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A reading of the ruling issued by Judge Paul Magnuson on Thursday converting the temporary restraining order into a preliminary injunction was, on the surface, a huge victory for the two Vikings and three Saints and, more broadly, for all NFL players.
But the decision to prevent the NFL from suspending the players until the underlying lawsuit is resolved does not mean that the players will win the underlying lawsuit.
We pointed out recently that a preliminary injunction hinges in part on evidence that the party seeking the injunction has shown a sufficient likelihood of success on the merits of the case.  The problem is that, on the merits, the NFL has a strong argument that the only presently viable legal claims require an interpretation of collectively bargained terms (in this case, the steroids policy) and that, as a result, the federal Labor Management Relations Act trumps all claims arising under Minnesota state law. 
So if the LMRA applies, the players can win only if they can ultimately persuade the Court to set aside the arbitration ruling issued by the NFL less than two weeks ago.
As Judge Magnuson points out, it’s a high standard.  And as to the requirement that the players show a sufficient likelihood that they’ll prevail in the end, Judge Magnuson has decided that the players were required to show only that the players have raised a “substantial question” on the merits of the claim.
In English, it means that Judge Magnuson has decided that, given all of the factors at issue in this case, the players didn’t have to prove that they are likely to ultimately win.  Instead, he required them to show only that they have viable arguments to support a reversal of the NFL’s ruling.
On this point, the players’ arguments focus on three issues:  (1) the partiality of hearing officer Jeff Pash, the league’s general counsel; (2) the notion that the rulings contradict the “essence” of the CBA; and (3) the question of whether the NFL’s ruling violates public policy.
As to the first point, Judge Magnuson found that a “substantial question” exists as to whether Pash was excessively partial.  Judge Magnuson points in part to the fact that NFL V.P. of law and labor policy Adolpho Birch refused to answer at the appeal hearing whether he disclosed that the NFL knew StarCaps was spiked with Bumetanide to Pash or to Commissioner Roger Goodell — and Pash didn’t require Birch to answer the question.
In this regard, Judge Magnuson drops a somewhat ominous statement in a footnote:  “It is for another day to determine whether in fact the parties anticipated that the arbitrator would be implicated in the wrongdoing alleged.”
Judge Magnuson also writes that Pash’s ruling “glossed over the rather shocking allegations the NFLPA makes” regarding the league’s failure to share its knowledge that StarCaps had been spiked.  And Judge Magnuson questions Pash for not taking into account Dr. John Lombardo’s testimony that, even if he had specifically been asked by the players or the NFLPA about StarCaps, Lombardo would have responded only with a general warning about supplements that weren’t previously approved by the NFL.
As to the second point, Judge Magnuson rejected the players’ argument that the alleged conduct of the league contradicts the essence of the CBA.  In other words, the Court ruled that the CBA doesn’t impose via its terms or spirit a requirement that the NFL share the information it obtained regarding StarCaps.
As to the third point, Judge Magnuson points out that the NFL didn’t respond to the argument that the league had a “fiduciary duty” to warn the players about the presence of a prescription-only drug in StarCaps.  Pash’s ruling didn’t address the issue either.  Thus, Judge Magnuson found that the players raised a “substantial question” on this point.
In the end, the league still could prevail on the first and third points, and in turn win the lawsuit.  And that would give the league the ability to suspend the players.  But even that ultimate victory would not change the fact that the NFL tried in vain to suspend four players for the playoff run (the fifth player, Charles Grant, is on injured reserve) represents a huge loss, and it could (as we’ll discuss later) give rise to some interesting negotiations in connection with the next CBA.   

Permalink 30 Comments Feed for comments Latest Stories in: Minnesota Vikings, New Orleans Saints, Rumor Mill
  1. MinnesnowtaVikes says: Dec 12, 2008 11:44 AM

    i wonder what percentage of football fans (both for and against the vikes, thus both for and against the ruling), actually care if the NFL can eventually win the case? All that people care about is that the decision won’t come til after the season.

  2. gameday says: Dec 12, 2008 11:52 AM

    YEAH! What florio said!
    Whatever it means. LOL

  3. TheGonz says: Dec 12, 2008 11:55 AM

    So, the arbitrator for the appeal of the suspensions is the guy that just happens to be on the league’s payroll as their chief legal counsel?
    Call me crazy and what not. . .but I thought that arbitration in a legal matter was supposed to be handled by an impartial third party. . .not a guy that’s ON THE NFL PAYROLL.
    Seriously, that sounds like a pretty blatant conflict of interests to someone with no real legal background. Can Florio (or any other legal types that might be out there) shed a little light on this?

  4. RobJH says: Dec 12, 2008 11:56 AM

    I’m beginning to think that Florio was dead-on with the insinuation that Judge Magnuson was helping out the Vikings by putting off his decision until after the playoffs.

