NFL has few options in Williams case

Before discussing the landmark decision regarding Pat and Kevin Williams on Friday, a couple of comments.

As to last night’s game, I have long referred to Greg Jennings of the Packers as a special player. Greg is not the fastest, strongest or biggest receiver, but he finds the ball and has incredible balance, hands and body control. I remember the early morning of draft day 2006 when Packers scout Eliot Wolf rolled tape of this kid from Western Michigan and said he would be our player in the second round. He was and recently was extended to a whopping contract extension. Kudos to Eliot for locking in on Jennings.

As for the Bay Area dramas, Richard Seymour has reported for duty in Oakland; Michael Crabtree has not reported in San Francisco. Seymour had a lot more to lose. His salary of $3.65 million calls for him to make $215,000 (1/17th) by reporting and playing tonight. Crabtree, however, will likely make the minimum salary as most of his compensation will eventually be in the form of bonuses and potential escalators. Thus, he only forfeited 1/17th of $310,000, or $18,000, by missing Sunday’s game.

Williamses Win

In a stunning opinion Friday, a federal appeals court ruled that Pat and Kevin Williams of the Vikings were cleared to play for the entire 2009 season, despite the fact the NFL had suspended them nine months ago for violating its Policy and Program for Substances of Abuse by testing positive for a diuretic that masks the presence of steroids.

I teach my first class of the semester today in sports law, and we now have a new addition to the syllabus, an astounding result as the federal policy favoring the sanctity of collectively bargained agreements between employers and employees has been disturbed here.

Anyone who wants to read the opinion can find it on the Eighth Circuit Court's site. It reflects a result that is antithetical to the uniformity that the NFL hopes to achieve with players and teams through the application of a Collective Bargaining Agreement (CBA) that was negotiated by the league and the players.

What happened in court Friday?

A three-judge panel of the Eighth Circuit United States Court of Appeals essentially ruled that the NFL did not have complete jurisdiction over its drug-testing program, allowing the courts to get involved and sending this case back to state court to weigh the merits of the NFL policy against the protections of the Minnesota laws, a process that will take place some time after the season.

The court held that the Williamses' claims were predicated on Minnesota law, not the NFL’s CBA nor its testing policies. Therefore, no interpretation of the CBA was necessary, and state law would apply.

The court found that despite the policy of preference for federal labor policies trumping state laws, this was not intended “to displace any state law they found inconvenient…” saying, “...such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored.”

But aren’t players responsible for what’s in their bodies and subject to suspension?

Yes, according to the NFL policy that is a strict liability policy. Whether a player is taking a cold medication, a weight-loss pill or any other substance, he’s completely responsible for what’s in his system and faces penalties for positive tests. That, however, is how the NFL interprets it, not necessarily how the courts in Minnesota interpret it.

What about the Minnesota state laws is different than the NFL testing policies?

The Minnesota Drug Testing in the Workplace Act (DATWA) has rigid guidelines and procedures as to how and when employers can test employees, standards that are tougher for employers than the NFL requires in its Policy for Anabolic Steroids and Related Substances. These guidelines are more employee-friendly than most other states. What are those employee protections? Among them, the employer must:

- Provide employee who tests positive written notice, an opportunity to explain that result and ability to request a re-test at the expense of the employee;
- Not discharge or discipline the employee until positive tests verified;
- Give first-time offenders the chance to get treatment before action is taken.

Notwithstanding that, however, the league hopes it doesn’t have to worry about different applications in different states. It thought it had a uniform policy that was immune from state-by-state interpretation. That argument was rejected by the court as the ruling was that the players’ state law claim is independent of the NFL CBA.

The court ruled that the CBA cannot and does not pre-empt the state law claim, even if it results in potential anarchy among the many teams and states with NFL teams.

What about the players for the Saints? Will they be protected in the same way?

Not likely. Louisiana does not have the same protections for employees that the DATWA has in Minnesota, nor a Consumer Products Act, which is also present in Minnesota and was helpful to the WIlliamses as well in this case.

Charles Grant and Will Smith of the Saints are still subject to serve their four-game suspensions imposed by the league for their positive tests, as is the unsigned Deuce McAllister. It will be interesting to see how strongly the league pursues those suspensions, which were imposed 10 months ago.

What happens now?

The NFL could appeal to the United States Supreme Court, the highest court in the land, which could obviously decline to hear the case.

The NFL could also request that the entire panel of judges on the Eight Circuit review the case, although it’s unlikely the court would do so after its own three-judge panel issued a ruling. In other words, the league’s options are limited.

Can states’ drug-testing procedures trump those of the NFL?

With this ruling, evidently. There is a real potential for anarchy in the drug-testing environment of the NFL and, for that matter, every league that has a collectively bargained drug testing policy.

Spokesman Greg Aiello of the NFL said Friday: “The real losers today are the players on 31 other clubs who no longer live under the same rules as players on the Minnesota Vikings -- a result of the NFL Players Association's failure to stand behind the program it negotiated with the league.”

Does the state law in the NFL player contract trump the CBA?

That is now the question. In Paragraph 22 of the standard NFL player contract, the language states, “This contract is made under and shall be governed by the laws of the state of ________.” The contracts of the Williamses obviously have “Minnesota” in that space. Although all NFL player contracts are ultimately governed by the Collective Bargaining Agreement, this case raises the question as to which source of governance trumps the other.

This is not over. Stay tuned.

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