Court filings allege NFL teams violated federal law in misuse of painkillers
March 10, 2017 5:41 AM
Peter Diana / Post-Gazette
Steelers team doctor Anthony Yates, pictured here helping Maurkice Pouncey off the field in 2010 in Cincinnati, gave a deposition in court that is quoted heavily in a Washington Post story about NFL teams' misuse of painkillers.
By Rick Maese / The Washington Post
National Football League teams violated federal laws governing prescription drugs, disregarded guidance from the Drug Enforcement Administration on how to store, track, transport and distribute controlled substances, and plied their players with powerful painkillers and anti-inflammatories each season, according to sealed court documents contained in a federal lawsuit filed by former players.
The sealed material, which was reviewed by The Washington Post, provides a rare look into the league’s relationship with drugs and how team doctors manage the pain inherent in a bruising sport to keep players on the field.
Federal law lays out strict guidelines for how teams can handle and dispense prescription drugs. The sealed court filing, which includes testimony and documents by team and league medical personnel, describes multiple instances in which team and league officials were made aware of abuses, record-keeping problems and even violations of federal law and were either slow in responding or failed to comply.
The filing, which was prepared by lawyers for the players suing the league, asserts that “every doctor deposed so far ... has testified that they violated one or more” federal drug laws and regulations “while serving in their capacity as a team doctor.” Anthony Yates, the Pittsburgh Steelers’ team doctor and past president of the NFL Physicians Society, testified in a deposition that “a majority of clubs as of 2010 had trainers controlling and handling prescription medications and controlled substances when they should not have,” the filing states.
At times, team medical staff displayed a cavalier attitude toward federal guidelines that govern dispensing medicine. In August 2009, for example, Paul Sparling, the Cincinnati Bengals’ head trainer, wrote in an email: “Can you have your office fax a copy of your DEA certificate to me? 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!”
The Bengals did not make Sparling available for comment or respond to questions about his 2010 email.
NFL spokesman Brian McCarthy said the allegations contained in the court filing “are meritless and the league and its clubs will continue to vigorously defend these claims.”
“The NFL clubs and their medical staffs are all in compliance with the Controlled Substances Act,” McCarthy said in an email. “. . . 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.”
The details and communications were unearthed by lawyers representing more than 1,800 former professional football players who are suing the league in U.S. District Court in northern California, claiming they suffer long-term organ and joint damage, among other maladies, as a result of improper and deceptive drug distribution practices by NFL teams.
The material was collected by the players’ attorneys as part of the discovery process in the case. The attorneys redacted large portions of the 127-page complaint because both parties had agreed to do so under a court-approved protective order, sealing it from public view. The Post was able to review the redacted information because of an apparent technical error in the filing process but not some of the supporting exhibits and documents.
The filing solely reflects the ex-players’ claims against the NFL’s 32 teams, presenting their legal arguments and evidence to the court. Steven Silverman, the plaintiffs’ attorney, said he could not comment.
The court filing reveals that the teams dispensed painkillers and prescription-strength anti-inflammatories in numbers far beyond anything previously acknowledged or made public. In the calendar year of 2012, for example, the average team prescribed nearly 5,777 doses of nonsteroidal anti-inflammatory drugs and 2,213 doses of controlled medications to its players, according to a March 2013 internal document from Lawrence Brown, the NFL-employed medical adviser who oversees its drug issues.
Those numbers could average out to about six to seven pain pills or injections a week per player over the course of a typical NFL season, but sports medicine experts noted that it’s unlikely the drugs were distributed evenly over the entire roster and just as unlikely that team logs represent the full extent of medications players seek out to manage pain.
“It sounds like an incredible amount of intervention with some pretty risky drugs, some of which, in the case of Vicodin, have a high addiction potential,” said Arthur Caplan, director of the Division of Medical Ethics at New York University’s Langone Medical Center and co-founder of the NYU Sports and Society Program. “It makes you think, are the physicians looking out for the health of the players, or are they just trying to keep them on the field?”
