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League’s Confidence In StarCaps Defense Might Be Misplaced

On the day that the NFL filed formal notice that it will appeal the decision of Judge Paul Magnuson preserving the state-law claims of Vikings defensive tackles Kevin and Pat Williams, the league issued another statement expressing confidence in the ultimate outcome of the litigation.
“The NFL has a policy that prohibits the use of performance enhancing drugs,” the statement reads.  “That policy applies nationwide to all 32 NFL teams and their employees.  On Friday, Judge Magnuson correctly recognized that federal law permits such a nationwide policy, that the NFL’s policy was properly adopted through collective bargaining with representatives of the players, and that any state-law claims inconsistent with federal labor law must be dismissed.  For those reasons, the two remaining Minnesota state law claims also should be dismissed and we have asked the federal court of appeals to do so.”
With all due respect, and in light of the United States Supreme Court’s very recent decision in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (April 1, 2009), the league’s position is, in our view, not correct.
As the 14 Penn Plaza case illustrates, federal labor law does not overcome individual lawsuits alleging violations of statutory rights, unless the Collective Bargaining Agreement in question specifically includes such rights within the scope of the claims to be resolved via the arbitration procedure created by the CBA.
In other words, the CBA has to say that claims arising under any applicable statutes are covered by the arbitration procedure.  Otherwise, the claims may be separately pursued.
In 14 Penn Plaza, the CBA applicable to employees of a commercial office building specifically included potential claims arising under federal and state statutory discrimination laws:  “There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations.   All such claims shall be subject to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations.  Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.”
In this case, the Minnesota claims would have been overcome if the CBA between the NFL and the players’ union had specifically listed claims arising under the Minnesota Drug and Alcohol Testing in the Workplace Act and the Consumable Products Act as being subject to the arbitration procedure.
Such an approach would not have extinguished those rights — instead, it would have required the question of whether those rights were violated to be addressed by the Commissioner or his designee as part of the arbitration procedure.  But it would have blocked a separate lawsuit, forcing the players to rely upon the forum that necessarily is favorable to the league because it is run by the league.
Moving forward, then, the league needs to identify every potentially applicable state and federal drug-testing statute, and the league needs to include claims arising under those statutes within the scope of the claims that players are required to arbitrate.  The league also would be wise to ensure that the drug-testing policies and procedures take into account the requirements of the statutes of the various states in which NFL teams are headquartered.
Of course, including within the CBA specific reference to the laws of Minnesota or any other state would require the agreement of the union, and thus it will require some concession to be made by the league.
Our suggestion?  The union should offer to include moving forward all relevant statutory claims within the scope of the CBA’s arbitration provision, in exchange for an agreement to abandon the suspensions of Kevin and Pat Williams, Saints defensive ends Charles Grant and Will Smith, free-agent running back Deuce McAllister, and Lions defensive tackle Grady Jackson.
Of course, such an outcome makes way too much sense to ever happen.

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28 Responses to “League’s Confidence In StarCaps Defense Might Be Misplaced”
  1. walk26 says: May 26, 2009 6:30 PM

    This Viking’s homer Florio sure won’t let this go will he? Write about Favre to the Vikings more you homer!

  2. zertrat says: May 26, 2009 6:37 PM

    Lawyers. Pino Florio and the lot. They say things like “the league’s position is, in our view, not correct,” which would make any high school English teacher cringe. Emmitt Smith could do better. But fight the fight, dear attorneys, for the just cause, in any way that makes you sound more complex than you are. Lawyers: can’t live with them, can’t live without them.

  3. SJsports66 says: May 26, 2009 6:45 PM

    There you go Florio, you should have written the brief for the Federal Court.

  4. peters346 says: May 26, 2009 7:01 PM

    Does this Supreme Court ruling affect how the actual merits of this case are considered, or does it merely allow the players’ claims to be separately pursued?

