By Robert Clayton and V. John Ella
At this point, it is not clear who is less likely to start the next season for the Minnesota Vikings, defensive tackles Kevin Williams and Pat Williams, who are in the midst of a lawsuit with the National Football League (“NFL”), or veteran quarterback Brett Favre, who has not yet announced if he will return.
The lawsuit brought by the two Williamses (unrelated) against the NFL challenges their 2008 suspension for testing positive for “StarCaps,” a diuretic banned by the League. The players’ case is based on a drug testing law unique to Minnesota known as DATWA (the Drug and Alcohol Testing in the Workplace Act). DATWA prohibits “employers” from drug testing employees unless certain requirements are met. Trial in the case started in Minnesota state court on Monday, March 8, 2010.
The case was cleared to go to trial after surviving the NFL’s motion for summary judgment. In a 44-page decision issued by Judge Gary Larson of Hennepin County District Court on Feb. 18, 2010, the court declined the League’s request to dismiss claims under DATWA. It, instead, suggested the primary dispute left for trial will center on whether the NFL is properly considered an “employer” under common law, and thus subject to the statute. The court found the record insufficient for it to determine whether the NFL was the plaintiffs’ employer for purposes of DATWA. It was unclear, according to the court, whether the Minnesota Vikings is the plaintiffs’ sole employer, or whether the NFL and Vikings are properly considered joint employers. The NFL, it noted, exercises control over players’ work conditions, schedules, and instituted rules, regulations, structure of compensation, drug testing and discipline. However, the court found the record lacked information as to what control, if any, the NFL had over the mode of payment, control of fields, vendors and uniforms, who pays for royalties, who pays bonuses for the Pro Bowl or Superbowl, and other issues important to the determination.
Interestingly, the court noted that in a case pending before the United States Supreme Court, American Needle v. National Football League, the NFL has argued it should be considered as a “single entity” for some purposes, which would seem to hobble its arguments in Minnesota state court.
If the NFL is considered a joint employer, the court has already concluded that, as a matter of law, it did not comply with some provisions of DATWA. The court dismissed the plaintiffs’ parallel claim under Minnesota’s lawful consumable products statute. That statute prohibits an employer from disciplining an employee for off-duty use of a lawful product, like tobacco or alcohol. Because the players were “on duty” when they tested positive for StarCaps, the court reasoned, the statute did not apply to them.
In a last-minute play following the order denying their motion for summary judgment, the NFL, in early March, attempted to return the case to federal court, even though the federal court had previously remanded the matter to state court. On March 4, 2010, U.S District Judge Paul Magnuson denied the motion, saying the League’s request “seem[ed] calculated only to avoid trial on the merits” and “border[ed] on abuse of process.”
At press time, the case started its first day of trial and the Williamses were scheduled to take the stand. Judge Larson ruled that Vikings Coach Brad Childress would be allowed to testify later in the week about whether he leaked the results of the Williamses’ drug testing results to the media. A request to have Commissioner Roger Goodell testify was taken under consideration.
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.
