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On StarCaps, league points finger in the wrong direction

As the NFL continues to process the aftermath of the fact that the union and several players have successfully fought in court the imposition of four-game suspensions for violating the policy regarding steroids and banned substances, the league is acting at times like a spoiled fat kid who didn’t get his way.

And so, to no surprise, the league is now thinking about taking its bat and ball, and going home.

According to Mark Maske of the Washington Post, NFL general counsel Jeff Pash says that the league might transfer control over its steroids policy and program to an outside entity or a federal agency, given the league’s belief that the NFLPA didn’t sufficiently support the current program in the cases of Kevin Williams, Pat Williams, Charles Grant, Will Smith, and Deuce McAllister.

“It doesn’t serve anyone’s interests to have a program like this
fragmented by wide-ranging state laws,” Pash told Maske via phone on Thursday.  “If we can’t administer the program on our own, we might
have to turn to an outside entity like WADA [the World Anti-Doping
Agency].  One thing we don’t want to do is shut the program down,
because it has served everyone well.”

But what was the union supposed to do?  The players have rights.  The union has a legal duty to advance those rights.  That’s one of the basic realities of discipline imposed pursuant to rules established by collective bargaining.

NFLPA spokesman George Atallah confirmed this fact to Maske.  “Our intentions were not to challenge the overall system,” Atallah said.  “Our
intentions were to protect our players from an isolated abuse and
injustice from within the system.”

Pash, however, strongly disagrees.

“We’ve had for the better part of two decades a collectively bargained
program which I think has worked very well, and most people who have
looked at it think it’s worked very well,” Pash said.  “It has been a
real credit to the NFL and the NFL players.  The union’s failure to
support it in the StarCaps case has resulted in it being compromised. .
. .  Now we have players being subject to two sets of rules.  Who knows,
six months from now it might be 10 sets of rules.”

We disagree with Pash.  If the league properly had taken into account the laws of Minnesota and other states when negotiating the CBA, there would be only one set of rules.  And Pash should know by now whether any of the other states in which the NFL does business has statutes providing rights that potentially supersede the CBA; our guess is that the number is far less than ten.  In fact, we’d put the over/under at 2 — and we’d be tempted to take the under.

Moreover, both sides are responsible for creating an environment in which lawsuits potentially are filed.  The league somehow secured at the bargaining table the power to act as judge, jury, executioner, appeals court, and (as Grant, Smith, and McAllister learned on Tuesday) pardon-granting governor.  But if this is a partnership, the union should have a voice in the resolution of contested cases under the drug and steroids policies, and the union failed all of its members by agreeing to such a lopsided internal review process.

So instead of scrapping the entire program, why doesn’t the NFL simply admit that it currently is flawed, and then attempt to fix those flaws?

Instead, Pash seems to be blaming the flaws completely on the union, which really had no choice but to stand up for its players in this case, especially in light of evidence that the league knew StarCaps had been secretly spiked with a prescription drug that also is a banned substance, and that the league failed to behave like a true partner would have been expected to behave under those circumstances — by sounding an alarm to the NFLPA that all players should immediately be warned in no uncertain terms that taking StarCaps could be hazardous to their health.

I’m often accused of being too pro-league when it comes to matters of labor law (despite nearly a decade of representing employees in lawsuits against their employers).  Maybe, at times, my vision has clouded by the fact that, after following football for more than three decades, pro football at times is more about the league and the teams than it is about an ever-changing collection of men who wear the uniforms or patrol the sidelines on game day.

Regardless of whether any such biases have influenced my past thinking, let me be clear on this one.  The NFL was wrong to not clearly and unequivocally warn the players as to the truth about StarCaps, and the NFL is wrong to now blame the fact that the suspensions have been blocked on anyone other than the NFL, both for failing to properly account for the laws of the various states when creating the program and for insisting on an internal appeals process that places so much power in the hands of the Commissioner that it often forces the union to challenge that power in court in order to fulfill its duty to properly represent the interests of its players.  (As to the latter point, and as mentioned above, the league can share the blame with the union.)

My much bigger concern is that, if the logic and attitude reflected by the league’s position on this issue is indicative of the logic and attitude that the league will bring to the ongoing CBA discussions, we should all start assuming that the only pro football we’ll be seeing in 2011 will have a “U” or a “C” before the “F” and the “L.”

