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Chargers express disappointment regarding Kevin Ellison arrest

We’ve received plenty of e-mails from readers this afternoon regarding the arrest of Chargers safety Kevin Ellison for possession of 100 Vicodin pills.  And that tells us that not enough of you are clicking “next” at the bottom of the first page of the Rumor Mill.

So we needed to find a way to legitimately mention the case again.  When the Chargers issued a statement on the situation, we did.

“It’s disappointing to hear about the issue involving Kevin Ellison,” said G.M. A.J. Smith, the man who picked Ellison in the sixth round of the 2009 draft.  “We’ll continue to monitor the situation and let the legal process run its course.”

It’s the right move by the Chargers.  The league has exclusive jurisdiction over matters of this nature, and the teams have no power to discipline a player charged or convicted of a drug-related offense.

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Chargers safety busted with 100 Vicodin pills

KeithEllisonMugshot.pngLess than a month after the Saints found themselves facing allegations regarding the misuse and/or abuse of Vicodin by two members of the coaching staff, the Chargers have a player who faces criminal charges of possession of the powerful pain medication.

After being stopped for speeding in the vicinity of the high school he once attended, police found 100 Vicodin pills in the vehicle driven by safety Kevin Ellison.  He was released on $10,000 bail.

Ellison, a sixth-round pick in the 2009 draft, started nine games as a rookie in San Diego.  He attended USC.

His brother, Keith, plays linebacker for the Bills.

Several years ago, another Chargers safety, Terrence Kiel, was charged with shipping codeine-laced cough syrup to Houston.  Kiel later died in an automobile accident.

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Jeff Pash promises victory in American Needle, says it won’t affect CBA talks

In a Monday discussion with reporters at the ownership meetings in Dallas, NFL general counsel Jeff Pash spoke about the stunning 9-0 ruling from the U.S. Supreme Court in the American Needle case regarding the inapplicability of the “single entity” defense to the NFL.

“We remain very confident about the ultimate outcome of this litigation.  I have the highest degree of confidence that when it is decided it will be decided in our favor,” Pash said.

“I don’t have the slightest doubt about it,” Pash added a bit later.  “I’m as confident of that outcome as can be.”

Pash explained that today’s ruling addresses only whether the NFL can avoid liability for antitrust violations based only on the idea that the league is a “single entity.”  Thus, the league could still win the lawsuit, via the more complicated process of applying the so-called “Rule of Reason,” which looks at whether any impact on the competition and consumers is reasonable and justified.

Pash also spent several minutes explaining that the ruling has no bearing on the Collective Bargaining Agreement with the union, because in his view those matters weren’t at issue in the present case.

“It doesn’t mean anything,” Pash said.  “This case was never about labor.  We never, ever, ever argued that this had anything to do with labor.  We argued to the Court that it didn’t have anything to do with labor.  And I think the Court’s opinion doesn’t address labor, not in any way, shape, or form.”

We respectfully disagree.  Pash previously has acknowledged (sort of) that the NFL regards itself as a single entity for labor purposes — and he has admitted that the league raised that issue in the antitrust case filed by the NFLPA after decertifying in the wake of the 1987 strike.  Moreover, NFL outside counsel Gregg Levy seemed to argue to the Supreme Court in January that, indeed, the single entity argument would be used as to any antitrust challenge.

So, yes, even though the American Needle case wasn’t directly about labor, there’s an impact.  The single entity defense isn’t available, if the union were to again decertify and again sue the NFL for antitrust violations.  Though the league could very well win such a lawsuit, the reality is that the silver bullet has turned out to be a dud.

Though Pash also insisted that the ruling does not create any incentive to go to the bargaining table, the league’s arsenal of weapons against the union has been diminished.  We don’t expect Pash to admit it, but it’s the truth.

And while many believed that a deal between the NFL and the union would not be hammered out until the Court issued a ruling in American Needle, the challenge for both sides will be to provide the outcome with fair and appropriate meaning.  For now, the union is making way too much out of the decision, and the NFL isn’t nearly giving it enough credence.

Hopefully, both sides adopt a more pragmatic demeanor when discussing the case behind closed doors.

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American Needle decision spawns troubling rhetoric from the union

The NFLPA was worried that a victory by the NFL in the American Needle case would allow the league to undercut any attempt by the union to eventually decertify (like it did after the 1987 strike) and sue the owners for violating antitrust laws via the imposition of rules regarding free agency and the draft.  Instead, the NFL lost the American Needle case — and the ruling is prompting the union to twist the outcome into something much more than it really is.

