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Wednesday, November 04, 2009
More on Star Caps

As a follow up to Nathaniel’s post on the Star Caps hearing, the written testimony of all of the witnesses and the video of the hearing can be found here (note that the testimony from the witnesses does not begin until about the 1:26:48 mark).

Here is the full witness list: Roger Goodell, Commissioner, National Football League; DeMaurice Smith, Executive Director, National Football League Players Association; Rob Manfred, Executive Vice President, Labor and Human Resources, Office of the Commissioner of Baseball, Major League Baseball; Michael S. Weiner, General Counsel, Major League Baseball Players Association; Travis Tygart, Chief Executive Officer, United States Anti-Doping Agency; Jeffrey Standen, Professor of Law, Willamette University College of Law; Gabriel Feldman, Associate Professor of Law and Director, Sports Law Program, Tulane University Law School.

Also, although I may be a bit biased, the Minnesota Post did a good job of recapping the hearing.

Here’s an excerpt:
During additional testimony before the committee, Gabriel A. Feldman, associate professor of law at Tulane University and the director for the Tulane sports law program, laid out a more detailed argument against congressional action.

“It is important to emphasize that the Eighth Circuit did not hold that the NFL [Performance Enhancing Drug] Policy violates Minnesota law,” he said in prepared testimony. “Instead, the court only held that the Williamses may challenge their suspensions in Minnesota state court under state law.”

Thus, Feldman concluded that it was only a “potential” problem. And even if the court did ultimately rule in favor of the Williamses, it was still a “narrow” problem because only three states, including Minnesota, currently have drug-testing laws that might conflict with the NFL policy.

“This narrow potential problem warrants a very narrow solution, and many steps should be taken before Congress intervenes,” said Feldman. “The most appropriate — and simple — solution is for the NFL to litigate the case in state court and convince the court that the Minnesota Laws were not intended to apply to the NFL [Performance Enhancing Drug] Policy and that suspensions do not violate the Minnesota Laws. If that suit is unsuccessful, the NFL should seek an exemption from the state Legislature that makes it clear that the Minnesota Laws do not apply … If that fails, the NFL and the players association should try to bargain around the Minnesota Laws. If that fails, then, only as a last resort, Congress should consider passing a narrow federal law that will protect” the NFL policy.

Goodell retorted that if a national law was not enacted, then other states could ultimately change their laws to conflict with NFL policy. Feldman, however, stated that there was little chance of that happening.

In the end, subcommittee chairman Bobby Rush of Illinois seemed to side with Feldman.

Rush said that he would be keeping a “wary eye” on the Williamses’ case, but warned that “you can’t tell what members of Congress might ultimately do once you open up Pandora’s Box.”

“I would just ask that you all try to work this thing out,” Rush told the gathered panel.

Finally, Mark Maske of the Washington Post wrote a piece discussing the study of state employee drug testing laws that I conducted for the hearing. The study concluded that only 3 states (Minnesota, Maryland, and North Carolina) currently have workplace drug testing laws that might conflict with the NFL’s performance enhancing drug testing policy. Many thanks to Andrew Miragliotta, a sports law student here at Tulane Law School, for helping with the study.


It seems as if the current feeling of the nfl is that they are the most important entity. It almost seems like when anyone tells them what to do, they now want to change the rules, so no one can tell them anything. We all have a boss, and I think congress needs to make sure they don't make the nfl, and all powerful autocracy.

justin wright
The Sports Law Blogger

Blogger sportslaw -- 11/04/2009 3:35 PM  

One curious aspect of the Eighth Circuit's rejecting the NFL's second preemption argument on the Williamses' DATWA claim, the Court notes that there is no need to even reference the CBA in determining who their employer is because their contracts "likely dispositive in determining who their employer is, are actually separate documents from the CBA..." The Williames' contracts, of course, are with the Minnesota Vikings, not the NFL, and, in a footnote, the Court cites numerous decisions along those same lines (i.e. that a player's contract is with an NFL team, not the NFL). But the Court cuts off its analysis by stating that "[w]e do not address the impact of this on the Players' ability to prevail on their DATWA clam against the NFL." My question is: why wasn't this question addressed on appeal? Although one could argue that the question of who the employer is is an issue of fact, there does not seem to be much ambiguity about this point, given the Williames' contracts with the Vikings. I just find this section of the Court's opinion very interesting---in refuting part of the NFL's preemption argument, the Court actually kind of bolstered a separate argument that the NFL could make.

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