NFL and NFLPA need to take closer look at possible painkiller abuse
Michael McCann

Monday, August 9, was a noteworthy day in the NFL and it had nothing to do with labor negotiations, Hall of Fame speech omissions or will-he-or won't-he speculation. Well, actually it had something to do with Brett Favre, but not in the way one would first imagine.

To fully understand the gravity of the date, it helps to go back to 1996, when the following chilling tale appeared in the pages of SI:

Green Bay Packers quarterback Brett Favre can pinpoint when, where and why he got scared straight. It happened on Feb. 27 in room 208 of Bellin Hospital in Green Bay, where he had just undergone surgery to remove one bone spur and several bone chips from his left ankle. One minute Favre, the NFL's MVP last season, was talking to his girlfriend, Deanna Tynes, their 7-year-old daughter, Brittany, and a nurse. The next thing he knew, there were tubes and IVs coming out of him everywhere.

He doesn't remember the 20 minutes in between, during which his limbs thrashed, his head banged backward uncontrollably, and he gnashed his teeth. During those minutes his body told him in a loud wake-up call to stop popping painkillers as if they were Lifesavers. He never heard Tynes scream to the nurse, "Get his tongue! Don't let him swallow his tongue!" He never heard a terrified Brittany ask, as she was being whisked from the room, "Is he going to die, Mom?"

After the seizure had ended and he had come to his senses, Favre looked into a sea of concerned medical faces and saw Packers associate team physician John Gray. "You've just suffered a seizure, Brett," Gray told him. "People can die from those." Favre's heart sank. Upon hearing from doctors in the room that his dependence on painkillers might have contributed to the seizure, he thought, "I've got to stop the pills, I've just got to."

Last season, Favre went on such a wild ride with the prescription drug Vicodin, a narcotic-analgesic painkiller, that Tynes feared for his life. He scavenged pills from teammates. At least once he took 13 tablets in a night. ... "The only reason I ever did this was because I had to," he said. "Had to. I had to play. Injuries have cost a lot of guys their jobs in this league, and there was no way an injury was ever going to cost me my job. Then it just got out of hand."

Favre, of course, went on to play 14 more seasons in the NFL, and whether he'll return for his 20th is largely dependent on how well his left ankle recovers from surgery performed two months ago. Whether he comes back or doesn't, it's worth pointing out that Aug. 9 was the last day hundreds of NFL players could be tested for painkillers and other possible substances of abuse until early next April. So if a player who's trying to make a team suddenly decides he needs to resort to extreme measures to stay on the field, he does so now with the knowledge that there's less chance of getting caught.

To be sure, there are exceptions. Players who have tested positive recently or are otherwise deemed to have abused a substance of abuse, such as a prescription drug without a prescription, are subject to additional testing beyond Aug. 9. Take Green Bay Packers defensive tackle Johnny Jolly, who has been suspended for the entire 2010 season for violating the league's substance abuse policy. His substance of abuse? Codeine, an opioid that relieves pain and increases tolerance to it. It's also a Schedule II controlled substance that is illegal without a prescription.

Until Jolly struck a plea deal with prosecutors on Aug. 3, the legal system threatened him with a far more serious penalty: up to 20 years in prison for illegally possessing the painkiller, which was discovered during his arrest outside a Houston nightclub in 2008. If he's ever reinstated, he'll be subject to testing. But for the vast majority of players, unless there is reasonable cause, the collective bargaining agreement mandates no testing for the likes of cocaine, marijuana, amphetamine, opiates (morphine and codeine) and phencyclidine (PCP) until April. Over-the-counter pain medicines, such as Tylenol or Aleve, are not tested, nor are prescription pain medicines such as Vicodin, Demerol, Percocet or OxyContin. By contrast, testing for steroids and illegal performance enhancers occurs throughout the year.

Other leagues and their respective players' associations have adopted different and, in some cases, stricter policies.

In the NBA, all players are subject to four random tests each season (from Oct. 1 to June 30) and any prohibited substance is fair game.

The NHL and NHLPA have bargained a similar arrangement, with every player subjected to as many as three tests from the start of training camp through the end of the regular season. NHL players are tested for steroids, illegal performance enhancers, narcotics and many other items, as the NHL and NHLPA have adopted the World Anti-Doping Agency's list of prohibited drugs (which does not include opiates).

Major League Baseball players, who are tested for steroids during the season, are not tested for many substances of abuse -- for example, cocaine, opiates and marijuana -- unless there is "reasonable cause."

Given that NFL players are tested for substances of abuse only during the offseason and for steroids throughout the year, while the other two "physical" pro leagues -- the NBA and NHL -- test for substances of abuse throughout their seasons, a cynic might infer that the NFL and NFLPA are more worried about players using steroids to get bigger and stronger than those same players using illegal drugs for treating pain or getting high.

Both organizations sharply disagree. An NFLPA spokesperson said the union takes the issue seriously and is trying to determine what it takes for players to get through each week in terms of pain. Meanwhile, an NFL spokesman said, "Our current procedures are as broad as the union has thus far allowed us to go. We are always seeking ways to improve our program. We recognize that in our society the misuse and abuse of prescription opioids is a problem. We test for it under the NFL's program, using the latest science and current understanding of the issue, and we closely monitor the trends. We do not see evidence of a particular problem among NFL players, but we do address it through testing, intervention and discipline."

