A lawsuit brought in federal court by two NFL players has been sent back to state court. Kevin Williams and Pat Williams (no relation) of the Minnesota Vikings filed suit against the NFL in December 2008 in an attempt to avoid a four game suspension.
The players were suspended along with three New Orleans Saints players after testing positive for bumetanide. Bumetanide is a diuretic that is banned under the NFL Policy on Anabolic Steroids and Related Substances because it is often used to mask steroids. The players proved that bumetanide is an ingredient in an over-the-counter weight loss supplement known as StarCaps. The Vikings players admitted to taking StarCaps, which did not include bumetanide as a listed ingredient. The Williamses were successful in obtaining an injunction allowing them to finish the 2008 season.
The players brought several state and federal claims against the NFL. The suit claimed that the NFL had known that bumetanide is an ingredient of StarCaps. The players contend that this is a breach of the NFL’s fiduciary duty and “fatally tainted the suspensions so that enforcing the [suspensions] would unfairly punish the players and condone the improper behavior and breaches of duty by the NFL, in violation of public policy and the essence of the CBA.”
US District Court Judge Paul Magnuson rejected this claim, writing “There is no doubt that it would have been preferable for the NFL to communicate with players specifically about the presence of bumetanide in StarCaps. The NFL’s failure to do so is baffling, but it is not a breach of the NFL’s duties to its players.” Judge Magnuson added that it is “not a breach of fiduciary duties to tell players all supplements are risky and that players should not rely on any supplement’s list of ingredients because that list may be incomplete.” The NFL Players Association asked the court to postpone the suspensions of the players while the case is under appeal. This motion was denied by Judge Magnuson. The NFL has appealed Judge Magnuson’s decision, claiming that the state claims should have been dismissed outright.
Judge Magnuson did not rule against the players on their state law claims. The case was sent back to Hennepin County District Court where Judge Gary Larson will rule on the state claims. Judge Larson has gotten assurance from the NFL’s attorneys that no immediate action will be taken against the Williamses before the season. Judge Larson will have to rule on whether the temporary injunction against the suspensions will remain in place and whether the state law claims can move forward. The state law claims are based on the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA). The DATWA requires employers to give employees an opportunity to attend drug counseling before disciplining them for a first time drug offense. The DATWA also allows employees to offer information that could explain a positive drug test. The CPA protects employees from discipline for using “lawful consumable products…off the premises of the employers during nonworking hours.”
NFL May Argue that Federal Law Pre-empts State Law
The NFL’s main argument is likely to be that state laws should be preempted by federal law that allows them to have a national drug policy that applies to all 32 NFL teams and their players. If this argument fails, the NFL will have to attack the merits of the state law claims. The Williamses claim that their rights under these three provisions were violated by the NFL. The NFL’s drug policy does provide treatment for player found to have been using recreational drugs. The NFL does not provide this for players who are found to have used performance enhancing drugs or masking substances. The NFL is likely to argue that the counseling requirement was not intended to apply to users of performance enhancing drugs.
The claim that the players were not allowed to explain a positive test will likely be rejected. The NFL gave the players a chance to explain the test, but the NFL rejected inadvertent use as a valid excuse. The claim that the players were punished for consumption of a lawful product will likely be rejected as well. Bumetanide is illegal without a prescription, which the Williamses did not have. The CPA also has a provision that allows restrictions of lawful substances by employers if it “relates to a bona fide occupation requirement and is reasonably related to employment activities.” The NFL will have a strong argument that the prohibition of performance enhancing and masking substances relates to a bona fide occupation requirement.
