Let Them Play! (at least on this Sunday)

U.S. District Court judge Paul Magnuson granted a temporary restraining order earlier today which will permit Will Smith and Deuce McCallister of the New Orleans Saints to play in their game this Sunday in New Orleans (the TRO also applies to Charles Grant, but he is on the injured reserve list and thus unable to play). Judge Magnuson also upheld the temporary restraining order granted Wednesday in Hennepin County District Court to Pat Williams and Kevin Williams of the Minnesota Vikings, which will allow them to beat, er, play against, the Detroit Lions this Sunday.

The players had been suspended for four games pursuant to the NFL Policy on Anabolic Steroids and Related Substances (the “Policy”) after testing positive in training camp this summer for the banned diuretic bumetanide. Bumetanide and other diuretics are on the banned substance list because they can be used as masking agents to prevent the detection of steroid use. The bumetanide consumed by the players was apparently contained in the dietary supplement StarCaps, but was not listed as an ingredient on the bottle.

Pursuant to the procedures set forth in the Policy, the players filed an internal appeal, which was heard by Jeffrey Pash, the chief legal officer of the NFL. Pash upheld the suspensions. Despite the fact that the Policy states that the result of the internal appeal “will constitute a full, final, and complete disposition [and]…will be binding on all parties,” the players then filed an action seeking to vacate the suspensions. How can the players challenge the decision in court if the Policy states that the result of the appeal is final and binding? Well, the NFL argues that the players can’t, but the players have contended that the NFL’s internal arbitration proceedings were “fundamentally unfair and the result of evident partiality” because the arbitrator, Jeffrey Pash, “was reviewing and immunizing misconduct by his own office, in which his own subordinate was involved.”

This is obviously not the first time an athlete has challenged a positive drug test result in court. But, in many of the recent cases, the athlete has challenged the result on the basis of a faulty test or a breakdown in the integrity of the drug testing procedures. In this case, however, the players are making a very different argument. The players are not challenging the test itself. In fact, the players appear to have conceded that the drug test was accurate.

Instead, the players are arguing—with an interesting twist—that it is not their fault that bumetanide was in their system. In typical cases, this argument would be a non-starter because the Policy employs a strict liability standard. According to Section 3.E.: “Players are responsible for what is in their bodies, and a positive result will not be excused because a player was unaware that he was taking a [banned] substance.” This strict liability standard, like the standard contained in the World Anti-Doping Agency Code, removes intent as a requirement for a finding of a violation and makes players responsible for any substance that is present in their body, regardless of how it got there (with some extremely limited exceptions).

Strict liability standards are often criticized for being unfair because they can result in the punishment of “innocent” individuals (ie, one who did not have the intent to commit the violation), but, in the typical tainted supplement case, I don’t think there’s much of a case to be made that imposition of a strict liability standard is unfair. Given the apparent frequency of unlabeled banned substances appearing in supplements (and particularly given the language in Appendix F discussed below), NFL athletes are on notice that taking a supplement is a risky behavior which may lead to punishment. This notice, in essence, serves as a substitute for intent.

This case, however, is not the typical tainted supplements case. In this case, the players are not just arguing that they did not intend to take the banned substance. Instead, they are arguing that the NFL’s Independent Administrator on Anabolic Steroids and Related Substances (Dr. John Lombardo) and NFL lawyers knew that StarCaps contained bumetanide, but failed to disclose this fact to the NFL players or the NFL Players Association. The players claim that this constituted a breach of fiduciary duty, endangered the health of the players, and “fatally tainted the suspensions so that enforcing the [suspensions] would unfairly punish the players and condone the improper behavior and breaches of duty by the NFL, in violation of public policy and the essence of the CBA.”

As I mentioned in a NY Times article today, I believe that these additional facts alleged by the players make for a compelling and sympathetic case, but the players have a very difficult fight ahead of them. Even assuming, as the players appear to have argued, that the Independent Administrator had an affirmative duty to warn the players of tainted supplements, the NFL has a strong argument that they satisfied the duty in Appendix F to the Policy, which states:

Over the past several years, we have made a special effort to educate and warn players about the risks involved in the use of “nutritional supplements.” Despite these efforts, several players have been suspended even though their positive test results may have been due to use of a supplement. Subject to your right of appeal, if you test positive or otherwise violate the Policy, you will be suspended. You and you alone are responsible for what goes into your body. Claiming that you used only legally available nutritional supplements will not help you in an appeal.

As the Policy clearly warns, supplements are not regulated or monitored by the government. This means that, even if they are bought over-the-counter from a known establishment, there is currently no way to be sure that they: (a) contain the ingredient listed on the packaging; (b) have not been tainted with prohibited substances; or (c) have the properties or effects claimed by the manufacturer or salesperson.

Therefore, if you take these products, you do so AT YOUR OWN RISK!

(each version of emphasis in original)

In addition, Section 3.E. of the Policy states: “If you have questions or concerns about a particular dietary supplement or other product, you should contact Dr. John Lombardo…Having your Club’s medical or training staff approve a supplement will not excuse a positive test result.” (emphasis in original).

Granted, this falls short of warning the players that the NFL has specific knowledge that a particular supplement is tainted, but the NFL can argue that they put the players on notice that every supplement is tainted. That is, the players should assume that every supplement contains a banned substance, unless told otherwise by the Independent Administrator. Of course, as a broader argument, the NFL can argue that it does not matter that the Independent Administrator did or did not know of the presence of a banned substance in StarCaps, because the Policy calls for a suspension “if you test positive…. You and you alone are responsible for what goes into your body.”

This case presents a number of different issues and provides an interesting test for the scope of strict liability standard. I hope to write more these issues as the case unfolds. For now, I will enjoy one more Sunday (at least) of watching Deuuuuuuuuuuuce in the Superdome...

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