Drug experts who reviewed the data for The Post cautioned that a thorough understanding of the league’s use of pain medication is limited without knowing the exact dosages, types of controlled substances administered and whether all the players on a team were consuming the medications or whether a smaller number accounted for a larger percentage of the drug use.
The filing likens painkillers to performance-enhancing drugs and says while players often felt compelled to use them to contribute to their teams, medical staffs felt pressured to administer them to remain competitive. A February 2006 memo included in the court filing from the Minnesota Vikings’ head trainer, Eric Sugarman. Writing to then-head coach Brad Childress and the team’s vice president for operations, the trainer said he had met for three hours with team physician David Fischer and lamented the fact the Vikings weren’t regularly using a powerful painkiller called Toradol, as other teams were.
“I expressed my concern that [the Vikings] are at a competitive disadvantage. . . . I feel very strongly about this point,” he wrote. “. . . I feel that Dr. Fischer is beginning to see my point of view on many issues. I also feel he is willing to change to improve.”
The Vikings did not respond to requests for comment or to make Sugarman or Fischer available.
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Health and safety practices in the NFL have been under scrutiny in recent years, most notably regarding head trauma from concussions and other long-term health issues faced by former players. The court filing gives a glimpse behind the league’s medical curtain, revealing some of the NFL’s internal discussions and attitudes toward managing pain.
In their filing, the players’ lawyers cite multiple instances in which team executives and league officials were made aware of issues surrounding the handling of pain medication. League medical advisers Brown and Elliott Pellman communicated with team physicians on issues such as medication abuse and attended meetings of the NFL Physicians Society. For example, the complaint cites a 1998 meeting of the society in which Brown reported that during an audit, at least “5 teams were in noncompliance with controlled substances.”
The NFL declined to make the medical advisers available to comment.
Bud Carpenter, the Buffalo Bills’ longtime trainer, “admitted under oath that he witnessed team doctors give players injections of prescription medications without telling them what the drug was they were receiving or its side effects. . . . He further testified that doctors provided prescription medications at places other than where they were allowed to do so in violation of federal and state laws.”
The Bills declined to comment on the remarks or make Carpenter or other team medical personnel available.
The former players say the teams intentionally disregarded federal laws and openly acknowledged their compliance problems. In the complaint, lawyers say “numerous documents obtained during discovery show how Clubs and their doctors and trainers concealed their illegal activities for years.”
For example, in a May 2010 email, Pepper Burruss, the Green Bay Packers’ longtime trainer, wrote to his counterpart with the Steelers: “I expect no immediate guidance from Dr. Brown or Dr. Pellman, other than ‘cover your own behind.‘ “
A Packers spokesman declined to comment or to make Burruss available.
The complaint alleges the NFL has been plagued by prescription drug problems for decades. The league’s former drug adviser, Forrest Tennant, issued a report in May 1990 that stated, in part, “[s]ome Clubs don’t seem to know which drugs are controlled substances, and some don’t apparently understand the necessity (and law) to keep dispensing logs and an internal audit.” Another league document, produced in September 2014, called “NFL Prescription Drug Program Advisory Committee Major Findings and Recommendations,” reported the “non-physician administration and/or dispensing of medications occurs at many Clubs,” the complaint states.
Federal law bars nonlicensed team personnel, such as athletic trainers, from dispensing medication. The complaint cites multiple instances in which clubs were warned about this practice, including letters from Brown to the Bengals, Kansas City Chiefs and Tennessee Titans.
In 2010, the DEA began a crackdown on the league’s practices after a San Diego Chargers player caught in a traffic stop was found to be in possession of 100 doses of Vicodin, all issued by the team’s longtime physician, David Chao. The Chargers’ team doctor operated under a cloud of controversy before leaving the team in 2013 as the NFL Players Association called for his ouster, the DEA scrutinized his practices and the California state medical board revoked his license before deciding to put him on a five-year probation.
In August 2010, seven doctors from the NFL Physicians Society convened on a conference call with Pellman, the league’s medical adviser, to discuss the DEA’s new interest in their practices. The lawsuit quotes an unattributed remark from the minutes of the conference call: “We don’t want to give them the fodder that we have all been doing this wrong. We don’t want to show our deficiencies.”