  5. ZN0rseman says: May 26, 2009 7:01 PM

    The NFL is playing hardball now, but they’ll probably be begging to end this sooner rather than later.
    As I said once before, and I’ll keep saying for as long as this farse continues…
    What the league did here was about the same as this:
    Let’s say your company does random drug tests. You’ve been working there for years and going to the same coffee vendor next door every morning. Your company endorses that coffee shop and encourages people to go there. A few years later, they find out that coffee vendor is spiking his coffee with trace amounts of heroin. Instead of telling you and the other employees about it (because they fear getting into trouble for endorsing the coffee shop if they do) they send out an an obscure email recommending that people use a different coffee shop further down the block, and mentioning that you can’t wear hats, ties and other apparel with that company’s logo while at work, which you weren’t doing anyway, so who cares. After another year or so, they then decide they need to make a few examples out of people to further deter people from continued use of that coffee shop. So they “randomly” test you and a select few other employees that they know are going to that coffee shop regularly. They also made sure that they picked those people from choice positions (expendible people) within the company. When you and the others come back with positive results for heroin in your “random” tests, they fire you with the statement that, you’re responsible for what is in your body, even if you didn’t know it was there.
    Later, all of this is proven to have happened exactly as I described it above.
    Now, how do you think that case would play out in court if the company involved was somewhere in corporate America instead of being the NFL?
    That’s basically the same as what the NFL did. The Coffee shop is the Starcaps product. The email is the notification that you can’t endorse Starcaps. The select few (expendible) employees were guys that were near retirement, unimportant, or who were on small market teams that don’t generate a lot of revenue for the NFL.
    And knowing is half the battle.

  6. JakeDSnake says: May 26, 2009 7:40 PM

    “ZN0rseman says:
    May 26th, 2009 at 7:01 pm
    …And knowing is half the battle.”
    Yo Joe! You forgot to mention that the coffee shop was added to a list of stores the employees were not allowed to enter, and it was this list – not the obscure email – that the employees needed to check prior to ingesting any beverages or food products. Also, the coffee shop was not, in fact, next door but had to be special ordered for delivery: thereby giving the employees even more time to check the verboten list, which they did not. You also failed to work in the benefit of drinking their coffee as opposed to the coffees from approved vendors…
    …now as to the league having to give anything up in order to change the CBA regarding PED testing: utter nonsense. What did MLB have to give up most recently (as the last of the major sport leagues to implement a PED policy)? Nada. Zilch. The null set. If the NFLPA declines to change the policy, the NFL throws up their hands and lets the players take the PR hit. “Hey, we tried to set an example for the sport-playing yutes of America, be DeMaurice, the Space Cowboy, the Ganster of Love, said no.”

  7. Carolina Homie says: May 26, 2009 7:47 PM

    Mr ZN0rseman
    Please define “obscure email” because this is what Mr. Florio reported from the ruling.
    “Judge Magnuson points out that the “discovery” process of the StarCaps litigation, during which the parties ask each other for documents and other materials, uncovered a memo from the NFLPA to player agents making clear that the products of Balanced Health Products were forbidden: “Players are prohibited from participating in any endorsement agreement with this company or using any of their products.””
    That says prohibited from using the pruducts. Case closed. Let’s add that to your little scenario. Your employer stated that no member of the company was to have any dealings with that company. The agreement that your union had with him allowed him to do this. You chose to go there anyway. The heroin shows up in your system on a random test which you appeal based on you never knowing took heroin, you just went to a coffee shop that the boss had placed off limits.

  8. zod says: May 26, 2009 7:50 PM

    znorsiepoo
    If you’re not taking drugs, might I suggest you begin. Or are you just a florio smurf? This is an NFL slam dunk. It takes a difference of opinion to have a horse race. I’m with the NFL and I’m willing to back my opinion, just in case anyone is interested. florio has led me to believe that he no longer wagers. Come get me!

  9. jimicos says: May 26, 2009 7:57 PM

    zertrat says:
    May 26th, 2009 at 6:37 pm
    Lawyers: can’t live with them, can’t live without them.
    ————————————
    The correct statement is: Lawyers: can’t live with them, can’t bury them in a shallow grave in your backyard.

