Judge Paul Magnuson extended his preliminary injunction barring the NFL from suspending Minnesota Vikings players Kevin Williams and Pat Williams and New Orleans Saints players Charles Grant, Deuce McAllister, and Will Smith for testing positive for bumetanide, an undisclosed banned substance in Starcaps, until a full hearing on the complex issues in this litigation is held. As a practical matter, this means these players will remain eligible to play through the NFL regular season.

The National Football League Players Association (NFLPA) is seeking to vacate two arbitration awards by Jeffrey Pash, the NFL’s chief legal officer, ruling that the players violated the NFL’s strict liability drug testing policy and should be suspended for four games.  The NFLPA contends that independent administrator of the NFL’s drug policy, a consulting toxicologist, and the NFL’s vice president of law and labor policy (who worked under Pash’s supervision) knew that Starcaps, a dietary supplement, contained bumetanide but deliberately failed to communicate this information to the NFLPA or the players in breach of their fiduciary duty.  The union also asserts that Pash’s arbitration rulings were biased and violated public policy by condoning this breach of fiduciary duty in violation of New York law.

The court found that “the balance of the equities strongly favors the NFLPA” and that the merits of its claims raise a “substantial question” justifying the extension of its preliminary injunction against the NFL.  Despite finding that Pash’s arbitration awards were “thorough,” “well reasoned,” and “draw their essence” from the collectively bargained NFL drug testing policy, the court ruled that his decisions “glossed over the rather shocking allegations the NFLPA makes” and that “a substantial question exists as to whether Mr. Pash’s connection to the allegations in this case prejudicially affected the award[s].”  In addition, the court concluded that the arbitration awards may violate New York’s public policy in favor of enforcing fiduciary duties by not “acknowledg[ing] these serious apparent breaches” or their effect “on the merits of the players’ appeals.”

The NFL drug testing policy, which provides for strict liability (the same standard exists for Olympic and NCAA sports) and appoints the NFL commissioner or his designee as the “arbitrator” to resolve player appeals (rather than a mutually acceptable arbitrator independent of the parties), is a product of arms-length collective bargaining.  Unlike the World Anti-doping Code, which applies to Olympic and most international sports, the NFL drug protocol apparently has no provision for reducing or eliminating a player’s sanction (e.g., 4-game suspension) for a positive test based on no fault/negligence or no significant fault/negligence. In his arbitration rulings, Pash determined that the NFL and NFLPA agreed on literal “strict liability” for a positive test (although one wonders, as did Judge Magnuson, about the purpose of the NFL Supplement Hotline).  Presumably a material defect in the collection, chain of custody, or testing of a player’s urine sample would negate a positive test, but this wasn’t a defense raised here.

There are extremely narrow grounds for a court to vacate an arbitration award; that the judge disagrees with the merits of the arbitrator’s decision isn’t one of them.  It is hard to understand how a “well reasoned” arbitration decision by the parties’ chosen arbitrator can be so biased that it should be vacated.  The NFLPA’s claim that the Pash arbitration decision violates public policy by condoning a breach of New York fiduciary duty law, while raised in different context,  is similar to the plaintiff’s claims in Walton-Floyd v USOC, 965 SW 2d 35 (Tex Ct App 1998). An Olympic track and field athlete asked the court  to overturn her suspension for a positive drug test on the ground she received negligent advice from the USOC’s drug hotline concerning Sydnocarb, a carbohydrate supplement she took that contained a banned substance (amphetamines).   She alleged the USOC hotline operator negligently told her this product was not on the banned list, but she acknowledged the operator did not tell her it was safe to use or provide any other assurances.  She alleged, inter alia, that the USOC was negligent for “not keeping its list of banned substances up to date to include Sydnocarb despite actual knowledge and industry knowledge concerning Sydnocarb and the fact that it represented an amphetamine derivative.”  In addition, she asserted “that the USOC owed her a duty, because the USOC represented itself as an expert in the field of illegal substances, instructed athletes to use its hotline to obtain information on those substances, provided her with inaccurate information, and intentionally or negligently misled her regarding the risk of taking Sydnocarb.”

The court held that her state law claims were preempted by the federal Amateur Sports Act, which provides that final and binding AAA arbitration is an Olympic athlete’s exclusive forum for  external legal relief in an eligibility dispute.  The result in Walton-Floyd  is consistent with other cases holding that the Dormant Commerce Clause precludes the use of state law to resolve disputes arising out of the terms of a collective bargaining agreement (which is governed by federal labor law).  In both types of cases, federal law, not state law, applies in order to achieve a uniform national standard.

So far, it appears unlikely the parties will settle this case, so stay tuned for future developments.