By: Andrew Riley, Ruling Sports Intern, Twitter: @buriedtalents
Recently, the Federal Drug Enforcement Administration (DEA) ended their two-year investigation into the medical staffs of the San Diego Chargers and San Diego Padres. The investigation focused on the integrity and reporting requirements of the supply chain for the prescription drug program. As a result of this investigation the pharmaceutical supplier for both teams, RSF Pharmaceuticals, has surrendered its federal registration needed to continue operation. Moreover, the DEA stated that the teams are now in compliance with regulations. There is no indication, as of today, that there will be charges or sanctions against either team under the Controlled Substance Act (CSA). A general overview of the relationship between the pharmacies and the teams will be described, followed by analysis of the applicable law, and the potential implications of this investigation.
The DEA investigation focused on five entities involved in the supply chain of prescription drugs in the San Diego area. The entities were RSF Pharmaceuticals, RSF Manufacturing, Sportpharm Pharmaceuticals Inc., the San Diego Chargers and Padres. Allegedly, RSF Pharmaceuticals would buy the drugs from a wholesaler; the drugs would be transferred to RSF Manufacturing where it was stamped with the Sportpharm label; Sportpharm would then ship the drugs to the purchaser, in this case the Chargers and Padres medical staff.
Reports suggested that the investigation was initiated when former San Diego Chargers safety, Kevin Ellison, was found to be in possession of 100 pills of painkillers during a traffic stop in May of 2010. However, the complaint against RSF Pharmaceuticals states that the investigation actually began a month earlier when a phone call was allegedly received describing the alleged activities. The investigation concluded that the painkillers Ellison had in his possession were not from the San Diego Chargers.
The DEA began its investigation was because RSF Pharmaceutical was a registered company with the DEA, however it had not recorded any sales or movement of drugs under its current registration number. Moreover, neither RSF Manufacturing, nor Sportpharm were registered with the DEA or the Pharmacy Board of California. The CSA requires that every manufacturer, wholesaler, or dispenser needs to be registered with the DEA. Also, every time dangerous drugs are transferred to a manufacturer, wholesaler, or dispenser, it must be registered with the DEA and all information associated with the exchange needs to be recorded and filed where it can be easily audited.
Another issue reportedly spurring the investigation was that the doctor for the Chargers, Dr. Chao, allegedly accepted a large number of prescriptions dispensed by RSF Pharmaceuticals, wherein he was allegedly listed as the user. Such a practice is not allowed under state law.
The purpose of the CSA’s registration and reporting requirements is to ensure that dangerous drugs do not reach the illicit market. To explain further, the purpose for maintaining a closed supply chain is guard against diversion. At the core of all the regulations, including the registration and reporting requirements, is to lessen the chance of abuse of dangerous drugs. There is less of a chance of abuse if the drugs are kept in the closed supply chain and used for a “medical purpose”. The DEA uses a broad definition of “medical purpose.” The effect of using a broad definition makes recreational or illicit use to be classified as a non-medical purpose but allows for discretion in instances when there are reporting indiscretions but the drugs are still likely being dispensed to those within the supply chain. For example, a shipment that is diverted from the closed supply chain will likely be dispensed on the black market from a dealer for illicit purposes. Whereas, where there are reporting irregularities a doctor is still dispensing prescription drugs for those who, presumably, require it for their health. This explains why the DEA is willing to work with the teams to ensure compliance in the future as oppose to seeking punishment.
What is the significance of this investigation to the sports world? For teams, it could be as simple as enforcing the importance of maintaining proper records so that there is no significant loss of revenue to lawsuits or fines, as well as to avoid potential issues that could interfere with daily operations of the organization. For example, if the organization is no longer able to dispense medication to its players, then players’ ability to play and their health could be hampered. At the other end of the spectrum, the reporting shortages of prescription drugs, for the NFL in particular, may affect the current concussion lawsuits against the NFL. Without delving too much in to the intricacies of that litigation, at its core, the suit alleges that the NFL was negligent when it hid brain injuries from the players. Hiding the brain injuries caused further problems later in life for the players. What if there was another possible cause to either the brain injuries and the problems later in life, such as prolonged use of painkillers for example. Potentially, it could mean that the players (plaintiffs) could not establish a proximate cause to their injuries, which would be fatal to their case. If the issue of the case against the NFL involved broken legs instead of brain injuries then it would be much easier to determine proximate cause since broken legs are obviously impact injuries. Brain injuries, however, are not clear. The number of ex-athletes who have donated their brain for research, and how much money the NFL has donated to the cause demonstrates this concept. Alternatively, painkillers have be researched and tested significantly and warn against many of the symptoms complained of by players after extended use.
The investigation by the DEA against the Chargers and Padres for non-compliance of reporting requirements for prescription drugs can impact the above theory because if the supply chain ends at the team doctor then it will be difficult to track which players may have received a significant amount of painkillers. If it were impossible to track those who may have used certain drugs for a significant length of time then it would be difficult to conclude that the extended use of painkillers was a possible cause of the brain injury.
Ultimately, the significance of this investigation may simply rest in the importance of being diligent in the reporting standards and not have any impact whatsoever on external litigation. If so, taking the proper steps to ensure that no dangerous drugs enter the illicit market is an adequate reason to promote compliance.