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The National Football League could see a long-running lawsuit brought on behalf of retired players revived for a second time by the U.S. Court of Appeals for the Ninth Circuit.

At least two of the three Ninth Circuit judges who previously revived the suit in an earlier appeal—Judges Richard Tallman and Jay Bybee—seemed sympathetic to the players' argument Thursday that the league was negligent in administering controlled substances.

Pro Football Hall of Famer Richard Dent and nine other retired players sued the league in May 2014 seeking to represent a class of more than 1,000 former players claiming that painkillers were handed out by trainers without medical licenses and without proper prescriptions at alarming rates.

Arguing for the league Thursday, Akin Gump Strauss Hauer & Feld's Pratik Shah said that retired players couldn't argue that there was an increase in the risk of harm from the league's proactive efforts to audit the types and amounts of controlled substances being administered by teams, which were subject of a separate unsuccessful suit by the players.

"That should be a jury question shouldn't it?" asked Bybee, suggesting that the league's audit could give cover to the clubs' actions or suggest there was no problem "since the NFL didn't holler." Bybee said that an assessment of whether the league's inaction in the face of its audits of team practices increased harm to players was "better reserved at least for summary judgment." Tallman, who wrote the earlier opinion reviving the lawsuit, suggested that perhaps a jury should decide whether the NFL's audit of team practices fostered compliance with state and federal drug laws or were "window dressing" or a "paper tiger in addressing the health of the players."

Thursday's argument marked the second time that the Ninth Circuit panel, which also included Circuit Judge N. Randy Smith, has reviewed a decision by U.S. District Judge William Alsup of the Northern District of California dismissing the players' claims. Alsup dismissed an earlier complaint in the case finding that the players' claims fell under the medical care provisions of their collective bargaining agreement and, therefore, were preempted by the federal Labor Management Relations Act. The appellate panel in 2018, however, reversed, finding the players were "not merely alleging that the NFL failed to prevent medication abuse by the teams, but that the NFL itself illegally distributed controlled substances"—something not covered in the collective bargaining agreement. On remand, Alsup found that the former players couldn't support their claims that the league was negligent—the sole remaining claim in the case—since they hadn't alleged the NFL itself distributed prescription medications in violation of state and federal drug laws.

On Thursday, William Sinclair of Silverman Thompson Slutkin & White, representing the players, struggled to convince Smith that any "voluntary duty" assumed by the league when it conducted team audits shouldn't fall under the collective bargaining agreement. Eventually, Tallman provided a response of his own that the league "can't contract away liability under the CBA for violating the controlled substances laws."