Yesterday did bring a small win for the NFL as it argued successfully to have the case transferred from a county court to federal court, meaning the county judge who was elected by Viking fans will not be hearing this case. Andrew Brandt
It is bad timing for me and my students at Wharton and Georgetown that classes end this week because there are events happening that may become the subject of future Sports Law courses everywhere. Today represents a compelling day of labor relations in sports and the power of sports leagues to protect their policies against player attacks.
Let’s take a look at what’s going on as we write:
The StarCaps Case
The NFL’s position against the lawsuits of Pat and Kevin Williams, as well as that of the NFLPA representing the additional players challenging their suspensions, is simple. The Policy for Anabolic Steroids is expressly stated in the Collective Bargaining Agreement between the NFL and the NFLPA, agreed to in March 2006 and in effect through February 2011. All disputes according to that policy are handled through an internal appeals process heard by the Commissioner or his designee. Labor law requires deference to collective bargaining agreements such as this; to open this up to scrutiny by third parties – the courts – would lead to potential anarchy and the emasculation of the labor agreement.
NFL spokesman Greg Aiello, who is not an attorney, has stated the overriding position of the league and management everywhere: “The program and the collective bargaining agreement expressly bar precisely this kind of lawsuit. All of the steroid program's rules and procedures are established in agreement with the players' union. In other words, the players have agreed to the rules and the procedures that they are now challenging. There is no merit to this lawsuit and we look forward to responding to the court."
Yesterday did bring a small win for the NFL as it argued successfully to have the case transferred from a county court to federal court, meaning the county judge who was elected by Viking fans will not be hearing this case.
The players’ and the NFLPA’s position is that the league’s argument is not so simple. There are extenuating circumstances in this case that create an avenue beyond the limits of the CBA and the internal appeals process. There are officials of the league – medical director, attorney, toxicologist – who have allegedly withheld information that is integral to the discipline being imposed, thereby dismantling the process. The issue for the union is that the NFL knew about the tainted supplement in the StarCaps product but – for reasons that are murky – did not choose to share that information with the players. The union’s argument is that the normal deference to the collective bargaining labor exemption should be set aside here because the facts are so unique they scream out for justice to the players.
From this writer’s – and sports law professor’s – viewpoint, research and precedent would predict that in federal court this injunction will be not prevail due to the fact the Policy on Anabolic Steroids and Related Substances was collectively bargained, and courts will try hard to stay out of issues that were bargained in good faith.
However, with the matter in front of a federal court judge, anything can happen. That – to borrow a football phrase – is why they play the games.
The fact these cases are in a Minnesota federal court is a story in itself. The disposition of these cases will have effects long after today.
The NFLPA Grievance on behalf of Plaxico Burress
This is not the first grievance on behalf of Burress that the NFLPA has filed this year. In the first instance, the Giants suspended Burress for two games – and a loss of two weeks’ pay – for missing Monday meetings and failing to inform the team of his whereabouts. Since we are now dealing with team – as opposed to league – discipline, the case was scheduled to go before an independent arbitrator. Prior to a hearing, a settlement was reached keeping Burress out of one game (there was a bye week involved) but restoring one week’s pay.
The union will seek another compromise here. The argument will be that the Giants – by imposing a Conduct Detrimental suspension and fine AND placing Burress on the Non-Football Injury list, ending his season and season’s pay and presumably affecting his incentives and playoff share – went too far with their discipline and were responding to public (and mayoral) pressure in doing so. Burress, the union and omnipresent agent Drew Rosenhaus will claim the Giants have overreacted to the immense publicity of this case.
I suspect there may be some financial settlement, although Burress will not be in uniform again this season (and perhaps beyond, but that is for later discussion).
Antonio Pierce speaking to NYC Authorities
This is not good news for Burress. The authorities are seeking information on delays in reporting the accidental shooting and corroboration that Burress did, indeed, have an unregistered gun in his possession. Although he’s a friend of Burress, Pierce and his attorney have their own interests to protect because of a possible charge of obstruction of justice. Therefore, the information they give to investigators will first and foremost protect Pierce. Then it will affect Burress.
The next step would be for Pierce to be subpoenaed by a grand jury, for which he would receive immunity for any statements he makes which could potentially incriminate him. His lawyer has made it clear that if subpoenaed, he will testify, which, again, will not likely to be a source or comfort to his teammate and friend.
Quite a day, after quite a week (for us here at the Post as well).
