The Williams Wall Still Has A Case

For a guy who has practiced law nearly 18 years and who has followed the NFL for twice that amount of time, the periodic intersection of the two topics might prompt the question, “Is that a gavel in your pocket or are you just happy to see me?”
I’ve read every word of the 23-page opinion filed Friday by Judge Paul Magnuson in the StarCaps case. In lieu of writing one exhaustive post regarding what the opinion says and what it means, I’ll break it into several different blurbs.
For starters, Vikings fans should take heart. Defensive tackles Kevin and Pat Williams might still be available to play all 16 games this season.
The primary problem with the entire case (as I’ll explain in a subsequent post) is that the NFL Players Association challenged a drug testing program and discipline procedure to which the NFLPA agreed through collective bargaining. And since the program arose from collective bargaining and culminated in an arbitration decision that, as the union and the league agreed, was binding, not many avenues existed for overturning the outcome.
As a result, the league’s statement regarding the outcome is not surprising: “The decision strongly supports the NFL program on performance enhancing substances that protects the health and safety of NFL players and the integrity of our game.”
But the decision doesn’t completely support the league’s program on performance enhancing substances.
Collective bargaining agreements between management and employees supersede most “common-law claims,” which is the name given to legal theories developed and refined by courts through the resolution of specific disputes over a period of many years. However, a CBA cannot overcome clear rights given to employees through statutes enacted by the state legislature and signed into law by the governor.
In Minnesota, Kevin and Pat Williams have two separate statutory claims that will be sent back to Minnesota state court (where the judges are elected by the local citizens, most of whom are Vikings fans).
One claim arises under the Minnesota Drug and Alcohol Testing in the Workplace Act. As explained by Judge Magnuson, this law confines employee drug testing in Minnesota to the specific procedures permitted by the law itself. In other words, any testing or discipline not permitted by the law is not permitted.
As further explained by Judge Magnuson, the law prohibits employers from imposing discipline based on a single positive test.
Here, Kevin and Pat Williams tested positive only once, and under the league’s policy regarding anabolic steroids and related substances, a four-game suspension arises from that first positive test.
The law also gives employees the right to explain any positive test.
Here, no one has doubted that the players have a pretty good explanation for testing positive for a prescription diuretic that secretly had been added to the supplement known as StarCaps. The players were suspended not because they knowingly ingested a banned substance, but because the strict-liability policy to which their union agreed mandates suspension even if, for example, a closet Packers fan working beverage detail had slipped a banned substance into their Pepsi at a Minneapolis restaurant.
On the surface, then, it appears that the players still have a pretty good argument for avoiding a four-game suspension for an initial positive test.
Also, the Minnesota Consumable Products Act prohibits employers from taking action against employees who have “engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.”
In English, this means that Vikings players are entitled, per Minnesota statutory law, to consume away from the workplace and on their own time any supplements sold legally and lawfully. The fact that the U.S. government has done a traditionally dreadful job of regulating the supplement industry is not something for which Vikings players or other Minnesota employees are responsible. Under the Consumable Products Act, employees are entitled to consume on their own time and off the employer’s premises anything that can be legally purchased.
Although a literal application of this law would cause problems if, while parked on a public street ten minutes before his shift starts, an employee chugs a twelve-pack of beer, no such extreme twist or tweak applies in this case.
Bottom line? The case filed by these two starting defensive tackles for the Vikings will now return to a Minnesota state court for their state-law claims to be resolved. Ultimately, the issue could be decided in part by a former starting defensive tackle for the Vikings who holds a seat on the Minnesota Supreme Court: Alan Page.
(Curiously, the lawyer representing Kevin and Pat Williams asked Judge Magnuson to keep the case in federal pursuant to the concept of “supplemental jurisdiction,” even though the lawyer initially filed the case in Minnesota state court. Our guess is that the lawyer was sufficiently confident that Judge Magnuson would have blocked the suspensions pending resolution of the state-law claims -- and likely would have ruled in the players’ favor on the merits of the state-law claims.)
The next skirmish in this case likely will involve a request for the same “preliminary injunction” that the federal court imposed in December. This would allow the players to continue to participate in games pending the ultimate outcome of the case.
Of course, the NFL could chose to appeal that specific portion of the ruling and ask that all of the Williamses’ claims be pitched. It will be an uphill battle, however. The principles applied by Judge Magnuson in preserving the state-law claims are generally recognized by federal courts throughout the nation, including the U.S. Supreme Court.
Meanwhile, our guess is that the NFL promptly will ask its lawyers to research the employee drug-testing laws for the 20 other states in which NFL teams are headquartered. It’s possible that both the steroids policy and the substance abuse policy ultimately will have to be revised to mesh with any applicable statutes passed by any state in which an NFL team plays its games. Until that happens, there’s a chance that certain players in certain states will have strong arguments to avoid the discipline that the league’s policies mandate.