  10. SkinsFan says: May 26, 2009 7:57 PM

    “Our suggestion? The union should offer to include moving forward all relevant statutory claims within the scope of the CBA’s arbitration provision, in exchange for an agreement to abandon the suspensions of Kevin and Pat Williams, Saints defensive ends Charles Grant and Will Smith, free-agent running back Deuce McAllister, and Lions defensive tackle Grady Jackson.”
    I rarely agree with Florio’s personal opinions, but here I absolutely agree. Given, the fact that player’s have legitimate claim under MN law (where the NFL and NFLPA dropped the ball in the CBA) and the fact that it is obvious that the players were not intentionally violating the policy in question – it seems appropriate for the league to chalk this one up as a loss and move on.
    Then the question becomes if the NFL made the proposal would the NFLPA agree to the concession in the CBA or would try to use it as leverage in another bargaining area? (unfortunately, I think I know the answer)

  11. jimicos says: May 26, 2009 7:59 PM

    From the article:
    Our suggestion? The union should offer to include moving forward all relevant statutory claims within the scope of the CBA’s arbitration provision, in exchange for an agreement to abandon the suspensions of Kevin and Pat Williams, Saints defensive ends Charles Grant and Will Smith, free-agent running back Deuce McAllister, and Lions defensive tackle Grady Jackson.
    Of course, such an outcome makes way too much sense to ever happen.
    ————————————
    Yes, by all means it makes so much sense for the NFL to admit a failure to enforce its own rules. That makes a lot of sense, especially with a new CBA on the horizon and a new head of the players union to deal with.
    Bend over and take it, NFL. For no other reason than because you’ve been challenged.

  12. Kidekk says: May 26, 2009 8:00 PM

    zertrat, what’s wrong with the selection that you pointed out? The commas are paranthetical commas, and what he is doing is not making the statement one of fact. I don’t understand. Plees inlitin me.

  13. outofbounds says: May 26, 2009 8:12 PM

    here’s something that makes way to much sense…..they take the 4 game suspensions as written in the CBA,like every other player has, or they can’t play in your league…go to Canada, FAT ASSES

  14. DGNR8 says: May 26, 2009 8:56 PM

    “can’t bury them in a shallow grave in your backyard”
    ————————————————————————————————–
    Can’t is such a relative term…………….

  15. Gabby says: May 26, 2009 9:31 PM

    With all due respect . . .
    Did the statute in question in 14 Penn Plaza affect interstate commerce? And didn’t the employees sue under the federal (not state) ADEA?
    To me, Florio’s analysis only makes sense if all 32 NFL teams are in the state of MN.
    I don’t claim to be labor or constitutional law but the case cited appears to be distinguishable and not dispositive. Did the Williams’ lawyer provide this case as authority? If that’s the best they can do, they’re in trouble. But at least the lawyers are getting paid.
    Florio’s paragraph beginning with “Moving forward, then . . .” and the the one that follows purport to offer a solution, but in reality, this would result in an unworkable mess: What happens when MN or other states add new laws with new procedural and substantive requirements after the new CBA is signed? Are the League and the Union supposed to renegotiate the CBA mid-term to maybe incorporate additional and/or revised state laws the instant some state legislator gets a bug up his you know what?
    Florio’s “solution” also results in different rules for different players depending on what state the team is in. The Vikings players would be entitled to CBA arbitration of their rights under the 2 MN laws in question. The Saints players would be entitled to CBA arbitration of their rights under . . . .oops, never mind. Nothing to see here folks, move along. (Maybe the IL legislature should pass a law providing that athletes who come up hot for steroids can only be disciplined after no fewer than 5 positive tests . . .should that too be incorporated into the CBA arbitration provisions? Sound good, Bears fans? What say you, Vikings fans?)
    IMHO, Florio’s “solution” demonstrates why application of specific state laws in this situation would likely violate the Commerce Clause. Sports leagues are engaged in a business that requires some semblance of uniform application of the uniform rules, in order to have any credibility. 20 different sets of drug testing, disciplinary and eligibility rules to be arbitrated would make that goal quite difficult to obtain.

