This year’s Florida-Oklahoma BCS national championship pairing provides strong ammunition for those, including President-elect Barack Obama, advocating there instead should be a playoff system to determine the  NCAA Division I football national champion.  Although Oklahoma and Florida are the two top-ranked teams in the regular season BCS standings, third-ranked Texas defeated Oklahoma 45-35 in October.  Obama’s proposal for an eight-team playoff would work well this year because there are seven one-loss BCS conference teams (but none are undefeated) and two undefeated teams from non-BCS conferences.  (But which one of the nine would be left out?) Obama has suggested he would be willing “to throw his weight around” to make this happen.  What he could do: push to eliminate the federal tax-exempt status of university athletic departments, or perhaps even propose federal legislation to directly regulate the NCAA.  

However, neither is likely to happen because Obama will have more important issues on his plate.  Moreover, reflecting the historically cozy relationship between sports and politics in America, Congress rarely (if ever) has enacted any sports-specific laws that would adversely affect national sports governing bodies and leagues or their respective members.  At most, we might see some future Congressional hearings or calls for a Justice Department investigation regarding whether the BCS system violates the federal antitrust laws — initiated by legislators from states in which a home university’s football team was perceived by constituents to have been treated unfairly.  But, after all is said and done, there will be a lot more said than done.  Besides, Obama’s proposal would make NCAA Division I football even more like the NFL, probably result in the elimination of many of the 34 existing bowl games, and reduce a source of lively debate among college football fans.

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.

During December, I will be periodically blogging about a variety of sports law topics. Although sports-related legal issues frequently arise (almost daily) and interest the general public as well as lawyers, most people fail to appreciate the breadth and complexity of “sports law.” I recently wrote the following column on this topic for the December 2008 issue of The Young Lawyer, a newsletter published by the American Bar Association’s Young Lawyers Division:

It is a common misperception that “sports law” is a narrow field populated primarily by lawyers representing professional athletes, sports leagues, or clubs who have specialized expertise in sports-specific laws. To the contrary, “sports lawyers” represent a wide variety of clients who need legal advice and representation that usually requires knowledge of several general areas of law.

Virtually every field of law regulates or is relevant to one or more aspects of youth, high school, college, Olympic and international, professional, or recreational sports.