NFL Blind-sided by Federal Judge’s Decision

Dec 19, 2008

A federal judge’s decision last week to extend an injunction, allowing several NFL players to continue to compete for their respective teams despite testing positive for a banned substance could have significant ramifications for the NFL and its drug testing policy.
The NFL has always clung to the notion that players are responsible for what they put in their bodies, even if the banned substance is part of an otherwise legal supplement. This “strict liability” stance has even been agreed to by the NFLPA in the Collective Bargaining Agreement.
“Strict liability” is common with drug testing policies in international and professional sports, Matt Mitten, the Director of the National Sports law Institute, told Sports Litigation Alert.
But in the decision at hand, District Judge Paul A. Magnuson found that the NFL may have breached its duty to the players because it had enough evidence that the dietary supplement StarCaps contained the banned diuretic bumetanide, and that that information should have been disclosed.
In actuality, the NFL did warn the players that dietary supplements may contain banned supplements. “One of the questions for the court is whether than warning was specific enough, especially since the league apparently had actual knowledge about StarCaps,” said Mitten.
The court, however, seemed to find that the warning was too general. “Suspending a player for testing positive for a banned substance when there are such substantial questions about the facts and circumstances surrounding the specific supplement at issue irreparably harms the player,” Magnuson wrote.
The dispute began when Jeffrey Pash, the NFL’s chief legal counsel, suspended Kevin Williams and Pat Williams of the Minnesota Vikings as well as Charles Grant, Deuce McAllister and Will Smith of the New Orleans Saints after they tested positive for bumetanide.
The plaintiffs appealed the ruling. But their claim was denied in an arbitration hearing, presided over by Pash.
The plaintiffs ultimately sued, naming Dr. John Lombardo, administrator of the league’s steroid policy; Dr. Bryan Finkle, a consulting toxicologist; and Adolpho Birch, vice president of law and labor policy for the NFL, who oversees the policy. All three men report to Pash.
After issuing a temporary injunction on December 5, Magnuson took a closer look at the legal issues, focusing, not only on whether the NFL should have disclosed what it knew about the banned substance, but also on whether Pash’s role in the matter could have been deemed impartial.
“The NFLPA has succeeded in establishing that a substantial question exists as to whether Mr. Pash’s connection to the allegations in this case prejudicially affected the award,” wrote the court. “Although Mr. Pash’s decisions are well reasoned, he glossed over the rather shocking allegations the NFLPA makes. Moreover, he did not take into account Lombardo’s testimony that, even if asked about StarCaps in particular, he would merely warn the player away from supplements in general. Such testimony calls into question the very basis of the NFL’s position on banned substances. The NFL maintains that its strict liability policy is fair in part because players may contact either Lombardo or the Hotline with questions about specific supplements. If players cannot get answers to their questions, however, they cannot determine which supplements are permissible and which are not.
“While it is true that the NFL discourages the use of all weight-loss supplements, such supplements are not forbidden and the players reasonably expect to rely on the advice of Lombardo and the Hotline with respect to such substances. Mr. Pash’s failure to take Lombardo’s testimony into account is substantial evidence that the arbitration award was prejudiced by Mr. Pash’s partiality. The NFLPA is entitled to a preliminary injunction to preserve the status quo until a full hearing can be held on the issue of Mr. Pash’s partiality and the effect of any partiality on the arbitration awards at issue.”
Mitten said the fact that Pash would be an arbitrator is unusual in agreements between unions and leagues. “This will absolutely be a negotiating issue when the CBA is up,” he said.
Opinions, predictably, varied on the impact of the decision.
Stephen Ross, director of Penn State’s Institute for Sports Law, suggested to the media that the court’s decision was “terrible in that any decision by an in-house arbitrator is subject to challenge in federal court, and it’s almost impossible to adopt a strict liability policy.
“Its way more important for the league to get the decision reversed than prohibiting guys who are probably unfair victims from playing football,” he added.
Dennis Devaney, a Detroit-area labor lawyer and former member of the National Labor Relations Board, was optimistic that the league would ultimately succeed, telling the Minneapolis Star-Tribune that “the policy may well be upheld because it arises out of the essence of a collective bargaining agreement, that the federal courts shouldn’t be allowed to fiddle around with.”
NFL spokesman Greg Aiello issued a cautious statement from the league: “This is consistent with the approach the judge has taken in giving careful consideration to these issues, which we fully respect.”


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