Yesterday a federal court judge in Minneapolis preliminarily enjoined the National Football League from enforcing its four-game suspensions of five players (the Vikings’ Kevin Williams and Pat Williams, and the Saints’ Charles Grant, Deuce McAllister, and Will Smith) for violating the League’s drug testing policy.  In July or August 2008, each of the players tested positive for a diuretic, whose alleged source was a dietary supplement with the brand name StarCaps, a substance banned by the NFL and other sports governing bodies because it may be used to mask  usage of anabolic steroids (whose usage by athletes also is prohibited).  The National Football League Players Association, the union representing the players, asserts they did not use StarCaps to mask steroid usage or know that it contained bumetanide, a diuretic not listed as one of the product’s ingredients. They deny any knowing use of a diuretic and voluntary exposure to the adverse health risks of doing so.  Rather, they believed their usage of StarCaps, an over-the-counter weight loss product, was permissible.  The NFL contends that its drug testing policy, which was collectively bargained with the players union, provides for strict liability. The NFL’s Policy on Anabolic Steroids and Related Substances states:

Subject to your right of appeal, if you test positive or otherwise violate the Policy, you will be suspended. You and you alone are responsible for what goes into your body. Claiming that you used only legally available nutritional supplements will not help you in an appeal. . . . Even if they are bought over-the-counter from a known establishment, there is currently no way to be sure that they contain the ingredients listed on the packaging or have not been tainted with prohibited substances . . . . If you take these products, you do so AT YOUR OWN RISK! For your own health and success in the league, we strongly encourage you to avoid the use of supplements altogether, or at the very least to be extremely careful about what you choose to take.

In response, the NFLPA claims the physician chosen by the NFL to independently administer the drug testing program knew, allegedly based on a laboratory’s analysis of StarCaps after an unidentified NFL player’s November 2006 positive test for bumetanide, that StarCaps’ labelling did not disclose this ingredient, but he failed to warn NFL players not to use this specific product in breach of his alleged fiduciary duty to do so.  It also claims that the NFL in-house attorney who oversees the League’s drug testing program had such knowledge, but also failed to notify the NFLPA or players about the presence of bumetanide in StarCaps.

On the other hand, the NFL contends the physician’s July 2008 and July 2007 advisories appropriately warned the players of the dangers of using weight reduction products and urged them not to take such products.  Both reminded them “that the contents of supplements may not match what is listed on the label of the bottle” and “that as NFL players you are responsible for whatever is in your body.”

Each of the five players had mid-November arbitration hearings before Jeff Pash, the NFL’s executive vice president and general counsel, in accordance with appeal process agreed to by the NFL and NFLPA in collective bargaining.  On December 2, Mr. Pash rejected the players’ appeals, and the NFL imposed four-game suspensions without pay on each player.

In this litigation the NFLPA is asking the court to vacate the arbitration awards on the grounds they violate public policy by condoning the alleged breach of fiduciary duty and “were rendered by an arbitrator who was not capable of conducting a fair hearing over conduct in which his office was involved.”  When the parties have agreed to submit a labor dispute to a designated arbitrator for a final and binding decision, a federal court has very limited authority under the Labor Management RelationsAct to vacate an arbitration decision, and it is very rare that a court will do so.  In MLBPA v. Garvey, 532 U.S. 504 (2001), the Supreme Court held that “‘if an arbitrator is even arguably construing or applying the contract and acting within the scope of authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.'” Rather, “[i]t is only when the arbitrator strays from interpretation and application of the agreement and effectively ‘dispenses his own brand of industrial justice’ that his decision may be unenforceable.” 

However, the unique circumstances of this case raise some very interesting and difficult issues. Stating  he needed more time to study their merits, it appears that Judge Paul Magnuson issued the preliminary injunction primarily because the players’ clubs, which both are competing for spots in the NFL playoffs, would be irreparably harmed and the public interest disserved if it is ultimately decided that the players’ suspensions would violate the NFL’s collectively bargained drug testing policy and wrongly deprive the Vikings and Saints of their respective services.  As an arbitrator for Olympic and international sports disputes, I eagerly await the court’s decision, which certainly will generate substantial discussion and probably lead to an appeal by the losing party.