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32 Responses to “On StarCaps, league points finger in the wrong direction”
  1. hrmlss says: Sep 18, 2009 12:05 PM

    Wow, what a steaming pile of lawyer blather……

  2. The RBM says: Sep 18, 2009 12:15 PM

    Excellent post Mike, one of the best Ive read from you.
    -The RBM

  3. jrhsd says: Sep 18, 2009 12:16 PM

    I can’t imagine how he did it, but Goodell has already become a worse commissioner than Bud Selig.
    Easily the least successful person to ever hold his position.
    That’s what you get when you pick a senator’s son to run a multibillion dollar organization when he has never done anything to qualify himself except work his whole life in an NFL job his daddy got him.
    Frankly, him getting his friend “Buzz” on NFL Total Access was a total disaster too. Looks like they have finally jettisoned him, thank god.
    The Old Boys Club of owners figured an “old boy” type hiring would be good, but Goodell is clearly WAY out of his league.

  4. Revacard says: Sep 18, 2009 12:21 PM

    Look ma…I read a Florio post!

  5. SFTitan says: Sep 18, 2009 12:23 PM

    Wow…. did anyone just read that. Booooring. Florio how about summarizing and reducing to one paragraph?

  6. Bob Nelson says: Sep 18, 2009 12:26 PM

    You flunked on that tirade.
    If the Union want respect as a union of professionals it will not want criminals cheaters and those taking steroid masking agents as members.
    Remember early on I reminded you the lawyer Florio that going to court always riks having bad law emerge.
    Well, now by giviing the testing to outside agents the results will in the future be reported to district attorneys who will not have discresion to ignore criminal behavior. Now instead of a private organization handling the results confidentially, the results will now be in official government records and open to the public and criminal prosecution.
    So instead of a 4 game suspension, the players will wind up with months in jail to years of prison time for felonies.
    Good, Good, and more Good.
    By giving it to an outside agency it removes any say the union has in the program.
    That’s the way a Union looks out for its players by abdicating its agreements to a CBA. The league has every right to cry foul. The Union shot another hole in its own foot with this one.
    I hope there is a weekly testing of every player.
    GET THOSE CRIMINALS OUT OF THE NFL!!

  7. pberg says: Sep 18, 2009 12:35 PM

    The league DID notify agents and team trainers…see below and from your good buddy Adam Schefter:
    http://blogs.nfl.com/2008/12/07/were-players-warned-about-starcaps/
    One of the most baffling aspects of the case involving StarCaps and the NFL policy on anabolic steroids and related substances is that the defense of the suspended players states the product was mislabeled and they were unaware that the supplement in question violated the policy.
    An NFL official said this week that two notifications specifically mentioning StarCaps were sent on December 19, 2006. One was sent to the presidents, general managers, and head athletic trainers of all NFL clubs. The second was sent to Stacy Robinson, the NFLPA executive who oversees the steroid policy on behalf of the union.
    This should have been the ultimate red flag that there was a problem with StarCaps.
    The letter to Robinson states that “Balanced Health Products, which distributes StarCaps, has been added to the list of prohibited dietary supplement companies. Please distribute this information to the agents and players through your normal channels.” In response, Robinson had Balanced Health Products added to the list of banned companies that is maintained on the NFLPA’s web site.
    If this is indeed the case, the players’ defense is all but blown up. Yet somehow on Friday, the suspended players got the temporary restraining order they needed to prolong their time with their teams this season. Yet oddly enough, they did it with the union suing its own program.

  8. Chickenfoot says: Sep 18, 2009 12:35 PM

    Why hrmlss, because it wasn’t anti Viking?

  9. Dustin Chandler says: Sep 18, 2009 12:39 PM

    TLNR

  10. Bill Cowher's Chin says: Sep 18, 2009 12:44 PM

    I wouldnt necessarily say that the league is pointing in the wrong direction, but this is a major fiasco. How can the league have an affective PED policy, if the players of certain teams, can hide behind the laws of the state for which that team plays in.
    The fact that the justice system even got involved is ridiculous to begin with.
    However, the fact that the league didnt tell the players about Star Caps, when they knew damn well it would violate the policy, well, they are getting what they deserve……
    But however this one plays out, he league needs to have a PED policy, that cant be challenged based on the regulations of each state. All 32 teams need to be governed by the same rules/laws/regulations, otherwise it is pointless to have rules….

