By Coley Howard, Elizabeth Catalano, and Dylan Henry, of Montgomery McCracken Walker & Rhoads LLP
(The following article appeared in Sports Medicine and the Law, a publication produced by Hackney Publications)
In April 2019, Brandon Copeland, linebacker for the New York Jets, failed a random NFL drug test. Unbeknownst to Copeland, a dietary supplement called “Yang R-ALA” that he used contained a banned substance called Ostarine. After the NFL suspended him, Copeland sued the supplement manufacturer, Poliquin Performance, for breach of implied warranty, breach of express warranty and alleged express or affirmative misrepresentations —“deceptive, fraudulent, misleading, and other unconscionable commercial practices.” Copeland v. Poliquin Performance Center 2, LLC, No. 3:19-cv-20278-ZNQ-LHG (D.N.J. 2019). After some procedural setbacks in the courts, Copeland’s claims are still moving forward.
Ostarine Free . . . Psych!
Copeland first consumed Yang R-ALA on April 1, 2019, after thorough research and consultation with nutritionists. Yang R-ALA was advertised as a high-quality dietary supplement designed to enhance glucose transport, which allows nutrients to get to muscles faster, and is a potent antioxidant which supports growth of lean mass.[1] Both the label on the bottle and Poliquin’s description of the supplement on its website stated that it did not contain Ostarine. Two nutritionists verified this for Copeland and approved his consumption of Yang R-ALA for training purposes.
On April 15, 2019, after his compliance with the regular NFL drug testing policy, Copeland’s urine sample came back positive for Ostarine. In his eight years in the NFL, this was Copeland’s first and only failed drug test for any banned substance, and he continues to purport that he never knowingly ingested any banned substances. He stopped taking Yang R-ALA immediately after being notified of his test results.
After the failed drug test, Copeland also took the remaining supplements to AEGIS, an accredited anti-doping laboratory, and each one was found to be conclusively positive for Ostarine. To further verify the source of Ostarine, AEGIS purchased sealed bottles of Yang R-ALA straight from Poliquin and reported that every sample was again conclusively positive for Ostarine.
NFL Drug Testing Policy and Consequences
The 2018 NFL Performance Enhancing Substances Policy (the “Policy”) at issue in this case listed Ostarine as a prohibited brand-name Selective Androgen Receptor (SARM) on the policy’s “Prohibited Substances List.” The policy described Ostarine as illegal and unapproved for human consumption in the United States, as well as everywhere else. SARMs like Ostarine are banned not only because of the performance enhancing aspect, but also for the increased risk of liver toxicity, heart attack, and stroke.
Pursuant to the Policy, Copeland received a five-week suspension,[2] was banned from using team training facilities and participating in team meetings, had to forfeit any Forfeitable Salary Allocations on a weekly basis, and needed approval from an independent administrator before coming off of suspension.
In addition to these NFL-enforced consequences, Copeland also faced several personal career setbacks following the failed drug test. He lost income from the four games he missed and was ineligible for player incentives and bonuses which would have otherwise been available to him. Personally, his character and integrity were called into question, resulting in his continued loss of speaking engagements and endorsement opportunities.
Copeland unsuccessfully appealed his suspension through the NFL appellate and arbitration procedure, where he made no argument against the NFL—opting only to express his frustration with the situation which Poliquin Performance put him in by not labeling Yang R-ALA as containing Ostarine, the banned substance. The NFL denied his appeal based on the conclusively positive drug test for Ostarine.
Copeland Seeks Redemption Through Suit
Copeland had already completed the terms of his suspension by the time he sued Poliquin in November 2019 in New Jersey state court.[3] Poliquin removed the matter to the United States District Court for the District of New Jersey and then moved to dismiss Copeland’s case, arguing that Copeland’s first three counts were subsumed by the New Jersey Products Liability Act (PLA).[4] The Court agreed, and threw Copeland’s case out, holding that Copeland’s claims were subsumed by the PLA.[5] The PLA covers harm caused to consumers by defective products and imposes liability on the seller or manufacturer for manufacturing defects, warning defects, and design defects. This meant that Copeland’s claims, which he brought under New Jersey’s Consumer Fraud Act (“CFA”), N.J.S.A. § 56:8-1, along with separate claims for breach of implied warranty and express warranty, were all dismissed.
In August 2020, Copeland asked the court to reconsider its ruling. In Copeland’s motion for reconsideration, he argued that his claims for misrepresentation and false advertisement should be considered under the CFA, which is construed more liberally in favor of the consumer and has a broader scope of protecting against unconscionable business practices. He also pointed to recent precedent permitting a CFA claim alleging misrepresentation and fraudulent practices to proceed in separate counts, without a PLA claim.[6]
Copeland Gets a Second Shot
Nearly a year later, in March 2021, the Court revived Copeland’s claims against Poliquin for fraudulent practices and misrepresentation. In granting Copeland’s motion for reconsideration, the Court is allowing Copeland to continue his lawsuit under the New Jersey Consumer Fraud Act—finding that bringing claims under one body of law (products liability) does not preclude claims under another (consumer fraud).
