By Sonny Hoang
D.J Williams could easily miss half of the 2012 season due to the possibility of multiple suspensions stemming from his second DWI conviction in Colorado and his violation of the league’s policy regarding anabolic steroids and related substances. The policy “penalizes any effort to substitute, dilute or adulterate a urine specimen, or to manipulate a test result to evade detection.” Williams v. Nat’l Football League, 12-1255, 2012 WL 3642839 (10th Cir. 2012). Unfortunately for D.J., the urine samples he provided his collector in August, September, of 2011 were “determined not to be a human specimen” because they “showed no endogenous steroids” and, during his third test in November of that same year, “a bottle fell to the floor … [then] Mr. Williams immediately kicked the bottle out of the restroom towards his locker.” Id at 4. His repeated attempts to sidestep the League’s policy led to a six game suspension that has been upheld by an arbitrator on January 2012, then affirmed by the District Court of Colorado on May 4th, 2012, and affirmed again by the 10th Circuit on August 27th, 2012. The speed at which his case moved through the system demonstrates how high the facts and evidence are stacked against him.
In addition to his questionable drug tests, a Denver jury recently returned a guilty verdict relating to his November 12, 2010 arrest for driving under the influence. Jury finds Broncos linebacker D.J. Williams guilty of DWAI, Denver Post August 15th, 2012. Luckily, he was able to bring the conviction down to the lesser offense of driving while ability impaired. However, it is still his second such conviction in seven years and, consistent with previous rulings regarding multiple infractions of the NFL’s substance-abuse policy, he will likely receive a two to four game suspension from Commissioner Roger Goodell. If this is added to his current six game suspension, he will miss a minimum of half the 2012 season.
The NFL has shown leniency if a player takes accountability for his mistakes, but multiple transgressions will generally result in a more severe penalty. Michael Vick spoke about Commissioner Goodell at the Rookie Symposium on June 26th, 2012 and advised rookies that if they “get into trouble, [to] be honest, truthful, forthright. Don’t play with this man . . . the minute you cross him, he’ll be all the way turned up.” Unfortunately for D.J., he crossed this man when he got caught trying to cheat his drug test, then he lied about it. Now he has been convicted of his second DWAI and second violation of the League’s substance-abuse policy, so we can expect that Roger Goodell will get “all the way turned up” to the tune of an additional two to four game suspension on top of the six games he will already be missing.
D.J. Williams’ appeal of his suspension was futile because arbitration awards are given broad discretion by federal courts.
As a matter of law, “an arbitration award may be vacated [by a court of law] if the arbitrator strays from interpretation and application of the agreement and effectively dispenses his own brand of justice” by exceeding his powers, violates public policy, or manifestly disregards the law. This is an extremely stringent standard for reversal based on the premise that both parties to the arbitration chose the arbitrator and, must therefore, live with his decisions. In other words, D.J. Williams and the NFL Players Association (NFLPA) cannot complain about an arbitrator’s unfavorable decision because they had a hand in choosing the man or woman presiding over their case. This is true unless there is a blatant and flagrant mistake by the arbitrator in which the arbitrator knew the law, but disregarded it in his or her decision. Players and their lawyers need to realize that it will be very difficult to overturn a decision from an arbitrator that they have chosen pursuant to the Collective Bargaining Agreement (CBA), to which they agreed to in 2011. This has recently been confirmed by the United States Court of Appeals for the 10th Circuit which stated that “a court’s role in these types of arbitration cases is simply to determine whether the arbitrator strayed from the collective-bargaining agreement and effectively dispensed his own brand of industrial justice.” (internal quotations omitted) The court concluded, “for substantially the same reasons announced in the district court’s thorough and well-reasoned order granting summary judgment that Mr. Williams has failed to show such a wholesale abandonment of the collective bargaining agreement.” Many players have expressed their dismay over the unilateral disciplinary powers granted to Roger Goodell, but they signed the CBA and must abide by it for the next decade.
Players need to recognized a losing battle and cooperate with Commissioner Goodell when they get caught red handed.