“Today, the United States Supreme Court again made clear that the NFL is
not exempt from the anti-trust laws that all other American businesses
must follow,” the union declares in a press release.  “In reversing the appellate court’s prior ruling, the Court
found that the 32 NFL teams do not act as a ‘single entity’ such that
they are completely exempt from Section 1 of the Sherman Act.  In other
words, the NFL — despite its best efforts — is not above the law.
Specifically, in a 9-0 decision, the Court held that NFL teams do not
possess the ‘complete unity of interest’ necessary for an exemption.
Instead, each team is a separately-owned business entity competing
vigorously against the others, both on and off the field.”

Though that first paragraph contains plenty of feisty language, it’s not grossly erroneous.  That said, the final sentence completely overlooks the closing pages of the Supreme Court decision, which expressly acknowledges that some agreements among the teams may be justified.

But then the union really comes unglued.

“Although the case arose from an apparel license, the case and today’s
decision have a broad impact on the business of the NFL as a whole,” the release states.  “Had
the Court allowed the NFL to evade the anti-trust laws, ticket prices
would have increased, free agency would have ended or been crippled, the
way we watch football on television would have been fundamentally
altered and our states and local governments would have been held
hostage by a league with a Court-issued license to run wild.”

Um, really?  Ticket prices would have increased?  How?  Why?

And how in the world would the television viewing experience have changed?  Federal law already provides an antitrust exemption for broadcasting contracts.

As to the notion that state and local governments would have been held hostage, we don’t understand that one enough to even begin to frame a coherent criticism of it.

Then the union really pushes things into overdrive.

“The case
was originally brought by American Needle, a manufacturer of NFL-branded
hats,” the union states.  “In 2000, the NFL and team owners decided they could make more
money by selling an exclusive license to one company.  Reebok purchased
that right, prompting American Needle’s suit claiming that the teams of
the NFL colluded to limit competition in violation of the anti-trust

What the union ignores is that the effort to “make more money” necessarily “makes more money” for the players, since the players get 59.6 cents on the dollar.  So, basically, the union is celebrating the fact that the NFL has been thwarted in its efforts to “make more more,” both for the NFL . . . AND FOR THE PLAYERS.

NFLPA spokesman George Atallah pointed out on Twitter that today’s ruling “doesn’t mean we can pop champagne just yet” and that the proper sentiment is relief.  Meanwhile, the press release issued by his organization looks to be a spraying champagne all over the NFL — and necessarily all over itself.

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American Needle case weakens sports leagues, but the extent isn’t clear

Earlier this year, as oral arguments approached in the American Needle case, some fretted that a decision in favor of the NFL would dramatically change the landscape of professional sports.

With the decision rejecting the league’s position that the 32 NFL teams are a single entity for the purposes of apparel deals, it turns out that the decision could dramatically change the landscape of professional sports.

Though limited only to the context of transactions involving the licensing of logos and other “intellectual property,” the U.S. Supreme Court’s conclusion that an effort by the 32 franchises to come together and do business jointly potentially violates antitrust law could fuel a finding that the teams of no professional sports league may come together and make collective decisions regarding key business matters like the hiring of employees, the compensation paid to players, and rules regarding free agency and the draft.

And the parties filing such lawsuits may not only be spurned apparel companies or decertified sports unions but, say, an owner of a team who wants to move the team wherever he damn well pleases, or an owner who wants to sell the team to whomever he damn well pleases.

Or an owner who wants to hire a hotshot rookie without regard to the fact that someone else has “drafted” him, or an owner who wants to sign a kid right out of high school.

The possible contours of the eventual rules are unknown, and the final answer will be subject to the precise extent of litigation that any interested parties choose to file.

That said, the Supreme Court has acknowledged generally that limits apply; the only problem is that the Supreme Court has not endeavored to identify them.  “Football teams that need to cooperate are not trapped by antitrust law,” Justice John Paul Stevens wrote.  “The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions.”

Justice Stevens pointed out that the Supreme Court previously has recognized “‘that the interest in maintaining a competitive balance’ among ‘athletic teams is legitimate and important.'”  Though that interest does not allow the NFL teams to make a group deal for the purposes of marketing team logos for apparel, it “may well justify a variety of collective decisions made by the teams.”

In other words, the question of whether the NFL may combine to enter into agreements must be determined on a case-by-case basis, with specific consideration of the individual rules that are under attack.  When it comes to ensuring competitive balance via the draft and free agency, the final outcome to litigation that reaches the Supreme Court could be that the league may operate collectively.  When it comes to restricting teams from moving without the approval of 24 total owners, the final outcome to litigation that reaches the Supreme Court could be that the league can’t tell owners where to put their teams.

