{"id":2426,"date":"2008-12-06T12:10:53","date_gmt":"2008-12-06T17:10:53","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=2426"},"modified":"2008-12-06T12:10:53","modified_gmt":"2008-12-06T17:10:53","slug":"judge-throws-nfl-for-a-preliminary-loss-in-doping-litigation","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2008\/12\/judge-throws-nfl-for-a-preliminary-loss-in-doping-litigation\/","title":{"rendered":"Judge Throws NFL For A (Preliminary) Loss In Doping Litigation"},"content":{"rendered":"

\"\"<\/a>Yesterday a federal court judge in Minneapolis preliminarily enjoined the National Football League\u00a0from 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.\u00a0 In\u00a0July or August 2008, each of\u00a0the players tested positive for a diuretic, whose alleged source was a dietary supplement with the brand name StarCaps, a substance banned\u00a0by the NFL and other sports governing bodies because it may be used to mask\u00a0 usage of anabolic steroids (whose usage by athletes also is prohibited).\u00a0 The National Football League Players Association, the\u00a0union representing the players,\u00a0asserts they did not use StarCaps to mask steroid usage or know that\u00a0it contained bumetanide, a diuretic not listed\u00a0as one of the product’s ingredients.\u00a0They deny any knowing use of a diuretic and voluntary exposure to the adverse health risks\u00a0of doing so.\u00a0\u00a0Rather, they believed their usage of StarCaps, an over-the-counter weight loss product, was permissible.\u00a0\u00a0The 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:<\/p>\n

Subject to your right of appeal, if you test positive or otherwise violate the Policy, you will <\/em>be suspended<\/strong>. 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 . . . .\u00a0If 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.<\/p><\/blockquote>\n

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,\u00a0that StarCaps’ labelling did not disclose\u00a0this ingredient, but he failed to warn NFL players not to use this specific product in breach of\u00a0his alleged\u00a0fiduciary duty to do so. \u00a0It 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. <\/p>\n

On the other hand, the NFL contends the physician’s July 2008 and July 2007 advisories\u00a0appropriately warned the players of the dangers of using weight reduction products\u00a0and urged them not to take such products.\u00a0\u00a0Both\u00a0reminded 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.”<\/p>\n

Each of the five players\u00a0had mid-November arbitration hearings before Jeff Pash, the NFL’s\u00a0executive vice president and general counsel,\u00a0in accordance with appeal process agreed to by the NFL and NFLPA\u00a0in collective bargaining.\u00a0 On December 2, Mr. Pash rejected the players’ appeals, and the NFL imposed four-game suspensions without pay on each player.<\/p>\n

In this litigation the\u00a0NFLPA 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\u00a0of conducting a fair hearing over conduct in which his office was involved.”\u00a0\u00a0When the parties have agreed to submit\u00a0a labor\u00a0dispute to a designated arbitrator for a\u00a0final and binding decision,\u00a0a federal court\u00a0has very limited authority under the Labor Management RelationsAct to vacate an arbitration\u00a0decision, and it is very rare that a court will do so.\u00a0 In MLBPA v. Garvey<\/em>, 532 U.S. 504 (2001), the Supreme Court held that\u00a0“‘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.”\u00a0<\/p>\n

However, the unique circumstances of\u00a0this case raise some very\u00a0interesting and difficult\u00a0issues. Stating\u00a0 he needed more time to study their merits, it appears\u00a0that Judge Paul Magnuson\u00a0issued the preliminary injunction\u00a0primarily because the players’ clubs, which both are competing for spots in the NFL playoffs, would be irreparably harmed and the public interest disserved\u00a0if 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\u00a0of their respective services.\u00a0 As an arbitrator for Olympic and international sports disputes, I eagerly await the court’s decision, which certainly will generate substantial discussion and\u00a0probably lead to an appeal by the losing party.<\/p>\n","protected":false},"excerpt":{"rendered":"

Yesterday a federal court judge in Minneapolis preliminarily enjoined the National Football League\u00a0from 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.\u00a0 In\u00a0July or August 2008, each of\u00a0the players tested positive for a […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[63],"tags":[],"class_list":["post-2426","post","type-post","status-publish","format-standard","hentry","category-sports-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2426","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=2426"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2426\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=2426"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=2426"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=2426"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}