The Court vacated its prior dismissal order and permitted Copeland to refile an amended claim under the CFA and permitted the claim for breach of implied warranty to proceed. The court reasoned that Copeland’s reliance on the inaccurate label and misrepresentations by Poliquin constituted an express or affirmative misrepresentation.[7] This result allows Copeland a second shot at seeking justice for himself and his image. Copeland’s suit against Poliquin remains a potential avenue for professional and personal redemption. The Court’s recent greenlight in Copeland’s suit may allow him to seek damages from Poliquin and perhaps even have positive implications for the formerly rising star’s muddied public image. Pre-suspension, during the 2018 season, Copeland had a career-high five sacks and was expected to be a starter at outside linebacker.
Future Issues with NFL Drug Testing
Back in 2013, years before Copeland was suspended, former NFL player Ryan Riddle wrote an opinion column for Bleacher Report criticizing the inconsistencies of NFL drug testing and how it sometimes fails. According to NFL Senior Vice President Adolpho Birch, the NFL would test around 350 players per week from pre-season to the Super Bowl, including 10 players from each team and some who are under “reasonable suspicion.” Each player could be tested a maximum of six times in the offseason. Despite this policy, Riddle had never been randomly tested for steroids in his three years in the NFL, while others, like Richard Sherman and Bruce Irvin, were not as lucky and, as a result, faced suspensions.[8]
Copeland is one of many “unlucky” NFL players who have faced the consequences of the NFL’s drug testing policy as well as resultant public scrutiny, which often cost the players brand deals and endorsements. Another recent example is Buffalo Bills’ defensive lineman Corey Liuget’s situation with his trainer. In 2020, Liuget sued his trainer, Ian Danny, for injecting him with banned substances, causing Liuget to fail his random NFL drug test and face a four-game suspension for the 2019 season. Danny purported that these injections were to help Liuget recover from foot injections and that he used natural substances imported from Australia, not the “drug cocktail” that Liuget claimed. Liuget alleged that this setback caused him $15 million in decreased pay and loss of leverage in contract negotiations. The parties ultimately settled. Liuget, like Copeland, had never previously tested positive for banned substances in his nine years in the NFL, despite having been tested over 80 times.[9]
After Copeland’s suspension, in March 2020, the NFL and NFL Players Association entered into a new collective bargaining agreement (CBA).[10] The new CBA eliminated the four-month testing period that the 2018 Policy required, shortening it to two weeks focused on the NFL season as opposed to random testing. Additionally, the NFL no longer tests or invokes penalties for marijuana. For players like Copeland, this is a welcome change and positive shift away from random testing that can have harsh unintended consequences. As for Copeland’s suit against Poliquin, the outcome remains to be seen.
[1] EJ Henriksen, In: Antioxidants in Diabetes Management 303-318 (2000).
[2] Copeland was suspended for the first four games but because the Jets had a bye week, this resulted in a five-week suspension during which he could not train with the team or play.
[3] Dennis Wasak, Jets’ Copeland Finishes Suspension, Suing Supplement Company, The Associated Press, Oct. 9, 2019 (https://abcnews.go.com/Health/wireStory/jets-copeland-finishes-suspension-suing-supplement-company-66171908).
[4] Copeland v. Poliquin Performance Center 2, LLC, No. 3:19-cv-20278-ZNQ-LHG (D.N.J. March 30, 2021) (https://www.leagle.com/decision/infdco20210405b01)
[5] N.J. Stat. Ann. §2A-58c-1.
[6]SeeSun Chemical Corporation v. Fike Corporation, 234 N.J. 319 (2020)
[7] This interpretation of Sun. Chem., 243 N.J. 319 (2020) has received positive treatment in Palmieri v. Intervet Inc., 2021 U.S. Dist. LEXIS 103581 (D.N.J. May 28, 2021), where a motion to dismiss an implied warranty claim for a flea and tick medicine was partially rejected on the basis that the plaintiff relied on the label.
a more recent class action case.
[8] Ryan Riddle, Insider’s Perspective on NFL Drug Tests, Bleacher Report, June 11, 2013 (https://bleacherreport.com/articles/1668902-insiders-perspective-on-nfl-drug-tests).
[9] Brent Schrotenboer, NFL Player Settles Drug Case vs. His Ex-Personal Trainer Just Weeks Before Trial, USA Today, Jan. 21. 2020 (https://www.usatoday.com/story/sports/2020/01/21/nfl-player-settles-doping-case-vs-trainer-just-weeks-before-trial/4527628002/).
[10] Gary Coffey, Is the NFL Removing Suspension for Positive Drug Tests?, Sports Casting, May 26, 2020 (https://www.sportscasting.com/is-the-nfl-removing-suspensions-for-positive-drug-tests/).