Every potential application of the concept is subject to further litigation.  The fact that the league lost so convincingly, via a 9-0 decision, will embolden others to seize upon the American Needle precedent in the hopes of applying it in other contexts, in the same way that many fear the NFL and other sports leagues would have done if the American Needle case had gone the other way.

For the fans, the end result isn’t clear.  To the extent that more time and attention and money are devoted to resolving lawsuits, it’s not a good thing.  To the extent that the law ultimately is applied in a manner that truly ensures the achievement of competitive balance among the 32 franchises, it’s not a bad thing.

Time will tell.  And it will take a lot of time before there’s a full spectrum of clarity in this regard.

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League downplays American Needle decision

After nearly three hours of silence that some regarded as deafening, the NFL has spoken in response to the U.S. Supreme Court’s decision in the American Needle case.

In contrast to the NFL Players Association, which has declared victory, the league has downplayed the unanimous ruling that the NFL is not a single entity when it comes to negotiating licensing deals for apparel.

“In today’s decision, the Supreme Court recognized that ‘special characteristics’ of professional sports leagues, including the need for competitive balance, ‘may well justify’ business decisions that among independent competitors would otherwise be unlawful,” the statement reads.  “The court noted that the NFL teams’ shared interest in making the league successful and cooperating to produce NFL football provide ‘a perfectly sensible justification for making a host of collective decisions.’

“The decision will simply result in American Needle’s claim being sent back to the federal district court in Chicago, where the case will resume in its early stages.  We remain confident we will ultimately prevail because the league decision about how best to promote the NFL was reasonable, pro-competitive, and entirely lawful.  The Supreme Court’s decision has no bearing on collective bargaining, which is governed by labor law.”

That last sentence is the most important.  If the league had won the American Needle case, the argument that the 32 teams represent a single entity surely would have been used in other contexts.  Moving forward, the league’s argument surely will be that a ruling made as to apparel deals has no bearing in other business contexts.

The league may have a point.  But before we get too far down that path, we need to post today’s PFT Daily, which explains the link between the American Needle case and the labor deal.

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Union calls American Needle outcome "a win for players past, present and future"

We’ve promised a stream of items regarding the Supreme Court’s ruling in the American Needle case.  Here’s the one containing the union’s official response to the decision.

“Today’s Supreme Court ruling is not only a win for the
players past,
present and future, but a win for the fans,” NFLPA Executive Director DeMaurice Smith said.  “While the NFLPA and the
players of the National Football League are pleased with the ruling, we
remain focused on reaching a fair and equitable collective bargaining
agreement.  We hope that today also marks a renewed effort by the NFL to
bargain in good faith and avoid a lockout.”

So why is the union crowing about a case to which it wasn’t a party, and which had no bearing on labor issues in any way?  In today’s PFT Daily, which has been recorded and is currently being cleaned up (apparently my toupee had slipped), we explain the connection.

The NFL has not yet issued a statement regarding the case, apparently due in part to the fact that many of the key players are en route to Dallas for a Tuesday ownership meeting which just had an unwanted item added to the agenda.

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NFL's American Needle loss could be a win for some teams

We’ll have plenty to say about the American Needle case over the next day or so because:  (1) it’s the slow time; and (2) the subject matter falls directly within the wheelhouse of my mothballed license to practice law, which for now has been placed back in the Cracker Jack box where I first found it.

Here’s our first item of analysis on the subject.

By essentially invalidating the league’s effort to grant a collective license to one supplier of apparel and other stuff bearing NFL trademarks, the teams that have the most desirable trademarks have scored a major victory, indirectly and through no apparent efforts of their own.  Moving forward, teams like the Cowboys will be able to strike their own deals.  And teams like the Lions won’t realize the immediate benefit of the revenue from a single, global transaction with that is shared 32 ways.

Basically, any deal involving the licensing of individual team logos is now fair game.  The Cowboys can — and surely will — make their own arrangements for all sorts of things that the NFL previously sold until the umbrella of NFL Properties.

If, of course, the 32 owners decide to share the revenues from such transactions equally, the net impact to the league will be negligible.  At a time, however, when one of the unspoken areas of disagreement among the franchises comes from the ever-growing disparity in unshared revenue streams, the practical impact of the American Needle case — that each team can and must cut its own deals entailing the licensing of its logos for clothes, hats, lunch boxes, etc. — is that the issue of revenue sharing will take on even more importance going forward.

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L.T.'s defense to rape charges could still result in sex offender listing

Faced with statutory rape charges to which few defenses apply, Hall of Fame linebacker Lawrence Taylor plans to rely on the failed domain master defense.

But even if a jury accepts the claim that he didn’t have sex with the prostitute to whom he paid $300 for sex, Taylor is still facing a significant legal stigma.