  11. TomBradysBaby says: Sep 18, 2009 12:44 PM

    TLDR version:
    “The NFL was wrong to not clearly and unequivocally warn the players as to the truth about StarCaps, and the NFL is wrong to now blame the fact that the suspensions have been blocked on anyone other than the NFL, both for failing to properly account for the laws of the various states when creating the program and for insisting on an internal appeals process that places so much power in the hands of the Commissioner that it often forces the union to challenge that power in court in order to fulfill its duty to properly represent the interests of its players. ”
    This is the heart of the problem. If the League admits it screwed up it gives the Union an opening to wonder what else the League screwed up on the CBA. No way is the League going to put itself on a position of weakness this close to the next CBA.

  12. Quagmire says: Sep 18, 2009 12:45 PM

    The NFL, or NFLPA, should just put out a listing of approved supplements…if it’s not on the list don’t use it.

  13. footballrulz says: Sep 18, 2009 12:50 PM

    Damn Florio, tough room

  14. Kidekk says: Sep 18, 2009 12:53 PM

    Good article. I don’t know what the hell Bob Nelson is talking about, considering the numerous athletes who have been banned by WADA and not faced any prosecution (Marion Jones went to jail because she lied in court), but he obviously didn’t think through what he wrote.
    And, I guess you can’t win. While people, like me, will like this intellectual/lawyer-babble, others will pine for the sensational drivel that you sometimes (let’s face it, a lot of times) put out; you can’t win.

  15. YoMama says: Sep 18, 2009 12:56 PM

    ………………oh sorry. I just let out the biggest YAWN of my life. Just create a link for all the StarCraps stuff so all 1 of the people out there that are interested can read it.
    Oh, and don’t give me the “Well why did you post a comment? That’s dumb!” We all need something for entertainment. I can’t access porn at work, so this is the next best thing.

  16. russrpm says: Sep 18, 2009 12:56 PM

    When was the Minnesota law pass in relation to when the CBA was signed?

  17. Chickenfoot says: Sep 18, 2009 12:56 PM

    You know Bob, if 2 of the players were not Vikings, you wouldn’t give a rats ass about this subject. They aren’t going to an outside agency, this is going to be used as a bargaining chip, plain and simple, much like yourself Bob.
    pberg,I appreciate your take on it, but you are failing to realize that Minnesota has laws on its books protecting its citizens from, getting into trouble for what they do on thier own time. What they were taking wasn’t breaking the law, it was a banned substance in the NFL. Yes, it’s a technicality, but, if you were in a position, where a technicality could get you out of a situation, would you not take it?
    The NFL just needs to word the CBA differently on this matter and it is case closed. Pretty simple really.

  18. sonvar says: Sep 18, 2009 1:15 PM

    It’s very sad the NFL is taking this direction with it. The issue I feel is more to blame is that the NFL had a list of banned substances and some of those were never released like StarCaps. The NFL should always release a list of specific banned drugs as this would have made their job in this a whole lot easier. Since it was never listed the NFLPA has to back the players against the NFL trying to impose suspensions on them. I’m glad Minnesota law was able to delay this at the least and potentially stop it altogether because it’s not fair to the players. If a kid does something you feel if wrong but you’ve never told them you should tell them not to do it again not harshly punish them for something you never made them aware of.

  19. eaglealan64 says: Sep 18, 2009 1:36 PM

    Nice article even if it is TOTALLY wrong. The NFL repeatedly warned the Union about the dangers of supplements – its not their job to emphasise one over another.
    The NFLPA screwed up defending these 4 players as the result will be a much harsher, much more restrictive reigime. I hope the players enjoy telling WADA where they will be every day for the rest of their careers and then getting banned when their plans change.

  20. Tomb says: Sep 18, 2009 1:56 PM

    Florio is DEAD ON correct in this article. I have nothing more to add than he is DEAD ON correct.

