFL cease and desist from violating its CBA obligation;
- allowing the NFLPA medical director access to information from all NFL health and safety committees;
- an order that the arbiter maintain ongoing jurisdiction to ensure future compliance; periodic disclosure to the arbiter and the NFLPA of records regarding painkiller use and dispensing and transmission of prescription data; and bi-annual mandatory training for all NFL medical personnel that includes attendance by NFLPA medical staff regarding issues of compliance with federal, state and medical ethical practices.
ESPN's Kevin Seifert contributed to this report.
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