Judge's ruling to allow Minnesota Vikings' Pat Williams and Kevin Williams to play has wider implications
December 13
St. Paul Pioneer Press
"A federal judge's injunction allowing suspended Vikings Kevin Williams and Pat Williams and three New Orleans Saints to play the rest of the season could profoundly affect how the NFL and other professional sports enforce their drug testing policies, legal experts said Friday.
U.S. District Court Judge Paul Magnuson's ruling Thursday blocked the NFL's four-game suspensions and set a course for trial. His findings also weakened the league's Policy for Steroids and Related Substances and marked a path for players to challenge their sport's punishments in court, according to one sports law scholar.
"Every disciplinary decision of a major professional sports league is up to the unfettered, Solomonic wisdom of U.S. district judges," said professor Stephen Ross, director of Penn State's Institute for Sports Law.
Ross and others scrutinizing Magnuson's 20-page decision were drawn to his initial determination that the NFL violated public policy by failing to inform the players in November 2006 the diuretic they were using contained a known masking agent for steroids for which a positive test could result in suspensions.
The judge wrote it was unfair for Jeff Pash, the league's chief legal officer and arbitrator, to punish the players after withholding specific information that might have helped them avoid testing positive for the banned substance bumetanide.
That narrow interpretation has broader implications for the sports world because it undercuts the bedrock principle of strict liability governing all drug-testing programs: players ultimately are responsible for what they ingest.
Moreover, it dealt a blow to the NFL's image because the public tends to view steroids and drug cases in black and white, said professor Paul Haagen, co-director of Duke University's Department of Sports Law and Policy.
"People think of cheaters and not cheaters, people who take the stuff or who are clean," he said. "What you've got here is this middle ground. Yes, (the players) ran a risk by using this supplement, and, yes, it turned out to be a banned substance. But there is a justice problem.
"At that point you are in danger of losing the public-relations war, which is central to anti-doping."
The U.S. Anti-Doping Agency monitors the country's Olympic athletes. Its authority is unrivaled in the realm of drug testing because it is not governed by a collective bargaining agreement like major pro sports are.
Still, Travis Tygart, chief executive officer of the USADA, is monitoring this case because it could influence public opinion.
"We certainly agree with the NFL that strict liability is essential and is the world's accepted standard and shouldn't be eroded in any league," Tygart said. "We are concerned about having a mixed message here."
Magnuson's decision is subject to appeal, and he ultimately could reverse himself after hearing a full vetting of the case if the NFL and the union hold evidentiary hearings and proceed to trial.
Until then, his words set a precedent for other players to challenge the authority of NFL Commissioner Roger Goodell on similar grounds.
The NFL has not indicated how it would proceed, although Magnuson challenged both sides to settle the case, and he set a Dec. 22 deadline for establishing a pretrial schedule for depositions and hearings.
Haagen said the league would be wise to cut a deal with the Williamses and Saints' Deuce McAllister, Will Smith and Charles Grant and negotiate with the union to clarify its responsibilities under the steroids policy to avoid another potential mess.
"The league could issue some statements saying, 'We're not going to tell you anything about specific supplements, but if in our testing we come across something, we will issue exactly what the test results are and communicate that with the union,' " he said.
Haagen added that if the NFL settles this case, it would eliminate Magnuson's jurisdiction and allow the league to preserve its arbitration rights and autonomy to discipline players without federal intervention.
Settling the case also would avoid having the league's steroids policy administrators grilled by union lawyers and Magnuson about what they knew, when they knew it and why they did not disclose it.
With the players riding a three-game winning streak in Minnesota courtrooms, and Magnuson on record with sharp criticisms of how the league prosecuted these players, the NFL might be more inclined to reverse their suspensions and continue the broader fight, the scholars said.
"What I think the league will do, and should do, is not care so much about the result here and not settle the case and compromise their legal position," Ross said. "But it should pursue all options in hopes they get it reversed on appeal.
"From a PR perspective, the best result is let the players play, complete the season and therefore nobody will challenge how the Vikings or Saints got hosed because they didn't have these players. And then next spring, the 8th Circuit (Court of Appeals) rules that Jeff Pash can rule the way he wants."
Lawyers for the Williamses and the Saints players said it was too early to speculate about possible settlement terms. But do not expect the players to agree to any outcome that includes a suspension considering the momentum they already have built in court.
Meanwhile, the NFL Players Association has said it will negotiate for an independent arbitrator to judge steroids and related substances violations in the new collective bargaining agreement. "
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