  16. JDUBBS1280 says: May 26, 2009 9:38 PM

    Few points…And some facts people need to get straight….
    1. This will NOT give the Vikings players preferential treatment. If the ruling goes in the Williams’ favor, the NFL will have to adjust its testing policy to comply with all state and federal laws (something they should have done anyway). ALL players will get this protection.
    THIS WILL NOT END IN PREFERENTIAL TREATMENT.
    2. If the Williams’ had tested positive for steroids, they would not be offered the same protection under these laws. However, they didn’t test positive for steroids. They tested positive for a diuretic.
    I understand that this particular diuretic “could” be used as a masking agent, but the NFL’s own Dr. in charge of testing (Dr. Lombardo) already testified that he believes the players were only using it for weight loss. He also testified that he doesn’t believe they should be suspended.
    GET THIS STRAIGHT. THE NFL HAS ALREADY CONCEDED THAT THEY WERE NOT TRYING TO MASK STEROID USE.
    4. In my opinion, the NFL has a VERY tough time arguing “strict liability” when 8 players tested positive for the same diuretic between 2005-2007 and NONE were suspended. There is nothing strict about that.
    WHAT STRICT LIABILITY? EIGHT GUYS HAVE ALREADY TESTED POSITIVE AND GOT OFF. THERE IS NOTHING STRICT ABOUT THE WAY THE NFL HAS HANDLED IT’S POLICY.
    5. For those of you who think the league will try and FORCE the Vikings into not playing these players, you are dilusional. The league isn’t out to punish the Vikings, like many of you are. They are out to punish the players. If they lose this case, the Williams will play. End of story.

  17. JDUBBS1280 says: May 26, 2009 9:40 PM

    outofbounds says:
    May 26th, 2009 at 8:12 pm
    here’s something that makes way to much sense…..they take the 4 game suspensions as written in the CBA,like every other player has, or they can’t play in your league…go to Canada, FAT ASSES
    =====================================================
    Eight other players tested positive for the same diuretic, yet weren’t suspended. Take the time to learn the facts before you open your incredibly big mouth and advertise your ignorance and\or stupidity.

  18. CanadianVikingFan says: May 26, 2009 10:07 PM

    I don’t want to read all that.

  19. jimicos says: May 26, 2009 10:09 PM

    JDUBBS1280 says:
    May 26th, 2009 at 9:40 pm
    Eight other players tested positive for the same diuretic, yet weren’t suspended. Take the time to learn the facts before you open your incredibly big mouth and advertise your ignorance and\or stupidity.
    ————————————-
    ..said the guy who can’t count to five.

  20. shalstein67 says: May 26, 2009 11:34 PM

    14 Penn Plaza is only about arbitration of claims and whether a union can prospectively waive judicial review of a statutory claim in favor of arbitration. Penn Plaza limits that right to where there is a clear, unmistakable waiver, of a statutory right, which weakens earlier holdings of the Court.
    Based on the earlier holdings, unionized employees essentially had two bites at the apple to press a statutory right: both through arbitration and the courts. The primary reason was that the union, and not the employee, controls whether or not to take a claim to arbitration, so the emplyee could potentially be left without review of a statutory right.
    None of the relevant cases deal with state laws; they deal with discrimination statutes only including the ADEA, ADA, and Title VII, and could most likely be applied only to other discrimination statutes.
    I think it is more likely that the NFL will argue that the Minnesota statutes should be preempted by federal labor law because the laws alter the bargaining status (interplay of economic forces) between the parties. Not having read the statutes, I don’t know how intrusive they would be in comparison to other rulings, but different circuits have had major differences in opinion on the subject.

  21. Sociofan says: May 27, 2009 12:01 AM

    Danged Armchair Attorneys.
    The bottom line in this is whether or not those clowns KNEW that the punch was spiked. Unfortunately, under the CBA, you are guilty until proven innocent and it’s a whole lot harder to prove you didn’t know something than proving that you did. The league holds the cards, but they should think real hard about whether or not they want to play them in this hand.
    And by the way, you can’t bury the lawyers in backyard shallow graves because they are so full of that brown stuff that the Health Department will condemn your property if you do. Raw sewage claims and all that.

  22. JDUBBS1280 says: May 27, 2009 12:32 AM

    jimicos says:
    May 26th, 2009 at 10:09 pm
    JDUBBS1280 says:
    May 26th, 2009 at 9:40 pm
    Eight other players tested positive for the same diuretic, yet weren’t suspended. Take the time to learn the facts before you open your incredibly big mouth and advertise your ignorance and\or stupidity.
    ————————————-
    ..said the guy who can’t count to five.
    ===================================================
    I copied and pasted from another post, then removed a point that wasn’t applicable. I’m certain that I’ve been able to count to five (even much higher) for quite some time now. Maybe you should focus your efforts on making a valid point rather than pointing out trivial oversights.

  23. outofbounds says: May 27, 2009 8:40 AM

    JDUBBS….
    you should talk about making valid points(not your foolish HOMER opinions)….or pointing out trivial oversights(all the other players have served their suspensions ….as in all previous failed NFL drug tests up to the starcaps fools, you IDIOT)….and opening your incredibly big mouth to show off your stupidity (that has spoken for itself with your posts)…the CBA applies to everyone not a handful of fatasses….it is the NFL’s league…abide by the rules or go elsewhere….