According to TMZ, Taylor will potentially become a registered sex offender if convicted of patronizing an underage prostitute.

Again, knowledge — or lack thereof — of the girl’s true age doesn’t matter, even if L.T. was lied to.  Lawyer Arthur Aidala nevertheless hopes that prosecutors will go easy on Taylor in light of the circumstances.

In our view, prosecutors will be less likely to cut Taylor a break on anything, given his apparent insistence on claiming that he actually didn’t get what he paid for.

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Latest StarCaps decision likely means Williamses will be available all year

We’ve obtained and digested the 11-page written opinion from Judge Gary Larson regarding his decision to extend a temporary injunction that prevents the implementation of four-game suspensions against Vikings defensive tackles Pat and Kevin Williams until their appeal is resolved. 

Our first impression?  It’s highly unlikely that the Williamses will be suspended at any point in the 2010 season.

Even if the NFL expedites the process before the Minnesota Court of Appeals, nothing in Judge Larson’s order suggests that it applies only to the first of two levels available to the Williamses.  After the Minnesota Court of Appeals comes the Minnesota Supreme Court, and it would be virtually unprecedented if both levels of appeal were resolved before the end of the calendar year.

Especially since none of the elected officials who’ll be handling the case benefit in any way from moving quickly to ensure that the suspensions can be enforced against two key players of the home team.

If anything, Judge Larson’s order seems to welcome scrutiny from a higher court.  He finds that the Williamses enjoy a “likelihood” of prevailing on appeal, explaining that the issues presented in the litigation “were a matter of first impression,” and that Larson had no precedent available to guide him.  Thus, even though Larson believes that there was no harm arising from the failure of the NFL to provide notice of the positive result within three days, in violation of Minnesota law, Larson seems to acknowledge that an appeals court may find that he was wr-wr-wr-wr-judicially misinformed.

“Public policy . . . dictates that [the NFL] should not be permitted to benefit from its own misconduct,” Larson wrote.  “Here, [the NFL] knew Star Caps contained Bumetanide, that players were ingesting Bumetanide, that Bumetanide was dangerous, and withheld information about Star Caps, knowing that players would suffer as a result.  [The NFL] created a trap that it knew would result in violations of the program.”

In response to the argument by the league that it would be harmed by an injunction, Judge Larson disagreed. 

“[The NFL] could have easily avoided this very situation by informing players or teams about what it already knew — that Star Caps contained a hidden, dangerous substance,” Larson explained.  “[The NFL] knew that many players were already inadvertently ingesting Bumetanide, and continued to place the health, safety, and welfare of its players in jeopardy, so that Adolpho Birch could play a game of gotcha.  The league clearly allowed a half dozen other players to use Bumetanide without punishment.”

Based on Larson’s statements, there’s a chance that the suspensions ultimately will be scuttled.  Until the appeals are resolved, Pat and Kevin Williams — and Saints defensive end Will Smith — will be permitted to keep playing.

It’s very good news for Vikings and Saints fans.  And also for NBC, which will have all three players available when the season kicks off on September 9 with a nationally-televised game between Minnesota and New Orleans.

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Pat and Kevin Williams win another injunction

P.Williams.jpgThough it remains to be seen whether Vikings defensive tackles Pat and Kevin Williams ultimately will avoid a four-game suspension for violating the league’s steroids policy, the NFL won’t be permitted to impose the suspension until the case is addressed by the Minnesota Court of Appeals.

Brian Murphy of the St. Paul Pioneer Press reports that Judge Gary Larson ruled Friday morning that the Williamses satisfied the standard for proving that the suspensions should be blocked while the players exercise their appellate rights.

It’s a no-brainer, really.  Once the suspensions are imposed, the litigation becomes moot.  Given the Brian Cushing situation, which involved an eight-month lag between sample collection and suspension, the NFL will have an even harder time convincing anyone that the suspensions must be imposed immediately in order to preserve the integrity of the program.

The timetable for resolving the appeal remains unclear.  The NFL could request an expedited review.  Eventually, however, the Williamses would be making the same request regarding a potential appeal to the Minnesota Supreme Court, in the event that their next move fails.

Directly benefiting from the development are the Saints and defensive end Will Smith.  The league received full clearance to suspend Smith and former Saints defensive end Charles Grant last year, but the NFL opted not to execute the suspension, apparently due to concerns that it would create a perception of inconsistent treatment.

Earlier this month, Judge Larson concluded that the NFL violated Minnesota law via the drug testing of Kevin and Pat Williams.  Larson, however, ruled that the suspensions could be implemented, finding that the players had demonstrated no legal injury.

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Another Redskins player could be caught up in Galea case

The developments have been coming quickly in the case of Dr. Anthony Galea, who reportedly had Redskins receiver Santana Moss on his list of hGH-receiving patients.

According to Chris Russell of 106.7 The Fan in D.C., another Redskins player could be caught up in the case.

Per Russell, the legal documents refer to an “Athlete T” who received treatment from Galea in the Washington area on September 3, 2009.

That night, the Redskins were playing their final preseason game against the Jaguars.  In Jacksonville.

Thus, any Redskins player who was in Jacksonville for the game wouldn’t have been receiving treatment from Dr. Galea in D.C.  But any Redskins player who didn’t make the trip would be a potential recipient of Dr. Galea’s services — and possibly a recipient of hGH.

That said, it’s not yet known that the Washington-area patient was a member of the Redskins.

Still, why do we have a feeling that this thing is going to get bigger and uglier before it ever begins to fade away? 

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NFL issues fraud alert

A league source has passed along to us a memo currently being circulated by the NFL and the NFL Players Association regarding two specific persons and businesses who “may be under investigation by law enforcement authorities for questionable business practices” and who “may be targeting current and/or retired NFL Players as potential investors.”

The persons are David Coriaty and Anthony DeResi, and the businesses are Hawk Biometrics, Inc. and Hawk Systems.

The memo urges persons who have a pre-existing business relationship with the persons or businesses to have an independent audit conducted immediately.

If any current or former players need contact information for NFL Security, drop us a line.

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Report: Santana Moss was a patient of Dr. Galea

NFL_moss.jpgOn Wednesday, reports emerged that Dr. Anthony Galea was on his way to Washington to treat a member of the Redskins when Galea was arrested by U.S. authorities.  One of Galea’s assistants reportedly had a type of hGH in his possession.

Now, the Buffalo News reports that Redskins receiver Santana Moss was a patient of Dr. Galea.  The report doesn’t state whether Moss is the Redskins player whom Galea would be treating on the trip that was interrupted by the placement of handcuffs onto Galea’s wrists.

Meanwhile, the U.S. attorney responsible for the prosecution of Dr. Galea said Wednesday that none of his patients will face charges.  “At this juncture, any of the persons who are alleged to have used these
substances are considered witnesses, and not targets, of this
investigation,” William J. Hochul told the Buffalo News.  Hochul declined to comment on whether information regarding patients would be shared with the NFL and other professional sports leagues.

Whether Hochul shares information may not matter.  Absent a plea arrangement, there will be a trial, which will entail witnesses being required to testify.  At that point, it will be fairly difficult to keep their identities secret.

And while Dr. Galea’s lawyer denies that his client did anything wrong (go figure), attorney Mark Mahoney seems to concede that Dr. Galea used hGH on injured athletes.

“Officials of the NFL and other sports organizations can sleep soundly
tonight, because there is nothing he did with these athletes to help
them with performance enhancement,” Mahoney told the Buffalo News.  “[Galea]
strictly provided treatment for injuries.  If any athlete got [human
growth hormone], it was injected directly into injured tissue, in very
small amounts, for purposes of healing.”

But, as we’ve said in the past, using certain chemical compounds to speed healing necessarily constitutes performance enhancement.  If the player can’t perform and a shot of hGH helps him perform, his performance has been (wait for it) enhanced.

Meawhile, the Redskins and agent Drew Rosenhaus are keeping mum about the alleged connection between Santana Moss and Dr. Galea.  New Redskins V.P. of communications Tony Wyllie, who left Houston just before hCG hit the fan, declined to comment on the basis that this is an “off-the-field incident.” 

Sorry, Tony, but that doesn’t cut it.  Though we’ve yet to see any player inject hGH or any other banned substance while “on the field,” the fact that the substances relate directly to the ability to play — and also jeopardize the player’s availability if he’s caught and suspended — makes this a matter that falls squarely within the topics a team should be expected to address.  Though the Redskins may simply decide to say nothing in deference to the NFL’s jurisdiction over these matters, that would be a far more plausible answer than brushing it all off as an “off-the-field incident.”

Either way, the Galea case could — and should — expose plenty of hGH users in pro sports.  Given that it’s a banned substance and that the NFL doesn’t test for it, this could be the only way to catch anyone who is cheating the system.

Ultimately, it could be the wake-up call that prompts the NFL and the NFLPA to come together and devise an appropriate protocol for hGH testing.

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Next StarCaps ruling coming Friday

Two weeks ago, Judge Gary Larson ruled that, although the NFL violated Minnesota law in connection with the steroids tests imposed against Vikings defensive tackles Kevin and Pat Williams, the four-game suspensions should not permanently be blocked.  On Friday, the next decision will come in the StarCaps saga.

According to various reports, Larson will unveil at 10:00 a.m. C.T. on Friday his decision as to whether the temporary injunctions will be extended as the players appeal the decision to permit the suspensions to be imposed.

Meanwhile, NFL spokesman Greg Aiello has suggested that the Williamses won’t be permitted to serve their suspensions consecutively.  There is no precedent for it,” Aiello told Tom Pelissero of  “We are not making any announcements regarding suspensions today.  I am referring to history and how the program works.”

We think there is precedent for making case-by-case deviations from the policy.  Indeed, the league has refrained from suspending Saints defensive end Will Smith and former Saints defensive end Charles Grant pending the outcome of the StarCaps case, even though the league has had full clearance for months to implement the suspensions.

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Dr. Galea was arrested while en route to treat a Redskin

The NFL has stated in the wake of the filing of charges against Dr. Anthony Galea that the case highlights the need for testing of NFL players for hGH, the hormone that Galea allegedly was providing to pro football players.

According to Jason Reid of the Washington Post, Galea was on his way to Washington to treat an athlete when Galea was arrested by authorities in September 2009.  Per the New York Times, Galea was scheduled to meet with a member of the Redskins.

The criminal complaint indicates that the unnamed player was receiving a “medical procedure” from Galea, which included IV drips, injections to his knees, and B-12 shots to his arm.  The player told authorities that “he never knowingly received” hGH.

At the time of the arrest, one of Galea’s assistants had a type of hGH in his possession.

With no testing for hGH, NFL players will be suspended only if they admit to purchasing or possessing it, or if their names come out in situations like this, with a provider of hGH finding himself caught in the gears of the justice system.

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Steinberg continues belated damage control for Cushing

More than a week after news emerged that Texans linebacker Brian Cushing will be suspended four games for violating the league’s policy regarding anabolic steroids and related substances, Cushing’s lawyer has launched a belated effort to prop up his client’s tattered image.

In so doing, Harvey Steinberg is keeping alive a story that, for Cushing’s sake, needs to finally die.

Steinberg, who inexplicably was silent until a day after Cushing gave the most damning steroids-related public remarks since Mark McGwire refused to talk about the past, is now talking a blue streak in the apparent hopes of reversing the perception that Cushing is a cheater and a liar — or at a minimum in the hopes of giving the shrinking corps of Cushing’s supporters some ammunition when arguing the player’s case at the nearest water cooler.

Steinberg’s latest remarks come via John McClain of the Houston Chronicle.  For starters, Steinberg discloses that Cushing was tested not once but twice before the league concluded that he had tested positive for hCG.  That fact, standing alone, isn’t surprising.  Under the steroids policy, 10 players per team per week are tested during the preseason and the regular season.  Once the roster is trimmed to 53, the chances of being tested in any given week are one in 5.3.

Steinberg says the first test resulted in an “A” sample that was “barely over the discernible legal limit” for hCG.  The “B” bottle — containing the other portion of the urine sample — was negative.  (In this regard, Steinberg claims that the “B” bottle is tested by a different lab.  He’s incorrect.  Under the policy, the “A” bottle and the “B” bottle are tested at the same lab, but by different technicians.)

Cushing then was tested again “several weeks later.”  (It’s unclear whether Steinberg means “several weeks after collection” or “several weeks after the results came back.”  This is a critical distinction; if Cushing knew in advance of the second sample that there was an issue with hCG, he would have been able to take steps to get it out of his system, or as the case may be he could have purchased a pre-owned Whizzinator.)  The second time around, the “A” bottle was positive, and the “B” bottle was positive.

“When we inquired about the level [of the new ‘A’ bottle], we were told
it was about the same as the original ‘A’ bottle, the first test,”
Steinberg said. “We were operating under the premise that we may well
get a negative ‘B’ bottle, which would render this test negative as

OK, let’s pause for a second.  It’s unreasonable to assume that the second “B” sample would be negative simply because the first “B” sample was negative.  The analysis of the “A” sample and “B” sample are the same.  Two tests are used as a protection for the player.  In this case, three out of four tests on two separate samples given by Cushing were positive for hCG.  But since the “B” sample on the first test was negative, Cushing ultimately was slapped with only one “positive” test.

Steinberg, a skilled litigator who knows a thing or two about gently obscuring certain aspects of reality when talking to a jury, also seems to suggest that the second test was an effort to “get” Cushing.  “We tried to discern why he tested positive and why were there two
separate tests on two separate occasions for this particular banned
substance,” Steinberg said.

Here’s why he was tested on two separate occasions:  because the steroids policy contemplates that 10 names randomly will be drawn each week during the preseason and the regular season for random testing.  But, hey, why not ignore, you know, reality when trying to fashion a juicy conspiracy theory?  (Moreover, there’s a chance that the second sample was collected before the league knew the results of the “A” sample; that would further undermine the idea that the NFL was “out to get” him.  Unfortunately, the confidentiality of the process prevents the league from setting the record straight in this regard.)

Steinberg also says that Cushing had a “pre-existing medical condition that was consistent with the natural production of hCG in males.”  But Steinberg points not to the notion that Cushing spent the entire season worried about cancer; instead, Steinberg claims that Cushing has an enlarged pituitary gland.

OK, but why then has Cushing not tested positive for hCG at any point after the test that resulted in his suspension?  This fact continues to be the one most important fact that Cushing’s camp continues to ignore.  If he has a condition that is generating unusual amounts of natural hCG, Cushing should be continuing to test positive, right? 

Apparently, he isn’t.

And the occam’s razor conclusion for this is that he’s no longer testing positive for hCG because he’s no longer ingesting hCG.

Then again, it’s not completely clear that Cushing has not tested positive.  We’re assuming that he hasn’t because, surely, evidence of the ongoing existence of hCG in his system (either as determined via NFL-implemented testing or private testing) would have helped avoid a suspension.  Besides, someone (Cushing, agent Tom Condon, and/or Steinberg) would be expressly — and loudly — stating that Cushing continues to show abnormal amounts of naturally-produced hCG.

Instead, Steinberg demonstrates his lawyer skills by adroitly dancing around the topic.  He says, “We did research and found out that his was a plausible explanation.  We
consulted an expert who suggested further testing.  We became convinced
that this was a situation that was naturally produced.”  But Steinberg never says that further tests showed high levels of hCG.  If it were true, he’d be saying it.  Heck, he’d be screaming it.

In the end, Steinberg seems to be claiming that Cushing experienced a short-term biological glitch — that his body naturally produced enough hCG to trigger a suspension and that the condition apparently has resolved itself, just as naturally.  But Steinberg has avoided directly making this contention, possibly because he knows it’s even less plausible than Cushing’s proclamation that he spent the balance of the 2009 season fearing death.

Making Steinberg’s delayed explanation even less credible is the fact that we heard nothing about this supposedly valid explanation for an entire week after Cushing’s suspension was announced.  Think about that for a second — Steinberg never bothered to help his client come up with a plan for seizing the upper hand in the P.R. battle by putting all of the cards on the table before the media or the fans were in a position to assume based on silence, inconsistent leaks (such as Cushing’s private claim that he tested positive due to something a doctor had given him), and Cushing’s train wreck of a press conference that the long-rumored juicer finally has been caught.  Indeed, Cushing’s camp knew for months that the day possibly was coming when Cushing would be suspended, and they all were caught flatfooted when it happened.  

So it’s hard not to be skeptical when we’re now getting spin and carefully constructed half-truths from the lawyer who not only lost the appeal, but also lost the P.R. battle that he didn’t even bother to show up for until it was far too late.

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Assistant coaches consider forming union

At a time when the NFL is experiencing first hand the challenges presented by a unionized work force, assistant coaches are considering forming their own bargaining unit.

According to Mike Sando of, the NFL Coaches Association recently informed its team representatives and the league’s head coaches of the situation.

But the NFLCA seems to be only in the early stages of exploring the possibility — and presumably of gauging support within the ranks of the league’s assistant coaches.  Ultimately, a vote would be required, and any assistant coach who aspires to be a head coach (i.e., every assistant coach) will think long and hard about voting for a union.

Currently, the pipeline from the ranks of college head coaches to the NFL has largely dried up (with the exception of Pete Carroll), due to the high-profile failures of men like Nick Saban and Steve Spurrier.  If the NFL’s assistant coaches are unionized, college head coaches suddenly could be more attractive.

That said, the owners have been sticking it to the assistant coaches lately, trimming benefits and using them as pawns in the current fight with the NFLPA by inserting clauses into their contracts limiting the pay of coaches if/when there’s a work stoppage.  The coaches didn’t help their cause by filing a brief opposing the NFL’s position in the American Needle case, which some fear could be parlayed by the NFL into an attempt to claim full immunity from an antitrust action that could be filed by the players following decertification of the union.  (Actually, the assistant coaches could sue the NFL for antitrust right now — but the person whose name would appear as the lead plaintiff would soon be pursuing the career path that Buddy Ryan once suggested to Kevin Gilbride.)

