![\"\"](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2008\/12\/football_ball_1.gif\" "\\"football_ball_1\\"")
<\/a>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.<\/span><\/p>\nThe National Football League Players Association (NFLPA) is seeking to vacate two arbitration awards by Jeffrey Pash, the NFL\u2019s chief legal officer, ruling that the players violated the NFL\u2019s strict liability drug testing policy and should be suspended for four games.\u00a0 The NFLPA contends that independent administrator of the NFL\u2019s drug policy, a consulting toxicologist, and the NFL\u2019s vice president of law and labor policy (who worked under Pash\u2019s 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.\u00a0 The union also asserts that Pash\u2019s arbitration rulings were biased and violated public policy by condoning this breach of fiduciary duty in violation of New York law.<\/p>\n
The court found that \u201cthe balance of the equities strongly favors the NFLPA\u201d and that the merits of its claims raise a \u201csubstantial question\u201d justifying the extension of its preliminary injunction against the NFL.\u00a0 Despite finding that Pash\u2019s arbitration awards were \u201cthorough,\u201d \u201cwell reasoned,\u201d and \u201cdraw their essence\u201d from the collectively bargained NFL drug testing policy, the court ruled that his decisions \u201cglossed over the rather shocking allegations the NFLPA makes\u201d and that \u201ca substantial question exists as to whether Mr. Pash\u2019s connection to the allegations in this case prejudicially affected the award[s].\u201d\u00a0 In addition, the court concluded that the arbitration awards may violate New York\u2019s public policy in favor of enforcing fiduciary duties by not \u201cacknowledg[ing] these serious apparent breaches\u201d or their effect \u201con the merits of the players\u2019 appeals.\u201d<\/p>\n
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 \u201carbitrator\u201d to resolve player appeals (rather than a mutually acceptable arbitrator independent of the parties), is a product of arms-length collective bargaining.\u00a0 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\u2019s sanction (e.g., 4-game suspension) for a positive test based on no fault\/negligence or no significant fault\/negligence.\u00a0In his arbitration rulings, Pash determined that the NFL and NFLPA agreed on literal \u201cstrict liability\u201d for a positive test (although one wonders, as did Judge Magnuson, about the purpose of the NFL Supplement Hotline).\u00a0 Presumably a material defect in the collection, chain of custody, or testing of a player\u2019s urine sample would negate a positive test, but this wasn\u2019t a defense raised here.<\/p>\n
There are extremely narrow grounds for a court to vacate an arbitration award; that the judge disagrees with the merits of the arbitrator\u2019s decision isn\u2019t one of them.\u00a0 It is hard to understand how a \u201cwell reasoned\u201d arbitration decision by the parties\u2019 chosen arbitrator can be so biased that it should be vacated.\u00a0 The NFLPA\u2019s claim that the Pash arbitration decision violates public policy by condoning a breach of New York fiduciary duty law, while raised in different context,\u00a0 is similar to the plaintiff\u2019s claims in\u00a0Walton-Floyd v USOC<\/em>, 965 SW 2d 35 (Tex Ct App 1998). An Olympic track and field athlete asked the court\u00a0 to overturn her suspension for a positive drug test on the ground she received negligent advice from the USOC\u2019s drug hotline concerning Sydnocarb, a carbohydrate supplement she took that contained a banned substance (amphetamines).\u00a0\u00a0 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.\u00a0 She alleged,\u00a0inter alia<\/em>, that the USOC was negligent for \u201cnot keeping its list of banned substances up to date to include Sydnocarb\u00a0<\/a><\/a><\/a>despite actual knowledge and industry knowledge concerning Sydnocarb and the fact that it represented an amphetamine derivative.\u201d\u00a0 In addition, she asserted \u201cthat 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.\u201d<\/span><\/span><\/span><\/p>\n 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\u2019s exclusive forum for\u00a0 external legal relief in an eligibility dispute.\u00a0 The result in\u00a0<\/span><\/span>Walton-Floyd\u00a0<\/span><\/em>\u00a0is consistent with other cases holding that the Dormant\u00a0Commerce 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).\u00a0 In both types of cases, federal law, not state law, applies in order to achieve a uniform national standard.<\/span><\/span><\/span><\/p>\n So far, it appears unlikely the parties will settle this case, so stay tuned for future developments.<\/span><\/span><\/p>\n","protected":false},"excerpt":{"rendered":" \u00a0 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 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