The minutes of the call reflect that Pellman and at least two other team doctors met with DEA officials to discuss the investigation and the NFL’s practices, according to the documents. The DEA gave the physicians a 78-slide presentation on laws governing handling of controlled substances - including restrictions on transporting drugs across state lines - and a warning that there were no special exemptions for the league, the plaintiffs’ complaint states.
McCarthy, the NFL spokesman, said the DEA was invited to meet with team medical staffs “to ensure compliance” and “to ensure they are properly educated on federal law and aware of the risk of noncompliance.”
Yet even after the DEA began to instruct and pressure the league, the lawsuit charges that doctors still did not come into compliance. According to the sealed court filing, Buffalo’s team physician, John Marzo, testified in a deposition that after the DEA made its presentation to league physicians in 2011, he continued to travel with and administer controlled substances during road games.
In January 2012, Daniel Cooper, the Dallas Cowboys’ team doctor, wrote his congressman, urging a change to the Controlled Substances Act that would accommodate NFL teams. Cooper stated that for “decades under current law, team doctors have illegally [yet unknowingly] transported and administered medications to injured players while covering games away from home.”
The league didn’t bring teams into compliance until 2015, when it instituted the “visiting team medical liaison program,” which allows team physicians to use local doctors to prescribe and distribute controlled substances while on the road. The new program called for a stark departure in the way drugs were administered before, during and after games - and was met with resistance.
In a November 2010 email, Sparling, the Bengals’ trainer, wrote to his counterpart with the Detroit Lions, complaining about the new program. “Until the new [program] is actually in effect,” he said, “we will continue to do as we have done for the past 42 years. . . . I sure would love to know who blew up the system that worked all these years.”
The program did not take effect until 2015, after the DEA again applied pressure. According to the deposition of Yates, the Steelers’ doctor cited in the lawsuit, the impetus was a series of DEA raids conducted in October 2014 to see whether teams were traveling with controlled substances. The lawsuit states that NFL teams were tipped off by a DEA employee in advance of the raids, and “not surprisingly, none of them were carrying controlled substances.”
The Steelers declined to make Yates available for comment.
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The case marks a rare instance in which the attorneys suing the NFL and seeking damages on behalf of players have gone to discovery. Cases often are preempted by the labor deal between the NFL and its players’ union because the collective bargaining agreement provides other avenues to settle grievances, such as arbitration.
The plaintiffs, though, are suing each of the 32 NFL teams rather than the league as a whole, and in July, U.S. District Judge William Alsup allowed this one to continue on the grounds that the plaintiffs’ allegations fall under the “illegality exception” to the collective bargaining rule. The exception states that parties to a collective bargaining agreement cannot contract for or immunize illegal conduct.
Since then, plaintiffs’ lawyers have been interviewing potential witnesses under oath - including at least 11 team and league medical officials — and compiling pertinent documents, such as drug logs and communications between team executives. While the case isn’t scheduled for trial until October, the players’ attorneys say in their filing they already have compiled “hundreds of thousands of pages of documents.”
The complaint recounts specific allegations against each of the 32 teams and details the widespread mishandling and disbursement of medications. “These doctors and trainers dispensed the Medications to their football patients in an amount and manner they would never do with their non-football patients,” the ex-players said in their complaint.
Clubs distributed the drugs not just during and after games but beforehand to blunt the effects of potential injuries, according to the complaint.
A January 2010 email from a New York Jets assistant trainer revealed that team’s use in 2008: 1,031 doses of Toradol and 1,295 doses of Vicodin. The following season the Jets’ use of Toradol increased to 1,178 doses and of Vicodin to 1,564 doses.
Toradol, a nonsteroidal anti-inflammatory often used to manage short-term postoperative pain, deadens feeling and inhibits the body’s ability to sense injury. The opiate Vicodin also relieves and masks pain, but unlike Toradol, it is highly addictive.
According to the March 2013 document from Brown, the Steelers provided its players 7,442 doses of NSAIDs in 2012 - only the 10th most in the league that year - and 2,123 doses of unnamed controlled medications - the 14th most.
