By Phil Breaux
The professional sports leagues and respective clubs have broad rights to discipline players in the leagues. Players can be punished in a number of ways for a wide variety of offenses on and off the field. A common sanction is the imposition of a monetary fine.
One source of authority to impose a fine in the NFL and NBA is the player’s contract. The NFL Player Contract, Section 7, Deductions, acknowledges that the player will pay, “…properly levied Club fine or commissioner fine against Player …” The NBA Uniform Player Contract, Section 5, Conduct, authorizes the team and the Commissioner to impose fines for violation of team or league rules.
Authorization for the imposition of fines is also found in the leagues’ collective bargaining agreements (CBAs). The NFL’s CBA, Article VIII, Club Discipline, provides for fines for a wide range of offenses including: $400 per pound for being overweight, $1,500 for throwing a football into the stands, $14,000 for late reporting to camp and one week’s salary for conduct detrimental to the Club. (The figures are for 2006 which were increased 10% for each year thereafter.)
The NBA’s CBA also provides for fines. Article VI, Player Conduct, states that a player “shall be fined $10,000…” for failure to attend a mandatory program. Article XIII, Circumvention, imposes fines that range from $2,500 to $3,500 for violation of disclosure provisions. Article XXXIII, Anti-Drug Program, imposes fines from $10,000 to $15,000 for a failure to comply with the league’s drug policy.
Levying a fine against players in the NFL and NBA is a routine practice. Although players often challenge the merits of a fine in a particular case, the right of a league or club to levy a fine is rarely questioned.
Louisiana Law Prohibiting Fines
In Louisiana employers are prohibited from imposing fines on employees. Louisiana Revised Statute 23:635 states:
No person, acting either for himself or as agent or otherwise, shall assess any fines against his employees or deduct any sum as fines from their wages. This Section shall not apply in cases where the employees willfully or negligently damage goods or works, or in cases where the employees willfully or negligently damage or break the property of the employer, or in cases where the employee is convicted or has pled guilty to the crime of theft of employer funds, but in such cases the fines shall not exceed the actual damage done
Although the employee who is subjected to an unlawful fine in Louisiana surely has the right to recover the funds, the legislation does not provide a direct remedy to the employee. Rather, a violation of La. R.S. 23:635 is deemed a crime with punishment of imprisonment for up to three months or, interestingly, a “fine” of up to $100.
Whoever violates the provisions of R.S. 23:634 or R.S. 23:635, shall be fined not less than twenty-five dollars nor more than one hundred dollars, or imprisoned for not less than thirty days nor more than three months. (La.R.S.23:636).
Given the prohibition of fines as provided in R.S.23:635 can the professional leagues and clubs in Louisiana circumvent the state’s (criminal) law by virtue of a contract or CBA?
R.S.23:635 has only a few exceptions, that is, willful damage to goods or property and theft. Some cases have, however, narrowly applied the law. In Hanks v. Shreveport Yellow Cab,187 So. 817 (App. 1939), the court held that the statute was “penal” in nature and had to be strictly construed in favor of the employer. In Stell v. Calor, 223 So.2d 423, (App. 3rd Cir. 1969) the court found that a deposit by employees to insure the return of equipment was not a “fine” and in Cupp v. Banks, 25,762 (La. App. 2nd Cir. 5/4/94) 637 So.2d 678 the employee’s payment was permitted as reimbursement for damaged equipment. In Stoll v. Goodnight Corp. 469 So.2d 1072, (App. 2nd Cir. 1985) the court found the employee voluntarily agreed to repay a moral obligation and in Samson v. Appollo Resources, (C.A.5th La. 2001), 242 F.3629, the court held that wage deductions for willful absences were not a fine, but an adjustment of the wages due. The fact that the sanction is a criminal, rather than civil, action may influence the courts to limit the application of the law.
Although there are no known criminal prosecutions for violation of the law, courts have applied the law in favor of employees in some civil actions: See, Brown v. Navarre Chevrolet, 610 So.2d 165, (App. 3rd Cir. 1992); Hebert v. State, 448 So.2d 882, (App. 3rd Cir. 1984); and Glover v. Dining Services, 577 So.2d 1103, (App. 1st Cir. 1991).
State Law Not Preempted by CBA
Two Louisiana cases that did not address the issue of “fines” but that are relevant to this discussion are, Evans v. Manville Products, 18609, (App. 2nd Cir. 1987), 505 So.2d 924, and Aguillard v. Crowley Garment, 01-593-4, (App. 3rd Cir. 2002), 824 So.2d 347. In both cases the courts were required to reconcile conflicts between collective bargaining agreements and Louisiana law. The statute at issue was R.S.23:631 which requires employers to pay employees wages within a certain time after discharge. In each case the courts held that the collective bargaining agreements did not preempt state law.
