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.