  5. Gabby says: Dec 12, 2008 11:56 AM

    Mr. Florio,
    Thanks for the interesting read. Seems like the second issue is the one that had the the players’ apologists on this board frothing at the mouth. Since the Judge found in favor of the league on the second issue, do you think that makes for an uphill battle for the players? i.e., Don’t most “impartial arbitrator” and “violation of public policy” arguments usually fail? Are there somewhat elevated (I know that is not the right term) evidentiary stanards on these issues? And if it was found that the arbitrator was not impartial, wouldn’t the remedy be to remand the action so it could be assigned to a new arbitrator for a another appeal decision? Thanks.

  6. Heinekenfun says: Dec 12, 2008 12:01 PM

    Does anybody ever ‘win’ when it comes to StarCaps?

  7. TCLARK says: Dec 12, 2008 12:09 PM

    They took away this teams fake dicks to pee out of (Wizanator.) So this is the new excuse? How can a fake dick be banned but a banned substance is not? ANd no the league NEVER said star caps was 100% OK as I’ve seen posted. There is an approved list. It wasn’t on the approved list. End of story. The funny thing about the Saints and Vikes, niether is going to make the post season any way. The fans are happy now, but you be starting off the season next year with 4 game suspentions.

  8. mattmillenbestgm says: Dec 12, 2008 12:20 PM

    the nfl needs to win…suspensions for violation of drug policies need to be inforced…the nfl cannot become the mlb

  9. dolphinsrule65 says: Dec 12, 2008 12:22 PM

    Wonder if the rulling would be the same if the judge was from lets say Idaho or Alabama or somewere other then Minn.?
    Next we are gonna hear that the judge is a season tix holder or has comp tix to the games or someone somewere is gonna connect him to the Vikings, then it will get real interesting folks, stay tuned~!

  10. celephaiz says: Dec 12, 2008 12:23 PM

    Was the NFL’s failure to respond to the players’ “argument” a failure to respond to an argument in the players’ brief? or was it a failure to respond to an assertion that the league had a fiduciary responsibility in the players’ complaint?
    If the latter, then the league effectively admits that they had the fiduciary duty.

  11. Bob_Nelson says: Dec 12, 2008 12:34 PM

    Lawyers argue the definition of every single word until words have no meaning. The foolish judges are lawyers who look for multiple definitions of words to fit their desired outcome.
    No sentence can be constructed that lawyers cannot change to the complete opposite meaning.
    In the movie Dragnet, Joe Friday was asked why the guilty had so many rights and benifits from the courts. His response was “Because the innocent don’t need them.”
    Those who didn’t take banned steroid masking agents, those who took only FDA and NFL approved supplements, those who got into shape during the off season, those who weren’t obese, those that didn’t endanger there health with diuretics just to cheat a weigh in.
    Those players don’t need the word twisting circus of the American Court system. The guilty do.

  12. ZN0rseman says: Dec 12, 2008 12:40 PM

    Florio, why do you think that no major media outlets run with this case as you have?
    It seems to me like this case is a huge issue, where one of the biggest sports organizations in the country maliciously tried to screw over it’s own players. Are the networks afraid of pissing off tee leauge or something?

  13. Ntrikit says: Dec 12, 2008 12:48 PM

    TCLARK and dolphinsrule65,
    We already established, at least 300 times, that the judge is a Vikings season ticket holder and very, very corrupt. The judge is also on the Vikings payroll.
    The Vikings will not make the playoffs and the fat cheaters will be suspended for at least 12 games next season. Several current Vikings have been caught with Whizzinators and this team is notorious for trying to defeat drug testing.
    Everything you guys posted has already been mentioned several times.

  14. oigetit says: Dec 12, 2008 12:55 PM

    Read the ruling…as much as I could understand. It appears from the ruling that when it comes to the next CBA, negotiations will need to be held regarding the arbitraitor position. I assume if they had an unbiased hearing with the NFL, we wouldn’t be talking about this anymore and they would be supspended. The judge also makes it sound like he wants to have them settle outside of court.
    Interesting stuff Florio, almost makes me want to be a lawyer.

  15. e004y says: Dec 12, 2008 1:01 PM

    What are you going to do when the Vikings are out of the playoffs and you can’t defend them anymore, Ntrikit?

  16. zygi milf says: Dec 12, 2008 1:15 PM

    Hey NodakPaul – Ntrikit IS a Viking fan. He is making fun of the idiot Packer fans who throw stones from their glass trailer homes.

  17. Ntrikit says: Dec 12, 2008 1:18 PM

    You must be new here. Stick around. You’ll soon understand why I post what I do.
    I take the absolutely absurd and preposterous statements of the Vikings-haters and echo them, showing them just how stupid they look to the rest of us.
    If these guys want to think that the judge is a Vikings season ticket holder, that he is so corrupt that he will bend the law to suit his sports interests, then fine. They deserve to be mocked and laughed at.
    Read TCLARK’s post. He said “They took away this teams fake dicks to pee out of (Wizanator.)” Being that he used a plural on “fake d**ks”, that means that there was more than one incident. I was just pointing out how incredibly dumb that makes him look. There was but ONE Whizzinator.
    Do you now understand?

  18. misterj says: Dec 12, 2008 1:23 PM

    Ntrikit is joking.

  19. NodakPaul says: Dec 12, 2008 1:50 PM

    I stand corrected and apologize.