In Evans the court refused to compel the employees to go through a grievance procedure as set forth in the collective bargaining agreement to challenge a vacation pay forfeiture policy. The Evans court relied on Barrentine v. Arkansas-Best Freigh System, 450 U.S. 728, (1981) which held that “a statute enacted to provide minimum substantive guarantees to individual workers may supersede collective bargaining agreements.” The Evans court also noted that the collective bargaining agreement provided that any provision in the agreement would yield to a conflicting law.
Aguillard also involved a dispute over vacation pay and the application of the collective bargaining agreement. The court rejected the defendants’ arguments that the plaintiffs’ claims were preempted by Section 301 of the Labor Management Relations Act. The court in Aguillard held that a wage payment claim will not be preempted where the provisions of the collective bargaining agreement require no interpretation, citing Balcorta v. Twentieth Century-Fox Film Corp. 208 F.3d 1102 (9th Cir. 2000). Arguably, no interpretation is necessary with respect to the imposition of fines in the CBAs of the NFL and NBA and the provisions authorizing the fines would not preempt the (criminal) law prohibiting that very action.
Williams v. NFL
A recent Minnesota case is also relevant to this discussion. In the fall of 2008 the NFL notified Kevin Williams and Pat Williams of the Minnesota Vikings and some other players, including some on the New Orleans Saints, that their drug tests revealed traces of bumetanide, a banned substance. Bumetanide is an undisclosed ingredient in a weight loss pill, StarCaps, that some of the players admitted taking. The players’ appeal of a four-game suspension was denied by the league’s legal officer. Kevin and Pat Williams filed suit and alleged the NFL’s drug policy conflicted with Minnesota state law. (The case is often referred to as the StarCaps litigation.) The case started in state court, but was moved to federal court. A temporary injunction from enforcement of the suspensions was granted pending the outcome.
The NFL argued that its drug policy as set forth in the collective bargaining agreement preempted Minnesota state law. Although the federal court dismissed most of the players’ claims it rejected the NFL’s claim that the CBA preempted state law pursuant to section 301 of Labor Management Relations Act. Williams v. NFL, 582 F.3d 863, (8th Cir. 2009). That ruling was a significant setback for the NFL who argued that the application of state law to its drug testing procedure would prevent it from achieving a uniform drug policy. The NFL has petitioned the U.S. Supreme Court for review and is seeking congressional action to address the issue.
The Williams’ case was remanded to the Minnesota state court for resolution of the remaining issues of state law. In May 2010, the state court ruled that the NFL had violated Minnesota law, but that the players had not been damaged. The judge refused to keep the injunction in force. Williams v. NFL, Fourth Judicial District, Minn., No. 27-CV-08-29778 (2010). Setting the injunction aside was another win for the NFL. But, that victory also came at a price. The state court ruled that the NFL was an employer of the players and as such, subject to Minnesota’s employment laws.
Louisiana Employee Drug Testing Law
Louisiana, like Minnesota, has laws that pertain to drug testing of employees. Unlike the Minnesota law, however, Louisiana Revised Statute 40:1002 (F) specifically exempts the NFL and the NCAA, from the law.
This chapter shall not apply to drug testing conducted by the National Collegiate Athletic Association (NCAA) or the National Football League (NFL).
The NBA is not included in the exemption. The omission is probably due to the fact that when the law was enacted Louisiana did not have an NBA franchise. Regardless, the omission provides an avenue for players on the Hornets to challenge the NBA’s drug policies, as was done in the Williams case, if it conflicts with Louisiana’s employee drug testing law.
Remedies
To ensure that their Louisiana players are subject to the uniform policies with respect to fines and drug testing, the NFL and NBA should consider legislative action to amend R.S. 23:635 to exclude employees of the NFL and NBA. To avoid the moral and constitutional argument that the professional players are being exempted from criminal laws R.S. 23: 636 could be amended to provide for a civil, not criminal sanction, for violations of R.S. 23:635. With respect to drug testing, the NBA should consider an effort to have R.S. 40:1002 amended to add the league as an exempt party.
Conclusion
If the league or team “fines” a player for the Saints or Hornets it is highly unlikely that a criminal action will be filed. R.S. 23:635 is, however, clear–employers are prohibited from fining players except for the specified exceptions in the statute. The statute and the decisions in Evans and Aguillard suggest that the Louisiana law prohibiting the imposition of fines may not be circumvented by an employment contract or CBA. The Williams case, although from another state, also rejected the argument that the state law was preempted by the CBA. Legislative action might be appropriate to insulate the NFL and NBA policies on fines from challenges based on Louisiana law. Legislative action should also be considered to exempt the NBA from Louisiana’s employee drug testing law.
Phil Breaux is a sports law professor at Louisiana State University and author of Introduction to Sports Law and Business.