  21. way2cold says: Sep 18, 2009 1:59 PM

    Great article.
    Oh and BTW, while the CFL joke at the end was quite funny, I can assure you it isn’t football! It’s more like….weekend-playing-with-your-drunk-friends league.

  22. onlineinsite says: Sep 18, 2009 2:02 PM

    Great Summary.
    The league needs to accept the ruling (just as they would expect the players to, if the ruling has been reversed!) and move on, and create a tighter agreement.

  23. ZombieRevolution says: Sep 18, 2009 2:04 PM

    Wow- Florio, a day after personally defending your take on a fumble to PFT commenter’s, maybe you should comment on pbergs post:
    pberg says:
    The league DID notify agents and team trainers…see below and from your good buddy Adam Schefter:
    http://blogs.nfl.com/2008/12/07/were-players-warned-about-starcaps/
    After you said “…the league is acting at times like a spoiled fat kid who didn’t get his way…” maybe you should defend a much more relevant topic- your apparently flawed post. If pberg and Schefter is right, you just lost quite a bit of credibility and most of an argument. The ups and downs of allowing comments…

  24. Zinn says: Sep 18, 2009 2:05 PM

    Nice article Florio. Whether the NFL notified the NLPA is under dispute. But in regards to the NLFPA you are dead right they have a duty to defend their players and if they did not they would expose themselves to being sued by their own players.
    I also agree the NFL is acting like spoiled brats. I really dislike Goodell and the NFL being judge, jury and executioner. But what choice does the union have. Their ability to negotiate is fairly limited. The NFL holds all the cards. The owners can hold out a lot longer, are much more aware of their own long term interests and will put up a much better fight protecting those interests. Players will always be about their own short term interests with little concern about future players. Expect whatever is agreed upon to be quite lopsidied.
    I hope the NFL knows what it is doing when it starts using the WADA threat. The NFL is all about marketing itself and controlling information. Letting WADA take control would be a serious mistake. We have all seen what WADA has done to professional cycling. Even worse the WADA labs have no standards, no discovery, and leave the athletes with essentially no ability to defend themselves against often suspect charges. The WADA president has shown an inability to control himself with repeated off the wall statemenst attacking athletes, teams and sports. Dick Pund used his position to help destroy cycling in the press. He has also attacked Hockey and North American sports in the press. Their testing is all about politics with little concern whether the athletes are actually testing positive. WADA would love nothing more than the ability to take over the NFL. They would politicize it, continue their practice of leaking drug tests, and push for 2 year 1st offense bans for first offenses and life time bans for 2nd offenses. WADA really could do some damage to the NFL taking the emphasis away form the good done on to the field to a constant politicized witch hunt to ban players.

  25. purpleguy says: Sep 18, 2009 2:13 PM

    Geez is Bob Nelson a dope. As to the Starcaps case, the issue is use of a banned diuretic which isn’t even an illegal substance under federal or state law subject to criminal penalties for it’s use(only the collective bargaining agreement bans it). There is no dispute this non-illegal substance is at issue, and the NFL has admitted, at least with respect to the Williams boys, that there was no steroid masking and thus no illegal steroid use.
    This is one of the very issues in conflict with Minnesota law in the Williams portion of the case, as one of the statutes at issue limits employee punishment for taking a substance which isn’t illegal (as opposed to, for example, the marijuana and non-prescription codine found in John Jolly’s car).
    Maybe the proper explanation for this has to be set out in a fashion similar to those who are whining about the matter much like the self-serving dribble coming out of the NFL’s front office — TAKING A DIURETIC ISN’T A FLIPPING CRIMINAL OFFENSE!!!!!!!!