Lending support to the NFL's argument is agent and attorney Neil Cornrich, whose clients include New England Patriots head coach Bill Belichick and Jacksonville Jaguars defensive end Aaron Kampman. While noting that painkiller abuse is a serious issue for the league and the players association, Cornrich recommends that it be viewed in the broader context of the United States: "If there is an increase in abuse among NFL players in using painkillers, it likely mirrors a general increase of what is happening in society and is not unique to the NFL," he said. "The unfortunate reality is that prescription painkillers are readily available over the Internet and across borders."

Cornrich's remarks are backed up by data: In July, the U.S. Substance Abuse & Mental Health Services Administration released a study showing "a dramatic rise" in painkiller abuse from 1998 to 2008 "among nearly all segments of the population, regardless of age, gender, educational level and employment status."

Relief of pain, of course, is an understandable desire for any NFL player, just as it is for any person. To expect NFL players to completely refrain from pain relief would be unreasonable and counterproductive.

"Players want to feel as healthy and as good as possible for the game at hand," explains Ross Tucker, who played seven years in the NFL as an offensive lineman and now writes for SI.com, "and using legal ways to relieve pain is to be expected. Problems emerge, though, when a player thinks that a double dose of a painkiller will make him feel twice as good. He could eventually become tolerant to the higher dose and then he might seek an even higher dose and so on and so on."

But as NFL players become bigger and stronger, and as their hits and tackles become harder and more injurious, do the NFLPA and the league have an increased responsibility to monitor pain relief? And how can the two determine if players are using painkillers to treat pain or merely to get high?

These won't be easy questions to answer in a sport that requires physical collisions at high speeds and a league that cannot -- and should not -- monitor the lives of its players 24 hours a day, seven days a week. But they are important to ask because pain is a sensory response to bodily damage. If pain is muted, a person may not appreciate the damage inflicted. If that person endures the violence of NFL games week after week, not adequately comprehending bodily damage could cause serious and long-term health problems. These questions are also important to ask because NFL player contracts usually contain more non-guaranteed money than guaranteed, and NFL players are expected to "be tough" and "play hurt." One could easily imagine them feeling pressured to use whatever it takes to stay on the field.

Some in the medical community believe that a rise in painkiller abuse among NFL players could prove uniquely telling. Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania and a noted expert on the intersection between sports, medicine and ethics, believes there is a potential and understudied link between painkillers and other controversial injury issues for the NFL, mainly concussions. "Painkillers are one kind of a marker of a level of injury suffered by NFL players," said Caplan. "Their level of use can indicate the toll of the game on players."

Dr. James Otis, a Boston University professor of neurology and director of the Pain Management Group at Boston Medical Center, also detects a potential link worthy of more attention, especially given the narrow dates of testing for substance abuse drugs. "Persons with impaired judgment due to multiple head injuries are more susceptible to dangerous behavior, including abuse of painkillers," said Otis. "It is very peculiar that players would only be tested for opioids during the offseason, when they would most likely use painkillers during the season."

While the NFL has taken steps to better address concussions, including the adoption of a more scrutinizing return-to-game policy for players injured by them, as well as new rules for this season concerning the hitting of defenseless players, Caplan and Otis believe that enhanced testing for painkillers would be a crucial improvement for league efforts to better understand concussions. Caplan, for instance, maintains that the NFL and NFLPA should adopt an anonymous surveillance program for players' use of painkillers. The program would run throughout the year and entail an independent laboratory testing players' blood samples to determine if they use painkillers at an abnormally high rate. "That is the only way to know with certainty if painkillers are being abused and what remedial steps, if any, should be taken," Caplan says.

To be sure, some NFL players would object to anonymous testing out of concern for their privacy. Major League Baseball's survey testing of nearly 1,200 players in 2003 was designed to be anonymous, but some names were revealed due to leaks, federal investigations and prosecutions.

Still, Otis emphasizes, improved testing of NFL players for painkillers would promote important public policies. "There is a public safety issue at stake with improper use of painkillers," he says. "When used improperly, painkillers can impair reflexes and motor skills, which can lead to players risking unnecessary injury to themselves and others on the football field, not to mention making everyday hazards, such as reckless driving, more likely."

Moreover, testing for painkillers could be constructed in such a way that it's fundamentally about protecting players' health when they likely feel pressured to play hurt, and not about catching and exposing cheaters.

Use of painkillers is also linked to steroids, though in a surprising way. As testing for steroids has become more scrutinizing, some players have likely turned to painkillers as substitute drugs. Otis highlights this unintended consequence of stricter steroids testing, saying, "Steroids have been used to relieve joint and ligament pain; if steroids are tested with greater scrutiny, it is only logical that some persons who used steroids for pain relief would turn to other forms of pain relief, including prescription opioids."

It's not a stretch to believe that abuse of painkillers by NFL players might eventually draw scrutiny from the federal government. The Food and Drug Administration recently released a comprehensive plan to reduce the misuse and abuse of pain relievers, which have been liked to hundreds of deaths each year. The topic has attracted heightened attention in Congress, as well.

Both Caplan and Otis point out that the threat of painkiller abuse by NFL players might better be remedied if their health is accorded greater social importance. "The game is partly about glorifying violence and partly about using up athletes and bringing in new ones," Caplan worries. "There is an indifference to players' health that is disturbing."

While it is a speculative prediction, painkiller abuse could very well follow steroids as the next big drug dilemma for professional sports. If so, leagues and their respective players' associations may not only have a moral obligation to agree to stricter testing, but they may also have to undertake bolder steps, such as ensuring that games are made safer, either through rule changes or equipment improvements or in other ways, so that pain itself is reduced.

Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law reading group at Yale Law School.