Antitrust Law Daily NFL players ‘return to play’ RICO claims time-barred
Thursday, February 7, 2019

NFL players ‘return to play’ RICO claims time-barred

By Jody Coultas, J.D.

RICO claims brought by former pro football players against the NFL were properly dismissed as time-barred because the players knew or should have known of the alleged injury more than four years before the claims were filed.

Dismissal of RICO claims brought by seven former football players who claimed that their National Football League teams had conspired to prevent athletes from fully recovering from injuries by illegally supplying them with medications and by pressuring them to play while injured was upheld by the U.S. Court of Appeals in San Francisco. The lower court held, and the appellate court affirmed, that the four-year statute of limitations barred the claims because the players knew of the alleged injury—that their careers had been "cut short"—in 2004. Also, the claims could not be tolled because the players knew or should have known of the allegedly deceptive scheme to conceal the consequences of taking the painkillers and other medications (Evans v. Arizona Cardinals Football Club LLC, February 6, 2019, per curiam).

Former NFL players brought suit against the NFL alleging that, since the 1960s, team doctors and trainers have provided players with painkillers, anti-inflammatories, and sleep aids in an effort to quickly return players to the game, rather than allow them to rest and heal properly from serious, football-related injuries. The clubs allegedly maintained the "return-to-play" culture by concealing the side effects and long-term health consequences associated with taking such medications from the players. The players further contended that club doctors and trainers provided medications without a prescription and without properly documenting administration of the medications. For instance, after games club trainers would hand out anti-inflammatories and pain killers to anyone who needed them, no questions asked.

The federal district court in San Francisco dismissed the RICO claim as time barred by the four-year statute of limitations and entered a final judgment. The court found that all of the players knew about their shortened NFL careers more than ten years before they filed their RICO claims, and further found that the players had constructive knowledge of their diminished prospects for post-NFL employment because the information that was in their possession when they stopped playing was sufficient to warrant an investigation that, if reasonably diligent, would have led to the discovery of their asserted injuries. Moreover, any loss of earning capacity that the players allegedly incurred from "recent" health problems were the result of personal injuries that were not covered by RICO. Finally, RICO’s statute of limitations could not be tolled because the alleged concealment of the names and risks of the offending medications, and the nondisclosure of their instructions for use, would not have obscured the specific facts that were needed to support the players’ theory that the illegal conduct of their NFL teams both shortened their football careers and diminished their post-NFL employment prospects.

Starting the clock. The appellate court upheld the dismissal of the RICO claims on statute of limitations grounds. On appeal, the players argued that the RICO claim was timely because their RICO claim did not begin to accrue until March 2014 when plaintiffs allegedly first learned of the fraudulent scheme. However, that argument was barred by the Supreme Court’s holding in Rotella v. Wood, 528 U.S. 549, 555 (2000). The court in Rotella stated that the discovery of the injury, not discovery of the other elements of a claim, starts the clock on RICO claims. The players knew, or should have known, of their primary business injury—that their careers had been "cut short"—when their respective playing careers ended. Because the most recent plaintiff’s NFL career ended in 2004, the RICO claim expired at the latest in 2008.

Equitable tolling. Equitable tolling of the RICO claim was not warranted, according to the court. To establish equitable tolling, a plaintiff must plead with particularly that the defendant actively misled her, and that she had neither actual nor constructive knowledge of the facts constituting the RICO claim despite due diligence in trying to uncover those facts. The players failed to allege any facts that they exercised due diligence in trying to uncover the facts giving rise to their RICO claim. The alleged failure to disclose the consequences of taking various medications, which concealed the existence of their RICO claim, did not toll the claim because the players’ receipt of pills on airplanes, in unmarked containers, and without prescriptions should have informed them of the allegedly fraudulent conduct.

The case is No. 17-16693.

Attorneys: Phillip J. Closius (Silverman Thompson Slutkin & White) for Etopia Evans. Benjamin Conrad Block (Covington & Burling LLP) and Jack P. Dicanio (Skadden, Arps, Slate, Meagher & Flom, LLP) for Arizona Cardinals Football Club, LLC, Atlanta Falcons Football Club LLC, Buccaneers, LP and Buffalo Bills, Inc.

Companies: Arizona Cardinals Football Club, LLC; Atlanta Falcons Football Club LLC; Buccaneers, LP; Buffalo Bills, Inc.; National Football League

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