Usually, captains of private industry who are dragged before Congress prefer that the nation’s primary lawmaking body refrain from sticking its nose into the private industry’s business.
This time around, the NFL is applying a much different approach. The NFL is asking Congress to pass a law that will close a glaring loophole in the league’s substance-abuse policy and testing program, due to drug-testing statutes in states like Minnesota.
In a transcript of the remarks that NFL Commissioner Roger Goodell will make to a Congressional committee exploring the StarCaps litigation, which has enabled multiple Vikings and Saints players to avoid four-game suspensions after testing positive for a banned substance, Goodell advocates “narrow and specific legislation that would confirm the primacy of federal labor law and respect agreements on this important subject.”
We agree. As we pointed out several days ago, “By passing a narrow law declaring that the terms of
a collectively-bargained drug-testing program applicable to businesses
operating in interstate commerce preempt any state laws that might
otherwise apply, the loophole would be forever closed.”
Our only regret is that the NFL continues to overplay its hand in this regard, incorrectly blaming the union for supporting a lawsuit that the union was compelled to support.
As the league would have Congress — and anyone else who cares — believe it, the NFLPA betrayed the league by assisting the efforts of the members who faced suspension based on the consumption of StarCaps, an over-the-counter supplement that had been secretly spiked with a banned substance. But the evidence in this case supports a finding that the league knew that StarCaps had been spiked with a prescription drug, that the league knew players had been taken StarCaps, and that the league issued no specific warning to the players that taking StarCaps could be hazardous to their careers — and more importantly to their health.
As we’ve said many times in the past, the fact that the the internal appeal process tilts so heavily toward the league forced the union to help its members. Failure to do so could have resulted in a potentially viable lawsuit for breach of the duty of fair representation.
So our preference would be for the league to take a big step back from the legal niceties of the case, acknowledge that the league’s information regarding the truth about StarCaps should have been specifically shared with the union, and realize that the NFLPA’s role in the matter didn’t amount to slapping the league in the face with a white glove.
The union was merely doing its job.
If the league can’t or won’t accept that, then maybe we all really should be making alternative plans for the months of September 2011 through early February of 2012. Indeed, if the league and the union can’t get on the same page regarding such a basic concept, they’ll never be able to hammer out a new Collective Bargaining Agreement.