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Thursday, July 09, 2009
More on the Pat and Kevin Williams Suspensions and the Star Caps Saga

As you might recall, five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games last year after testing positive for bumetanide, a diuretic that can be used to mask the presence of steroids. The players claimed that they inadvertently ingested the bumetanide when they took StarCaps, an over-the-counter weight-loss supplement. Bumetanide is not listed as an ingredient in StarCaps, but the players proved that bumetanide was present in the StarCaps they consumed.

The players lost their internal appeal to the NFL, and after a series of legal maneuverings in state court, the players challenged the suspension in federal court in Minnesota. Judge Paul Magnuson granted a preliminary injunction blocking the suspensions until a full trial could be held. That trial was scheduled for June 15th in St. Paul, Minnesota. In late May, however, Judge Magnuson ruled on the parties’ summary judgment motions. Judge Magnuson rejected most of the players’ arguments on preemption grounds, but remanded the players’ state law claims so that a Minnesota state court determine whether the NFL’s drug policy violates Minnesota state law (the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA)).

Today, that Minnesota state court—Hennepin County District Judge Gary Larson— issued a temporary restraining order to prevent the NFL from suspending the WIlliamses or from subjecting them to “reasonable cause” drug testing until the completion of a trial on the merits. As I discussed here, the NFL does have a plausible argument that their policy complies with Minnesota state law. And, Judge Larson was less than enthusiastic about the chances of the Williamses winning on the merits, noting that they “face some obstacles in overcoming issues of fact to prevail on their statutory claims,” and conceding only that the Williamses had made “at least some showing as to the likelihood of prevailing on the merits.” Nevertheless, Judge Larson granted the restraining order because of the irreparable harm the Williamses would suffer if they were not permitted to play. Judge Larson noted that “[c]ourts have found that the loss of NFL playing time is sufficient to constitute irreparable harm,” and that in this case, “because the NFL playing season is relatively short, [the Williamses] would suffer a significant loss of playing time without the TRO."

The NFL, of course, hopes that Judge Larson never gets to reach the merits of the case. Instead, the NFL’s primary (and strongest) argument is that the state law claims are preempted and should not even be considered by the state court. In short, the NFL is arguing that federal labor law permits the NFL and the NFL Players Association to maintain a national drug policy that applies equally to all 32 NFL teams and their employees throughout the United States. The NFL policy is designed to protect its employees and sets up procedures to ensure safe and fair drug testing. Thus, the NFL is arguing that any suits brought under state laws designed to provide similar protection for employees—such as DATWA and CPA— should be preempted.

The NFL therefore filed an appeal with the Eighth Circuit seeking to overturn Judge Magnuson’s decision to remand the state claims back to Judge Larson. The NFL has also asked Judge Larson to stay his TRO (and the entire state court proceeding) until the Eighth Circuit has ruled on the NFL’s appeal. In other words, the NFL is asking Judge Larson to wait to rule on this case until the Eighth Circuit has decided whether or not Judge Larson can even consider the case. In today’s order, Judge Larson agreed to hold a hearing to determine the appropriateness of a stay on July 22, 2009.

More to come as this case unfolds…


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