  26. BFCerdo says: Sep 18, 2009 2:28 PM

    Bob Nelson,
    Bumetanide doesn’t mask steroid use. Modern drug tests are advanced enough to look for smaller traces when water pill use is detected. Regardless, the only criminals here are the makers of StarCaps, which illegally put a controlled substance into an over the counter supplement.
    Calling the people who ingested StarCaps “Criminal” is ridiculous. Imagine someone slipping a mickey into your drink and then raping you. Then when you regain consciousness, you report it to the police, and immediately get arrested for taking an illegal drug.
    pberg,
    Please look into what the “prohibited dietary supplement companies” list really means. I’ll give you a head start – it means the company is known to make some product that includes a banned substance, and therefore NFL players are prohibited from endorsing that company. The NFL, did NOT say StarCaps contained a prohibited substance. They said the company that manufactures StarCaps is on that list, meaning they market some product(s) that are prohibit.
    For what its worth, practically every over-the-counter pill can be called a dietary supplement. Vitamins and minerals are classified as dietary supplements per federal law. Gatorade is a dietary supplement, and it is not on the list of approved supplements. How many teams are serving Gatorade on the sidelines? Face it – EVERY NFL PLAYER is taking a “dietary supplement” (as US Federal law defines it) that isn’t on the approved list. Every single one of them.
    Heck, what if someone spikes a batch of Gatorade at the plant? Will the NFL suspend everyone for four games?

  27. cmwilk says: Sep 18, 2009 2:55 PM

    I think the best thing the league could have done in this case would have been to look at the circumstances surrounding the case, realized that there were flaws in the system, acknowledged that this was not an open and shut case and that both sides should accept a portion of the responsibility to fix the problem. Instead they choose to take the stance that we said what we said and no matter what this there will be no discussion. I think at some point you need to look at the potential outcome of the battle before you start the fight. What do I have to gain if I win and what do I stand to lose if I lose. If the NFL wins you have a suspension that has obviously created animosity and in the eyes of the public is unfair. If you lose you may have completely compromised the integrity of the system. Someone should have take the time to think this through. Good for you Williams Wall, and Saints players for standing up for what is right.

  28. JimmySmith says: Sep 18, 2009 3:01 PM

    Typical lawyer talk, a lot of gibberish but the bottom line remains, two Viking players went all out in an attempt to beat the rap and in doing so, flushed the whole thing down the drain.
    Let them claim their rights, but nobody can deny they were caught with an illegal substance in their fat bodies and the penalty of a 4 game suspension is hardly worse than the alterative, playing for Mr. Noodle and the choke-artists otherwise known as the Vikings.

  29. Chickenfoot says: Sep 18, 2009 3:52 PM

    Jimmy, it’s only gibberish to you, because you don’t understand it. Then again, you don’t understand much over a 3rd grade reading level.
    For the last time, it isn’t an illegal substance. What it was spiked with is. Now speaking of illegal, Jolly green gigantic ass, what he was caught with. is illegal. I am guessing if these 2 guys were on any team but the Vikings or Bears, you wouldn’t give a fiddler’s fart about it. You aren’t ripping the Saints players. You are a 1st class asshat. It’s ok. Hatred is fear. For the venom you spew, you must be really scared of the Vikes this year, as well you should be.

  30. pberg says: Sep 18, 2009 4:22 PM

    BFCerdo, put this in your pipe and smoke it…
    http://www.wapt.com/news/18189789/detail.html
    - The policy contains numerous specific warnings about dietary supplements. NFL players received separate advisories regarding supplements (attached). These included two memos from Dr. John Lombardo (the program’s independent administrator) entitled “Weight Reduction Products,” which were sent to players in July of 2007, and again in July of 2008.
    - In addition, two notifications specifically mentioning Star Caps were sent on December 19, 2006. One was sent to the presidents, general managers, and head athletic trainers of all NFL clubs. The second was sent to Stacy Robinson, the NFLPA executive who oversees the Steroid Policy on behalf of the union. The letter to Robinson states that “Balanced Health Products, which distributes Star Caps, has been added to the list of prohibited dietary supplement companies. Please distribute this information to the agents and players through your normal channels.” In response, Robinson had Balanced Health Products added to the list of banned companies that is maintained on the NFLPA’s website.

  31. Chickenfoot says: Sep 18, 2009 7:21 PM

    Pberg, It still doesn’t preclude state law!

  32. SpartaChris says: Sep 18, 2009 8:30 PM

    Quagmire says:
    September 18, 2009 12:45 PM
    The NFL, or NFLPA, should just put out a listing of approved supplements…if it’s not on the list don’t use it.
    ===================================
    There is one. Use of anything not on the list is at your own risk. Allegedly.
    @Chickenfoot-
    He never said it did. He correctly pointed out why the argument that players were never notified is crap.

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