“It’s a lot of pills, but there’s also a lot of information we still don’t know,” said Linda Cottler, the founding chair of the Department of Epidemiology at the University of Florida’s College of Public Health and Health Professions.
In 2011, Cottler, who has helped advise the league in the past on prescription drugs, led the most comprehensive study to date on painkiller use in the NFL, surveying 644 retired NFL players. More than half the respondents said they used opioids during their NFL careers, and seven in 10 admitted to misusing the drugs. Of that group, 22 percent said they took six or more pills each day during their playing careers, the highest amount reported in the survey.
That study found that 7 percent of the former players were still actively using opioid drugs in retirement - more than four times the rate of opioid use in the general population at the time.
The sealed documents might not provide a full picture of the league’s use of pain medications, but they do offer snapshots of how much teams rely on pharmaceuticals to put their players on the field each week. According to the court filing: The Atlanta Falcons spent nearly $100,000 on prescriptions in a single year - nearly three times the league average; a Bengals trainer said he’s aware of teams that dispense 90 or more Vicodin pills per game; one drug inventory showed that during seven months of 2004, the Indianapolis Colts administered 900 doses of Toradol and 585 doses of Vicodin.
Representatives for the Falcons, Jets and Steelers declined to comment. The Colts did not respond to a request for comment.
The former players also allege in the complaint that they weren’t always sure what medicines they were taking and weren’t advised of the risks, because team doctors and trainers failed to inform them and keep proper records.
A January 2008 memo from the Vikings’ head trainer documented how sloppy the record-keeping could be. “Here is week 17’s fiasco,” he wrote, according to the sealed documents, before detailing how the team’s logs didn’t match the inventory. And a May 2010 email cited in the court filing showed that the Falcons’ logs didn’t match the league’s audit report for at least four medications. The team was also on the DEA’s “radar” for the large amounts of controlled substances it had ordered, according to court records.
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One drug in particular is highlighted throughout the lawsuit as a staple for NFL teams. Toradol is available only with a prescription. Though not addictive, it is powerful enough that many countries only administer it in hospitals and only after surgery. The lawsuit claims teams would freely offer it each Sunday to numb existing injuries but also in anticipation of the inevitable aches and pains accrued each Sunday.
A 2002 study found that 28 of the 30 teams that responded to a questionnaire administered Toradol injections - 15 players each game day on average. Though team physicians have been aware that such use was “off label,” the practice continued for more than a decade. In the 2013 Post survey of retired players, 50 percent of those who retired in the 1990s or later reported using Toradol during their careers, including seven out of 10 who retired in 2000 or later.
In 2012, an NFL Physicians Society task force was formed to study the drug and to “formulate a ‘best practice’ recommendation,” according to an email cited in the court filings from Matt Matava, the St. Louis Rams’ team doctor and the society’s former head. The task force was funded by the league office, and the lawsuit cites emails obtained during discovery that show Matava met with league Commissioner Roger Goodell in New York to discuss the task force in January 2012.
Though Matava’s task force recommended that Toradol not be used in anticipation of pain, it cited “unique clinical challenges of the NFL” and stated that each physician should practice medicine “as he or she feels is in the best interest of the patient.”
Toradol continued to be used heavily in the wake of the recommendation. The sealed court filing also cites a 2014 survey that included responses from 27 teams. On average, 26.7 players - more than half the active roster - took at least one dose of Toradol on game day.
According to the sealed court filing, months after the task force issued its recommendations, Matava emailed Yates, the Steelers’ doctor, questioning the team physicians who failed to respond to surveys regarding Toradol usage. “If these guys want to give Toradol because they think it is needed or acceptable, then they should . . . say so. What are they afraid of?” Matava, who did not respond to a request for comment, wrote in the same email that “[c]ontinued use of Toradol in the present climate is not rational.”
But apparently it is still in practice. According to the sealed filing, Yates testified in his deposition that “that even last season, he witnessed players lining up for the ‘T Train’ - Toradol injections before a game.”