Last month, a federal judge struck down what was left of a class-action lawsuit that accused NFL teams of pumping ex-players full of dangerous painkillers, to the detriment of the long-term health of those players. The July 21 ruling, by Judge William Alsup of the U.S. District Court of Northern California, stated that the former players’ claims did not qualify as “intentional harm,” and that workers’ compensation and the grievance process laid out in the NFL’s collective bargaining agreement with the NFLPA were the exclusive remedies through which those players can seek relief.
But recently unsealed emails and other documents reveal the level of concern team doctors had over possible violations of federal drug laws and the efforts made to circle the wagons after allegations were first made against then-Chargers team doctor David Chao, whose attempts to assure federal investigators that what he was accused of doing was standard procedure were seen by league doctors as self-serving.
In 2010, agents from the federal drug enforcement agency searched Chao’s office after discovering Chao had made more than 100 prescriptions out to himself (an allegation Chao denied). The DEA got involved only after then-Chargers safety Kevin Ellison was arrested and charged with possession when police caught him with a large quantity of Vicodin pills during a routine traffic stop. Around the same time, the DEA was looking into the New Orleans Saints and an allegation of theft of controlled substances. By 2012, the charges against Ellison were dropped and the DEA closed its investigation of Chao after finding he was not using the pills himself, while also declaring that Chao’s record-keeping was by then compliant. It wouldn’t be until 2015 that the NFL as a whole finally developed guidelines that conformed with the DEA’s recommendations for the handling of pain medications.
But on July 10, 2010, as the DEA’s investigation was ramping up, Chao emailed Patrick Connor, the Carolina Panthers’ team doctor and the then-president of the NFL Physicians Society. Chao wanted to know whether the NFLPS would say anything publicly “or at least notify our colleagues so they dont get stuck in this like me?”
The following day, Chao emailed Connor again to say he had reached out to Elliot Pellman, a key figure in the NFL’s denial of the growing science surrounding the impact of concussions, to request that someone from the league publicly back him by saying “that everyone in the league does it the same way” and that Pellman had even “agreed that we all do it this way.”
One month later, on Aug. 11, 2010, several NFL medical officials held a conference call to address the federal DEA investigation. According to minutes of that meeting that were included in the court filings, the NFL team doctors made it clear they wanted to distance themselves from Chao as much as possible.
Also from the minutes: “We don’t want to give them the fodder that we have been doing this wrong. We don’t want to show them our deficiencies.”
A few months later, on Jan. 7, 2011, Pellman emailed Connor and Pittsburgh Steelers team doctor Anthony Yates a link to a Fox News story about Chao getting smacked with a $2.2 million medical negligence penalty. Pellman also cc’d NFLPA medical director Thom Mayer.
Connor replied to Pellman only with following. Note the reference to Joe Rannazzisi, the DEA official who would have a contentious meeting with NFL team doctors at the combine a few weeks later:
Pellman replied to Connor to say of Chao, “He really is a special person.”
What Chao’s “findings” referred to was his effort to survey teams to gauge their practices for handling and distributing controlled medications, in an apparent attempt to show the DEA that he wasn’t the only team doctor handing out transporting painkillers across state lines and handing them out like candy. Some time before the survey went out, Chao talked to Connor by phone and told him about his plans for the survey. That prompted Connor to send an email to Pellman, Yates, and Indianapolis Colts team doctor Art Rettig.
Connor was not happy with Chao. He said Chao inaccurately told him Rettig had given him the green light to make a poster presentation of the survey at the NFL combine the following month. Connor said Chao also offered to let him use the survey’s information in his upcoming discussions with DEA officials. “Wow,” Connor then wrote.
Connor also informed the other doctors he told Chao to “cease this study right away” because “it serves no purpose other than Dave Chao covering Dave Chao’s backside, will clearly be received by his peers as an effort to focus the attention on others in hope of taking the focus off him.”
Chao apparently offered to consider what Connor said, while Connor also said he would have Ryan Vermillion, the Panthers’ trainer, and John Norwig, the Steelers’ trainer, “squelch this effort” at the trainers’ level. “What a bad idea, huh?” Connor said of Chao’s survey idea.
At that point, Pellman and Connor just started clowning on Chao. Pellman replied to Connor eight minutes later to say, “As you would say ‘WOW!!!’” One minute after that, Connor wrote back to say, “I am CLEARLY not paid enough for this job!!!”
Two days later, the Chargers’ trainer sent the survey to other team trainers anyway.
Vermillion, the Panthers’ team trainer, forwarded this email to Connor. The following day, the Chargers’ trainer emailed the other trainers again to tell them he had “been just informed that our medical staff must stop collecting data form the survey.”
But a few weeks later, on Feb. 7, Pellman admonished Chao for distributing the survey and not including his (Chao’s) own name anywhere on it. The survey was “not necessary,” Pellman added.
Chao responded by asserting his innocence and saying “the main issue the dea had with the chargers is that we (like all other teams) travelled with controlled substances” and that “it would have been easy for me to turn the public focus to the entire league and my nfl colleagues by saying ‘we all do it that way.’” Chao also said, “i continue to believe this to be a league wide issue.”
The class-action suit that unearthed this correspondence and other documents was filed in 2015 on behalf of 1,800 former players against all 32 teams. The case was later amended after Alsup tossed out allegations of conspiracy in February. A previous painkiller-related suit, filed on behalf of former player Richard Dent, was also dismissed but is now being appealed. The Dent suit is also at the heart of a grievance filed by the NFLPA.
In May, Judge Alsup tossed out most of the claims from the 2015 class-action suit that alleged teams had broken federal drug laws and that players’ health problems were the result of pain meds given to them recklessly by team doctors. At that time he let stand the claims of two plaintiffs, Alphonso Carreker and Reggie Walker, against their former teams, the Chargers, Packers, and Broncos. But last month, even as he ruled that both players failed to show that those teams intended to harm them, Alsup also included this caveat:
This and other orders ruling against the theories advanced by plaintiffs’ counsel in these cases do not diminish the seriousness of the national need to protect the health and safety of our professional athletes. ... Although workers’ compensation and collective bargaining remedies are not gold-plated remedies, they are at least remedies recognized under the law. The sweeping remedy sought herein by plaintiffs is not, on this record, available under the law.
All of recently unsealed exhibits from that lawsuit can be seen here: