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Saturday, January 25, 2014
NFL may have dodged Marijuana Legal Issue in NFL Europe: Mixing employment of "NFL Players" with "Non-NFL Players"

This week I had a feature article for on how the gradual legalization of marijuana will impact the NFL and its collective bargaining with the NFLPA over health policies and workplace conditions.. I also address new medical research which suggests that marijuana may help to treat concussions in more effective ways than medicines.

In response to the article I've received a number of reader emails.  One is from someone who was intricately involved in the management of NFL Europe (at times called "NFL Europa" and the "World League of American Football").  NFL Europe was an NFL-backed football league in Europe that existed in different forms from 1991 to 2007.  NFL Europe had several goals, with the two most important being to help young NFL players develop with real game time--in other words, a minor league for players after college--and to boost the NFL's popularity in the European market.  The NFL ultimately pulled the plug on NFL Europe, as I wrote about in the Harvard Journal of Sports and Entertainment Law:
The NFL has encountered significant obstacles in generating sustained international interest in “American football.” Most notably, from 1991 to 2007, the NFL owned and operated NFL Europe (also called World League of American Football, World League, and NFL Europa). NFL Europe featured between six and 10 teams each season, with teams stationed in such cities as Barcelona, Amsterdam, and Berlin. Although NFL Europe attracted viable fan bases in certain locations,it reportedly lost $30 million a year. A leading reason for its failure was the refusal of most NFL teams-- and their owners--to follow NFL directives that teams use NFL Europe for player development. Acting instead in self-interested and entirely rational ways--most NFL teams declined to send their promising and young, but not yet ready for the NFL, players to NFL Europe. Teams surmised that those players would develop faster if they worked with NFL coaches and practiced against seasoned NFL players. In lieu of sending those promising players to NFL Europe, teams usually sent marginal players, thereby providing European fans with inferior American football.
Interestingly, marijuana was a legal issue for NFL Europe for four main reasons:
  1. Marijuana was legal in Amsterdam in licensed coffee shops and the Amerstdam Admirals were one NFL Europe franchise.

  2. Some NFL Europe players were employed by NFL teams.  These players tended to be younger guys, practice-squad types who teams wanted to develop. They were NFLPA members and were thus obligated to follow the collectively-bargained NFL Drug and Substance Abuse Policy (which not only prohibits marijuana, but assigns the same penalties for its use as using cocaine, heroin and other serious drugs).   

  3. Other NFL Europe players, however, were not employed by NFL teams.  These "non-NFL players" were generally older and were playing pro football for the love of the game, not because they had a likely NFL future.  They were not obligated to follow the collectively-bargained NFL drug policy.   These players were instead employed directly by NFL Europe teams.  They were not members of the NFLPA or of any alternate union or players' association..

  4. NFL Europe tested all players--regardless of whether they were "NFL players" or "non-NFL players"--for marijuana. 
The NFL Europe person who emailed me stressed that this mixed arrangement of employment status was a real worry in terms of drug policy and other employment issues:
We had a team in Amsterdam and the team was made up of active NFL players (2nd/3rd string guys) as well as guys not under NFL contracts (just like every team in the league). Of course, the NFL guys were subject to the NFL CBA at the time whereas the non-NFL guys weren't. NFL Europe players were not unionized. All players in the league were drug tested. As you surely know, marijuana usage is legal in Amsterdam under certain conditions. And as you would expect some of the more adventurous players wanted to know what it was like "in a hash bar". So we had our issues, as you can imagine.
It doesn't appear there were any legal challenges brought by NFL Europe players over the league's ban on marijuana, but the NFL may have dodged a bullet.  While NFL Europe players employed by NFL teams likely lacked a viable legal claim because they were NFLPA members and were thereby subject to collectively-bargained drug policies, those directly employed by NFL Europe teams ("non-NFL players") had a different legal status and may have had legal recourse under European Union law on workplace drug testing to challenge marijuana testing. If the NFL or another pro league places a de facto minor league in Europe or elsewhere, mixed employment will likely demand more attention.

Also, as the NFL considers returning to Europe with an NFL team, these types of workplace issues could prove problematic (and for good pieces on that topic, see this article by Kristi Dosh and this article by Marc Edelman and Brian Doyle).  This is all further evidence that sports law, like all areas of law, is becoming increasingly international.


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