By Robert L. Clayton and V. John Ella
The United States Court of Appeals for the Eighth Circuit has held the NFL’s nationwide drug testing policy, contained in its collective bargaining agreement, does not supersede Minnesota state drug testing laws. Williams v. NFL, Nos. 09-2247/2462, *20, *24 (8th Cir. Sept. 11, 2009). In so holding, the court has struck a blow at the NFL’s intent to have a league-wide uniform drug testing policy.
The Williams case started when the NFL suspended Minnesota Vikings players Pat Williams and Kevin Williams for testing positive in 2008 for bumetanide, a diuretic banned by the NFL’s Policy on Anabolic Steroids and Related Substances. Id. at *6. The NFL banned bumetanide, a prescription drug, because it could mask the presence of steroids. Id. at *5. Both players were suspended for four games and told they would be subject to ongoing drug testing based on their positive tests. Id. at *6.
Prior to the players’ positive test results, the NFL had found bumetanide in a legal over-the-counter product called StarCaps. Id. at *5. While the StarCaps label did not list bumetanide as being in the supplement, the NFL conducted an independent analysis of StarCaps and found bumetanide. Id. The NFL did not publicize that StarCaps contained the banned drug. Id. at *6.
Under Minnesota law, an employer cannot discipline an employee for using “lawful consumable products…off the premises of the employer during nonworking hours.” Minn. Stat. §181.938 subdiv. 2. The NFL’s Steroid Policy, though, clearly bans many such legal substances as Propecia, Ritalin, Adderall, and Sudafed. Additionally, Minnesota law requires employers give employees an opportunity to attend drug counseling before being disciplined for a first-time positive drug test and contains a number of other strict requirements. Minn. Stat. §181.952. The court held that the NFL policy did not preempt the Minnesota statute even though the policy was part of collective bargaining under the federal Labor Management Relations Act. Williams, at *20, *24.
The NFL has filed a request for reconsideration of the court’s decision. The League is attempting to avoid having players from different teams being subject to different drug testing rules. In light of the upcoming collective bargaining sessions, the NFL and the National Football League Players’ Association (“NFLPA”) will have significant challenges ahead of them in crafting a new policy. If the court declines to overturn its holding, it will be difficult to create a stringent uniform policy on the use of drugs and steroids in the NFL.
Drug policies of employers in other industries may have to comply with state laws and regulations and, in certain industries, federal laws and regulations, even where a company has entered into a collective bargaining agreement with one or more unions. Such laws and regulations often leave room for negotiations in certain aspects of labor management relations, such as discipline and discharge.
A collective bargaining agreement, like an employment handbook, deals with workplace rules and state laws. A collective bargaining agreement may limit remedies for certain state causes of action, but a collective bargaining agreement generally cannot contract away independent statutory rights, and so far, the NFL has been unsuccessful arguing that its collective bargaining agreement and associated drug policy trump state law. The professional sports industry is like no other, however. The NFL argues that it needs one unifying drug policy with universal standards for banning and testing for recreational drugs and performance enhancing substances. Other multi-state employers do not encounter the same problems as professional sports leagues. In professional sports, “employees” from one team physically compete with “employees” of another team. This dynamic does not generally exist outside professional sports. If different drug policies apply to each team, one team could have a significant advantage over the other because its players would not be prohibited from using performance-enhancing steroids or other substances. This undermines the perception of fairness that is essential for the league to retain credibility and loyalty among fans. Thus, Williams threatens to have a corrosive effect on the league’s image.
The NFL also may lose some of its control over penalties for player violations of the drug policy. The current collective bargaining agreement contains league-mandated discipline for violations of the drug policy. If the decision remains, each team will have to follow its own state and local laws, some of which prohibit terminating certain first-time violators of the drug policy. Clearly, the NFL does not want players on certain teams to have a free pass to violate the drug policy while others are held strictly liable for the substances in their bodies.
The NFL’s best prospect for change is likely asking Congress to intervene. If Congress acts to create a national standard for drug testing in professional sports, the NFL’s program will be able to survive, along with similar programs in baseball, basketball and hockey.
Jackson Lewis LLP announced earlier this month that it has hired Robert Lloyd Clayton as a Partner in its Washington DC Region office.
Robert Clayton is a leading labor law practitioner for Jackson Lewis LLP. He has special expertise in college and university compliance issues. V. John Ella is of counsel in the Minneapolis office of Jackson Lewis LLP.
