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StarCaps Anyone?

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You have undoubtedly heard about the litigation in Minnesota involving players on the Vikings who took StarCaps which contained the drug bumetanide, a substance said to mask the use of steroids which is banned by the National Football League. One problem (actually one of many problems with the case) is that the label for StarCaps did not list bumetanide as an ingredient. The NFL knew that StarCaps contained the substance, but it did not inform the players. StarCaps is an over-the-counter weight-loss diuretic that contains, it says, "Natural Extract Papaya & Garlic" that comes from the higher Andes of Peru. (Do papaya and garlic not grow in the lower Andes?) It may be a long way from Peru to Minneapolis, but StarCaps' trail of woe has created full employment for sports and labor lawyers.

Vikings players Kevin Williams and Pat Williams tested positive last summer for the banned diuretic and appealed to the General Counsel of the NFL, Jeff Pash, who denied them relief and upheld their four-game suspensions. The players filed suit in state court which was later removed to federal court, partially dismissed, partially remanded to state court, and the NFL has appealed. This case makes the flea-flicker, fake punt, statue of liberty, hook-and-ladder and fumblerooski look as easy as a quarterback sneak.

The resulting litigation has been a sports law professor's dream. It is filled with questions of the supremacy of federal law, collective bargaining, the rights of states to regulate aspects of drug testing, the role of a non-neutral "arbitrator" and that is just for starters. Wait until the Eighth Circuit Court of Appeals gets involved. The dispute is important enough that this week, some interested parties requested from the Circuit Court the right to submit amicus briefs as "friends of the court." These heavy hitters include Major League Baseball, the National Basketball Association, the National Hockey League and the U.S. Anti-Doping Agency. This makes the StarCaps dispute the Super Bowl of litigation.

The case is too complicated to discuss in a single blog. Let me focus on just two aspects of the soap opera. First of all, the court submissions indicate that the National Football League knew StarCaps contained bad stuff. (Actually, the combination of papaya and garlic sounds pretty vile, but apparently that does not bother the NFL.) Why would the League not informed its players of its discovery? Remember, the label did not indicate the presence of a banned substance, and the NFL would not have tested StarCaps unless it had some reason to believe someone was taking the stuff.

The League (and, presumably, the amici, who will likely be granted the opportunity to contribute their two cents) emphasizes the importance of having a no-fault, strict liability policy. As the NFL Policy states: "Players are responsible for what is in their bodies, and a positive result will not be excused because a player was unaware that he was taking a [banned] substance." There is good reason for such an approach. When athletes are given the opportunity to explain the presence of a banned substance they have come up with a set of doozy excuses. A few days ago, French tennis pro Richard Gasquet had his two-year ban for a positive test for cocaine reduced to a two-month suspension by a tribunal panel of the International Tennis Federation when he "proved" that the coke came from a kiss from "Pamela" at a Miami South Beach hotspot named "Set." The tribunal that bought his story "accepted his evidence that he kissed her at least seven times, each kiss lasting about five to ten seconds." They blamed it all on "Pamela." The NFL, MLB, NBA and NHL are afraid of more "Pamelas."

The leagues are also rightfully concerned about a crazy-quilt of drug policies that could differ from state to state depending on the statutes of the particular jurisdiction. Minnesota has two statutes that the players say apply here. The Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) contains mandatory procedures to insure reliable drug testing in the workplace and requires counseling and not discipline for a first offense. The Minnesota Consumable Products Act (CPA) prohibits employers from disciplining workers for ingesting "lawful consumable products... off the premises of the employer during nonworking hours." If the state statutes applied, that would gut the drug testing and discipline procedures negotiated by the sports leagues and their unions.

Yet, the NFL comes to the StarCaps case with what lawyers would call "unclean hands." If a neutral arbitrator had heard the case under a "just cause" provision, management's questionable conduct in not notifying its players of the poison pill within StarCaps would certainly be a factor. The person who heard the "appeal" was not a neutral. Under the agreement, the case would be heard by the NFL's General Counsel. Jeff Pash, the NFL's longtime General Counsel, is one of the finest sports lawyers I know, but it is normally his job to represent management. His job here as "arbitrator" was to enforce the letter of the agreement reached by the NFL and the Players Association.

Of course, if a court sees Mr. Pash as "an arbitrator," under federal law his award is not subject to review on the merits. Having served as a neutral for almost 35 years, I fully appreciate the importance of court abstention from second-guessing arbitrators. When the Supreme Court in 1960 established the independence and autonomy of labor arbitration, it likely did not have this kind of case in mind. On the other hand, Pash's role was set forth in the agreement reached between the League and the Players Association, and that agreement is worthy of respect in court.

In any case, the manufacturer has now pulled StarCaps off the shelves, so you will have to get your Peruvian papaya and garlic somewhere else.