  24. jimicos says: May 27, 2009 9:44 AM

    JDUBBS1280 says:
    May 27th, 2009 at 12:32 am
    ===================================================
    I copied and pasted from another post, then removed a point that wasn’t applicable. I’m certain that I’ve been able to count to five (even much higher) for quite some time now. Maybe you should focus your efforts on making a valid point rather than pointing out trivial oversights.
    —————————————
    And maybe you should go light on the “advertising ignorance and stupidity” comments when you put it on full display yourself. I’ve made my points, without copying them verbatim from thread to thread.
    Rules are rules. No one disputes that these guys broke the rules. And no one’s disputing that now they’re trying to get out of paying the price.

  25. zod says: May 27, 2009 10:56 AM

    Q: What do you call 20 lawyers parachuting?
    A: Skeet

  26. ZN0rseman says: May 27, 2009 11:13 AM

    —————————————-
    – @ Carolina Homie & JakeDSnake
    —————————————-
    First off, all that the league ever did was to send a memo to the NFLPA stating that teams and players could no longer endorse Balanced Health Products. That memo only means what it says. It does NOT mean that they said that players could not use Balanaced Health Products… had they said that, the NFL wouldn’t be at fault here. So, the type of memo that was sent was meaningless to the players, as the NFL says players can’t endorse certain products all of the time… and just because the NFL endorses Reebok, it doesn’t mean that players can’t wear Nike shoes in the gym. You also need to remember that when the players taking Starcaps called the NFL Hotline for players to verify that the substances they were taking were okay, the hotline told them that Starcaps was okay because none of official list of ingredients for Starcaps did not include the diruetic… which is illegal.
    It’s also noteworthy that several years ago, many teams were actively giving Starcaps to players as a weightloss suppliment. On top of that, you really need to think about the fact that the league came out and told the NFLPLA that players could no longer endorse Balanced Health Products. Balanced Health Products is the maker of Starcaps. If they were telling players that they could no longer endorse those products, it certainly would lead one to believe that at least someone in the NFL had already been endorsing those products.
    At the time of that notification, the league knew that Starcaps contained a banned, illegal and dangerous substance but they chose not to tell the players about it for years, putting their health and livelihood at serious risk. Two things which the NFL is not intentionally allowed to do per their legal contracts with the NFLPA. The NFL intentionally and willfully broke the rules, Pat and Kevin Williams did not… in this case, they are the victims of the NFL’s misdeeds.
    Also, I would like to point out that at no point did Pat Williams or Kevin Williams or Duece McAllister or Grady Jackson or any of the many other players taking Starcaps intend to ‘break the rules’ as many of you are contended. Your contention is simply not true. Rather, they followed the rules to the letter in every way that they could. They were, taking a commonly used weightloss suppliment that at no time was ever banned by the league, and in some cases was actually being distrubuted by NFL teams to their players. Several of them called the NFL Hotline to confirm that it was okay to take, and the NFL Hotline told them it was fine.
    What more could they do???
    COBRA!!!
    –Z

  27. ZN0rseman says: May 27, 2009 11:23 AM

    ————————————
    – @ Gabby
    ————————————
    So, essentially you’re trying to say that state laws should be completely irrelevant when dealing with sports organizations that are on a national or international scale?
    That’s an interesting theory.
    Just off of the top of my head, I can think of 50 State Supreme Courts who would strongly disagree with you. Where did you get your law degree? MoscowUniversity.com???
    Just curious…

  28. outofbounds says: May 27, 2009 5:25 PM

    Znorseman…..
    the super HOMER queenie poster…give it up….several of them did not call the hotline….only one and that was Duece some time ago….but then you have the memo that was sent out saying not to take any product from this company….so after that memo was sent out he and all the others should have been calling again (or maybe working out) …but none of them did and they are now gonna have to pay……it’s funny how the approx other 1800 NFL players new to stay away from this….and still it is a product that masks steroid use and steroids can also be used to make injuries heal faster…nobody can say “oh they were just taking them to lose weight look at how fat they are”….nobody knows….it is actually a reason they would take the product so they would have a cover because they are fatasses who don’t want to work out

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