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Tuesday, May 04, 2010
The Next Step in the StarCaps Saga: Federal Legislation?

Over at, Peter King is reporting that California Representative Henry Waxman is “close to introducing legislation in the U.S. House that would make drug policies negotiated as part of a national collective bargaining agreement – such as the one the NFL negotiates with players – override state drug-testing laws.” As King writes, “If Waxman's legislation –which will cover all sports, not just the NFL—is successful, it won't be retroactive. But it would prevent every player in a major sport from appealing to the laws of the state the team plays in if the player tests positive for a banned substance in his league.”

This proposed legislation, of course, stems from the Star Caps saga, when 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 after testing positive for bumetanide. After a series of legal maneuverings in state court, the players challenged their suspensions in federal court arguing, among other things, that the NFL breached its fiduciary duties under the NFL Policy by not warning the players that StarCaps contained bumetanide. The Williamses also argued that their suspensions violated their rights under Minnesota’s statutory workplace drug laws—the Drug and Alcohol Testing in the Workplace Act and the Consumable Products Act. The NFL claimed that these state law claims were preempted by the terms of the collectively bargained NFL Policy on Anabolic Steroids and Related Substances. The United States Court of Appeals for the Eighth Circuit disagreed with the NFL, concluding that the NFL’s drug policy does not trump state law and that the Williamses can challenge their suspensions under Minnesota state law in Minnesota state court. The suspensions of the Williamses (and the Saints players) were thus stayed pending resolution of the case in Minnesota state court— that trial took place earlier this year, and we are still waiting for a decision.

As you might recall, a Congressional subcommittee held a hearing to consider this type of legislation earlier this year. The NFL viewed the Eighth Circuit’s decision as a major threat to its ability to maintain and enforce a strict and uniform performance enhancing drug policy, and appealed to Congress for a federal exemption that would allow the collectively bargained drug policies of sports leagues to trump state laws. The heart of the NFL's argument is that they have a unique need for a uniform drug testing policy, because disparate treatment of players on different teams can have a direct impact on the competitive balance of the league. Simply put—a team is put at a competitive disadvantage if its players are treated more harshly than players on a different team, merely because the players play for teams in different states.

Although the members of the Congressional subcommittee did not appear to be inclined to take any action at the conclusion of the hearing, Representative Waxman was clearly concerned. Here’s what he said at the hearing: “The federal district court in Minnesota has ruled — and been upheld by the Court of Appeals — that the state laws governing workplace drug testing may trump the collectively bargained agreements of the NFL, Major League Baseball, and other sports leagues….This is a serious problem because some state laws undermine the stringent sanctions established by the sports leagues and their players associations.” Waxman concluded that the Eighth Circuit’s ruling “could wreak havoc with policies to curb performance-enhancing drug use in professional sports.”

I have previously expressed the belief that federal legislation allowing the drug policies contained in league collective bargaining agreements to trump state law is premature at this point, for three primary reasons. First, the NFL can still win this case in Minnesota state court. Although Judge Larson determined that DATWA was technically violated because the Williamses were not informed of their positive test results within three days of the test (and that DATWA’s confidentiality provision may have been violated), DATWA only governs “employers” of Minnesota employees, so the NFL can win the case if it persuaded Judge Larson that the Vikings, and not the league, are the employer of the Williamses. Second, even if the NFL loses the trial, it can seek an exemption from the Minnesota state legislature that makes it clear that the Minnesota state drug laws do not apply to the collectively bargained drug policies of professional sports leagues (in other words, they can get from the Minnesota legislature what they are they seeking from Congress). Such an exemption would not be unprecedented—Louisiana’s workplace drug laws have precisely this type of carve-out for sports leagues. Third, at present, only three states (Minnesota, Maryland, and North Carolina) have drug testing laws that might conflict with the NFL policy (and many of these conflicts appear to be minor). Rather than ask Congress to pass a broad federal exemption, the more logical solution—or at least the more logical next step—would be to seek exemptions from the few state laws that may pose a problem for the league. Of course, the NFL might still win the case before the Minnesota state court, so no further action may be necessary at all…

I will have more on this once we get a look at Waxman’s proposed legislation.


Do you think this proposed legislation is partially due to the forthcoming vote in California (Wasman's state) on the legalization of marijuana, currently a banned substance under the collective bargaining agreement?

Blogger Jeff -- 5/05/2010 12:32 PM  

Somehow its like that...

Anonymous sports galore -- 5/05/2010 3:44 PM  

Is there any reaction by Minnesota, Maryland, or North Carolina to do as you suggested, and write in a specific statue to override staee testing laws for pro sports teams?

Great post, thanks.

Blogger John Phillips -- 5/05/2010 4:20 PM  


I don't think so. The NFL can still suspend players who test positive for marijuana even if marijuana use is legalized in California (there are a number of legal drugs on the NFL's list of banned substances), as long as California does not also enact a workplace drug law that prohibits employers from suspending employees for using legal substances.


I'm not aware of any legislation pending in those three states, though that could change in Minnesota if the state court rules that the suspensions of the Williamses were illegal under state law. From what I have read, that decision will come down tomorrow (Thursday).

Blogger Gabe Feldman -- 5/06/2010 12:36 AM  

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Anonymous Dinah Bee Menil -- 5/10/2010 2:42 AM  

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