In the Steroid policy, is there any language around the league being compelled to release any and all information on tainted products? That's the one piece of this case that would seem to open the window, and while you would think it would be in the league's interest to disclose that information to the players as soon as they discover it, I'm curious if there is any applicable language in the policy. Thanks
I cannot believe federal courts have nothing better to do in time like these than to decide about that. It's clear to me. Whether they knew about it, took it willingly, or didn't intend to, they alone are responsible for what is in their bodies. They may be able to sue the manufacturer, but nothing else. Are we now down to "i got a positive test but really the league didn't tell me the product did contain a banned substance?". that opens the door wide for all sorts of lawsuits. and to all the people i am hearing wondering about "the integrity of the game if you suspend those guys now." what about the integrity of the game because these guys are stronger, faster, and can play better because of the supplements they are taking, whereas other, honest players did not? maybe the williams dudes are not really that good but took steroids to recover faster, be stronger, etc. i have heard people saying that they could not have taken steroids just because they don't appear slim and trim. fact is though that taking steroids doesn't make one look like Schwarzenegger in his best days if it is not done in conjunction with exercise and the right diet. just taking steroids actually makes people fat if they do nothing else. since they took a product containing masking agents, i think it is fair to assume that they swallowed something else also. there are many products on the market to shed water / weight without being masking agents for steroids.
John--
Good question; I am not aware of any such language.
Andrew
Andrew
You state the reasons are murky for not disclosing the information. Can you surmise an educated guess at why they didn't disclose the information? It seems they set themselves up for positive tests (and some of the resulting fallout) by not doing this.
John & Andrew - I thought the statement given by the league on why they didn't disclose the information was pretty clear. They didn't disclose it because they didn't want other players claiming to have used this product when they failed a test. IE use steroids and take a more powerful dose of Bumetanide to clear their system and then claim they inadvertently took Star Caps when the test came back.
It cannot be the league's responsibility to test every potentially consumable substance in the marketplace to ensure it's label is accurate. It is reasonable to expect the league to work with some suppliers, test their products to ensure compliance, and provide players with a list of approved products. They already do this, they even provide a hotline for players to call to make sure a product is approved.
Any player that goes through the process and actually gets suspended is getting exactly what he deserves. Every season, well over 1500 professional football players have absolutely no trouble at all complying with the substances policy. Vikings fans need to quit whining, grow up, and realize that the problem isn't the policy or the league - the problem is Pat and Kevin Williams both did something really stupid.
Scott, thanks for statement stuff, I hadn't heard that. I do think that's still a pretty weird explanation since I'm assuming Bumentanide doesn't stay in the system very long (i could be wrong) and that issuing a statement about the StarCap product would have eliminated the excuses instead of leaving it in the gray area they've found themselves in.
And I'm not expecting the league to test every product but just to divulge information on products when they have it. I agree its the players responsibility in the end but I also think its a bit outside the players responsibility to get every supplement they use tested as well. As a consumer (way different circumstance I understand) I expect all ingredients in anything I buy to be on the labels.
On the surface, you have Congress' intervention with MLB for to lenient a policy, and the Federal Courts invervening with the NFL for strictly enforceing theirs.
What does this do, not just for the NFL labor agreemnt but, to any labor agreement if Federal Courts are going to get involved?
What a whirlwind week, with StarCaps, Plax and the Plagiarism matters.
Not surprisingly, the Minnesota federal judge, probably a Vikings fan, has not lifted the TRO that the Minnesota state judge, also a Vikings fan, entered the other day. So, the suspensions handed down by the NFL for the steroid-masking substance are lifted for the time being.
There is some facial appeal to players' argument that the NFL, by withholding crucial information, did not afford the players a reasonable chance to comply with the bargained-for provisions of the CBA. Arguably there was a lack of good faith by the NFL doctor and others.
That was apparently enough to kick this case outside of the parameters of the CBA and into the courts.
Legal fees for the NFL for the StarCaps cases alone will probably tickle seven figures.
It will be interesting to see if other players sue over suspensions, fines, findings of conduct detrimental to the NFL, and whatever other sanctions the commissioner has issued.
Maybe Tagliabue's approach of letting the legal system work first before issuing discipline was the correct one after all. The owners cannot be happy with Goodell relative to the StarCaps matter. I think this guy shoots from the hip too much.
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Dec 05, 2008
12:13 PM
I think that the players are getting the shaft. I, however, am worried that if the courts make a decision in their favor that it could really hurt the power the league has over suspensions and the like.