At this point, it appears that the coaches are in the huffing and puffing phase.  It remains to be seen whether they try to blow the house down — and whether the owners would even notice.

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Cushing's lawyer sounds off on the league's process

The clumsy P.R. effort on behalf of Texans linebacker Brian Cushing continues.

A day after Cushing stumbled through a prepared statement and unconvincingly answered media questions regarding his four-game suspension for hCG, the man who handled his appeal is complaining about the league’s procedures for dealing with positive drug tests.

Harvey Steinberg, a Denver lawyer who at one point appeared to be on track to represent every member of the Broncos organization, represented Cushing in his effort to avoid a four-game suspension.  Steinberg spoke with Mike Klis of the Denver Post regarding the situation.

The process is flawed,” Steinberg said, a day after his client expressed respect for it.  “You have a situation
where the Commissioner determines the initial punishment and then you
appeal to one of his subordinates.  I have a lot of
respect for the hearing officer.  I really believed he tried to do the
right thing and be fair.  But there is clearly a cloud hanging over the
process.  If nothing else, there is clearly an appearance of

Harvey, take it up with the NFLPA.  The union long ago agreed to this procedure. 

Still, the fact that anyone who tested positive can piss and/or moan about the process suggests that referring appeals to an outside arbitrator would make the system seem to be more effective, since it would seal off one of the easy points that anyone who receives a suspension can raise.

Steinberg also said that he advised Cushing to refuse at Thursday’s press conference to accept responsibility for the presence of hCG in his body.  “Why should he apologize when he did nothing wrong?” Steinberg said.

Steinberg shouldn’t be expected to go Al Pacino on the guy who pays his bills.  But if Steinberg were as good at P.R. as NFL players and coaches seem to think he is with precedents and statutes, Steinberg would have told Cushing to keep his mouth shut.

In hindsight (or with the application of reasonable foresight), silence would have been far better than the strategy (assuming there even was one) that unfolded on Cushing’s behalf over the past week.  The story remained alive far longer than it should have, and as a result Cushing’s career will now forever be undermined. 

Perhaps most importantly, folks suspended for violating the league’s policy regarding anabolic steroids and related substances possibly will be met with the same stigma that has applied in baseball over the past several years.

So while it was a bad week for Cushing, it may end up in retrospect being a great week for the long-term integrity of the game.

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Cushing's tumor excuse gets exposed

One of the most specious aspects of Texans linebacker Brian Cushing’s press conference related to his claim that the positive test for hCG caused him to fear, based on the medical information he received, that he possibly had a tumor.  And he says he spent the balance of the season fearful that he had one or more tumors in his body.

It was the moment at which we became convinced that Cushing is full of something other than hCG or tumors.  People who think they have tumors get tested for (wait for it) tumors.  MRIs detect (wait for it) tumors.  Certain blood tests indicate (do we need to say it again?) tumors.

And if Cushing spent the rest of the season thinking he had tumors, he did a great job of keeping it quiet.  Alex Marvex of points out that linebacker DeMeco Ryans, a character witness of sorts whom the Texans trotted out after the ridiculously limited time to question Cushing ended, “didn’t know anything about tumors.”  Marvez also reports that the team’s position regarding Cushing’s tumor claim was to say “no comment,” which fairly can be interpreted as a concession that “it’s not a tumor.”

We’re told that other friends of Cushing’s knew nothing about a tumor.  So, basically, Cushing was in fear for his life, and he shared nothing about his concerns to some of the folks he knew best.

Moreover, Cushing offered no medical evidence to support the reasonableness of his belief that he feared cancer.  The Associated Press sought out the input of Dr. Gary Wadler, who chairs the committe that the determines the banned substances for the World Anti-Doping Agency.  And Dr. Wadler summed the situation up perfectly.

“If he had a tumor that produced hCG, he wouldn’t be playing football,”
Wadler said.  “He would be under treatment for a malignant

Wadler also pointed out that, if Cushing had a tumor, he would have tested positive for hCG consistently.  Instead, Cushing only tested positive for hCG once.

“Malignant testicular tumors producing hCG are rather lethal,” Dr. Wadler
said.  “It is a fairly aggressive tumor and you’re not playing in the NFL

And that’s the truest statement made today as to Cushing:  “You’re not playing in the NFL with one.”

In our view, there is no tumor, there was no tumor, and there was no fear of a tumor.  What we saw today was the predictable denial of a man who made his bed months if not years ago.

When witness testimony sharply conflicts in a trial, some wonder why people would choose to lie under oath.  The reality is that the decision to lie under oath was made long before the witness ever set foot in the courtroom.

In Cushing’s case, the decision to publicly deny on Thursday ever using banned substances was made the moment he first used one.

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