Analysis: Examining the Federal Judge’s Thinking in NFL Drug Testing Case

Dec 19, 2008

By Robert J. Romano, Esq.
Minnesota Vikings’ Kevin Williams and Pat Williams and New Orleans Saints’ Charles Grant, Deuce McAllister and Will Smith were each suspended for four games after testing positive for the banned substance bumetanide, an ingredient found in the dietary supplement StarCaps. Bumetanide in know to be and can be used as a masking agent for anabolic steroids.
The players’ defense was that bumetanide was not a listed ingredient in StarCaps and that StarCaps was not specifically listed on the NFL’s banned substance list.
The NFL and Commissioner Roger Goodell acknowledged that the players’ claim had been considered but was rejected during the hearing process set forth in the Collective Bargaining Agreement. After a hearing, it was determined that the players involved violated the league’s policy governing anabolic steroids by using “blocking” or “masking” agents, which include diuretics and water pills. And, since the use of these agents is prohibited and a positive test will not be excused because it results from the use of a dietary supplement that unknowingly contained a banned substance, each player was properly suspended.
In a surprising move, U.S. District Judge Paul Magnuson extended his preliminary injunction against the NFL’s suspension of the five players, a move which allows them to return to the playing field. Judge Magnuson found that the players will likely succeed on their claim that the NFL breached its duty to the players by failing to share what it knew about StarCaps. Interestingly, Judge Magnuson’s decision was not based upon the usual legal standard for preliminary injunction, a showing of irreparable harm.
This may not be all that Judge Magnuson is confused about. As stated, this matter was arbitrated according to collectively bargained policies agreed to by the owners and players. There was an initial ruling, the players appealed and were granted hearings and a final decision was made. There is no need or justification for judicial review.
Article XI of the NFL Collective Bargaining Agreement provides that: All disputes involving a fine or suspension imposed upon a player involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, but the player then has twenty days to appeal such action taken.
Article XXVII Impartial Arbitrator, Section 3 provides that: Rulings of the Impartial Arbitrator shall upon their issuance be final and binding upon all parties.
In addition, and most importantly, per Article XI: following the conclusion of such appeal hearing, the Commissioner will render a written decision which will constitute full, final and complete disposition of the dispute and will be binding upon the player(s) and Club(s) involved and the parties to this Agreement with respect to the dispute.
Therefore, it is conclusive that per the Collective Bargaining Agreement between the NFL and the NFL Players’ Association that any decision by the Commissioner and any rulings of an impartial arbitrator are full, final and binding upon all involved. There is no right for a party to appeal to either a state or federal court.
In fact, courts have routinely show deference to the interpretation and decisions of both League Commissioners and arbitrators and have been of the opinion that it is not the business of the courts to interpret the rules, or in this case, the CBA, between private associations.
Specifically, in the matter of Holmes v. NFL, 939 F.Supp. 517, (N.D. Tex, 1996), the court stated that the arbitrator was only bound by the procedures established in the collective agreement and held that the decision should not be disturbed if it draws its essence from the collective bargaining agreement and is not based on the arbitrator’s own brand of industrial justice.
Additional case law indicates that judges are not inclined to overturn League Commissioners’ decisions, especially about drug use, that are believed to threaten the integrity of the game. Most finding that the players’ union can seek to include in its collective agreement some restraints on such authority, including review of an arbitrator’s decision.
However, Judge Magnuson found that this case has more substance to it than its predecessors. He found the players made a persuasive case that Jeffrey Pash, the NFL’s chief lawyer who presided over the players’ arbitration hearings and ultimately upheld the four-game suspensions, was not a neutral party or in other words, an impartial arbitrator. But how was Mr. Pash chosen as the arbitrator to preside over this appeal.
Per Article XXVII Section 1 of the CBA: Parties shall select one of the Non-Injury Grievance Arbitrators who shall concurrently serve as the Impartial Arbitrator. If the NFLPA, on behalf of the players, selected Mr. Pash, it is disingenuous now to cry foul when things did not work out in their favor.
If Mr. Pash was selected to preside over this matter per Article XXVII Section 7; In the event that the NFL and NFLPA cannot agree on the identity of the Impartial Arbitrator, the parties agree that the Arbitrator shall be randomly selected from the then-currently serving Non-Injury Arbitrators – and the Judge finds he was not a neutral party, the Judge may be of the opinion that Mr. Pash’s presiding over the matter was against public policy and legal cause exists to have the arbitration finding set aside.
It would be judicial overreaching to find such and overturn the arbitration. It is not the courts place to supervise or vacate every judgment or arbitration award that comes into place. By doing such, the commissioner’s office would be irreparably damaged since it is their core function, per the Collective Bargaining Agreement, to handle disciplinary issues. Setting aside the arbitration finding would permanently put the authority of the commissioner’s office in question and make the powers of the office negligible. All parties involved followed proper procedure and it is not in the best interest of the game for a U.S. District Court in St. Paul, Minnesota to intercede. Then again, home field advantage has always been predominating in the NFL.
Robert J. Romano is the founding partner of THE ROMANO SPORTS AGENCY, which specializes in representing NCAA and Professional League Coaches in all aspects of contract negotiations. For more information, visit his web site at, or contact him at


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