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.”