In D.J. Williams’ anabolic steroid case, there is an overwhelming majority of evidence against him, so he should have accepted his initial punishment, been honest and cooperated with Commissioner Goodell, and hoped for the best. That is exactly what Ryan McBean did as a joint plaintiff in this same case and he settled for a more favorable three-game suspension. Instead, D.J. Williams failed two drug tests two months in a row using animal urine, and then got caught tampering using a foreign vial during his sample collection on his third drug test in four months. Subsequently, he tried to place the blame on the sample collector by denying that he ever signed the seal on his urine specimen even though it matched 15 other copies of his signature that the NFL’s lawyers produced. He also alleged that somebody must have tampered with his sample during the three-hours that it was unsupervised. However, he never showed a motive for anyone to tamper with his sample and named only the unfortunate sample collector as a suspect. He had three chances to pass his anabolic steroid test, and he got caught “involved in three separate incidents of attempted substitution of a specimen.”
District Court Judge Arguello knows her football.
Additionally, Williams tried to dismiss the case because the “arbitrator failed to render a decision within the timeframe contemplated by the steroid policy.” With respect to this technicality, he claimed that a delay in handing down his arbitration decision barred him from serving his suspension in the 2011 season instead of the 2012 and would cost him larger game checks. Regrettably for him, the federal Judge, Arguello, was savvy enough to note that he waited over a month to complain about the delay in a decision and his complaint was filed two days after the Broncos were eliminated from the 2011 playoffs. She noted that if he had been handed an earlier decision, he would not have been available for the Bronco’s two playoff games against the Steelers and Patriots. Judge Arguello found it hard to believe that he would rather have missed the playoffs then the first six games of the 2012 season to which the 10th Circuit concurred. Moreover, the 10th Circuit affirmed that delaying decisions at the request of the parties in order to afford an opportunity to explore an agreed resolution of the dispute is consistent with past practices and is not grounds for dismissal of the decision. See Williams, 12-1255, 2012 WL 3642839 (10th Cir. 2012) at 4.
D.J. should have raised all of his defenses when he had the chance.
Williams complains that the NFL’s general counsel, Mr. Pash, had ex parte communication with the arbitrator and that violated civil procedure in this matter. Regrettably, Williams did not raise this defense until after the arbitration decision was ordered. The 10th Circuit opines that “it is well settled that disgruntled losers cannot first raise their objections after an award has been made. A party cannot remain silent, raising no objection during the course of the arbitration proceeding, and when an award adverse to him has been handed down complain of a situation of which he had knowledge from the first.” Id. at 8. This quote from past decisions bars Williams’ complaint based on ex parte communication that he learned of in January of 2012. His failure to contemporaneously object to the ex parte communication upon learning of it constituted a waiver of that objection.
Multiple violations of the NFL’s substance-abuse and player conduct policy will earn a player significant suspensions.
The most recent DWAI is D.J. Williams’ second since he plead guilty to one in 2005. Players, teams, and the public should know by now that Roger Goodell has made cleaning up player conduct a priority during his regime as Commissioner. A first offense is generally met with a slap on the wrist because everybody makes mistakes, but a second offense is almost always accompanied with a significant suspension. This will be the case with D.J. Williams’ second DWAI conviction. When determining punishments, Roger Goodell takes all of the player’s past conduct into account and previous transgressions will compound the suspension, so we can expect D.J. to miss at least half of the 2012 season. He can appeal his suspension to the Commissioner, but I would not recommend going to federal courts again until after the Bounty suspensions are decided since the CBA has given Roger Goodell broad discretion with respect to player conduct with regards to conduct detrimental to the League.
Take home lessons from D.J. Williams’ mistakes.
There are several lessons that players can learn from the D.J. Williams story. First, animal urine is not the same as human urine; second, if you get caught the first time, stay off performance enhancing drugs and pass the second or even third test; third, the federal courts will probably decline to overturn the decision of an arbitrator that you helped choose pursuant a collective-bargaining agreement that you signed; fourth, multiple transgressions will always net you a harsher punishment. These are all key points for players to keep in mind and it will be accentuated by the fact that D.J. Williams will miss half of the season in which he has the best chance at a Super Bowl now that Manning is at the helm of the Broncos.