  20. Ntrikit says: Dec 12, 2008 2:03 PM

    it’s all good.
    Stick around. Making fun of the “pcakers” fans is like shooting fish in a barrel. Some of the posts are just so good, I can’t really add anything to them. Screamingidiot is the best. I copy/paste most of his posts and save them to a Word document. Whenever stress starts to catch up to me, I just pull out his quotes and laugh till I cry.
    JimmySmith is also a good source of comedy gold.

  21. purpleguy says: Dec 12, 2008 2:38 PM

    I continue to agree that the Starcaps players face an uphill battle, but I’m not sure enough attention has been made to some comments of the Judge that have not been mentioned much — the judge suggested that the players, NFL and NFLPA get together and resolve the issue before the sceduling order and a formal hearing takes place. Typically, the federal court judges, either directly or through their assigned magistrates, push the parties to settle prior to formal hearings. If the image-conscious NFL wants to avoid the significant egg on its face from the prior undisclosed knowledge of the Starcaps ingredient, information that won’t be confidential in federal court as opposed to a private arbitration/appeal, they’ll work out a compromise to save face. Once that is accomplished, the league can go back to finding underhanded ways to ensure refs continue to screw the Packers.

  22. Streetlight says: Dec 12, 2008 2:46 PM

    My only input on this is Mike’s article above, which should be well taken by both sides. Remember, even though the arbitrator may prevail, his ruling applies solely to the steroids policy. If that policy happens to be flawed whereas players are wrongfully implicated as a class – these players are entitled to their day in court – state or fed.
    In other words, the players are not limited to overturning the arbitrator’s decision. They are entitled absolutely to challenge the policy itself. And if they – the class as a whole, and others similarly situated – are ‘injured’ (loss-of-pay; reputation; whatever) and the class is ‘injured’ That class has a valid tort claim. Now you can argue that the arbitrator covered this point. That is, the players challenged the ruling. But as Mike points out, that wasn’t the issue in front of the arbitrator. If it had been then the players could have cross examined management. But were not permitted to do so. See the point!

  23. cliffclav says: Dec 12, 2008 3:29 PM

    Your missing the key point that the judge is leaving it open for both sides to get together and reach a non-court resolution. Because if the courts find for the players in this case, It means that the CBA will lose a good chunk of authority. It seems to me that after this injunction that it would be in the NFL’s best interest to settle it out of court. Yes they still stand a good chance at winning. But the obvious negligence and wanton disregard of players health on the part of the league could lean this case in the direction of the players. And if they lose it would also put more ammunition in the hands of the NFLPA for the next round of bargaining.

  24. screamingidiot says: Dec 12, 2008 3:51 PM

    You mean if an athlete has an illegal substance in his body he actually gets in trouble? Wow what an idea.

  25. cliffclav says: Dec 12, 2008 4:31 PM

    Sorry I was a little late in posting my Idea… Yeah… What purpleguy said.

  26. Ntrikit says: Dec 12, 2008 4:39 PM

    It really depends on how that illegal substance gets into the body. The same logic would apply to you, if it happened to you. If you go out to dinner, and you order a salad, and the chef hides some cocaine in your salad, you would have a great chance of beating the charges. You didn’t knowingly take the cocaine, it was hidden in a substance that was thought to be safe.
    This is where the NFL and the courts are having an issue. It is almost impossible to be responsible for every chemical that enters your body, unless you live in a vacuum and have multiple labs screen and test your food, drinks, and air.

  27. ZN0rseman says: Dec 12, 2008 5:01 PM

    For all of you guys who seem to be of the belief that these players should all be suspended… try this senario on for size.
    1: Your employer adopts a new policy that requires drug tests.
    2: They then find out that the coffee shop across the street is lacing their coffee with trace amounts of heroin. An illegal, banned and potentially harmful substance.
    3: They elect not to tell any employees about it for more than 2 years. During which time some employees fail drug tests but are not diciplined for it.
    4: Then they conduct selective drug tests on specific employees, including you, who were known to frequent said coffee shop.
    5: They then fire you for having trace amounts of an illegal, banned and harmfull substance in your body because the policy states that you are responsible for what is in your body. No exceptions.
    6: You object and appeal the decision to fire you, but the guy who you’re appealing to is the same bastard who knew the coffee you were drinking had heroin in it for the last two years, and said nothing the entire time. Obviously he doesn’t care that you didn’t know, oh, and by the way, this is the same guy who’s job description states that he is supposed to be looking after your well-being.
    Do you think you’d have a case against said company in a court of law?

  28. Ntrikit says: Dec 12, 2008 7:14 PM


  29. TheGonz says: Dec 12, 2008 8:57 PM

    “Do you think you’d have a case against said company in a court of law?”
    Depends. . .
    Are you employed by a company based in Minnesota or a company based in Wisconsin or Illinois?
    For some people, the answer to that question (and that answer alone) would determine their course of punishment.

  30. Ntrikit says: Dec 12, 2008 11:31 PM

    You are still playing the “corrupt judge” card? Please tell us you are. We have not heard that conspiracy theory in at least 5 minutes.

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