05/04/2010 05:12 am ET | Updated May 25, 2011

The NFL on Trial

Next week, a trial is scheduled to begin in Minnesota that could determine the fate of drug testing in professional sports. Although not as sexy as last year's A-Rod confessions, this case is far more important. Last summer in this blog, I first wrote about the StarCaps case. The decision of the federal circuit court of appeals has created widespread concern on the part of all professional leagues, although it will just be the National Football League in the dock next week.

The NFL seeks to uphold its suspension of two defensive linemen on the Minnesota Vikings who tested positive for a substance banned under its drug policy. The drug in question is bumetanide, a prescription diuretic and masking agent, which was contained in StarCaps, an over-the-counter dietary supplement whose label did not state it contained bumetanide. The NFL's policy, which was agreed to by the Players Association in collective bargaining, adopted a rule of strict liability: "[p]layers are responsible for what is in their bodies," and "a positive test result will not be excused because a player was unaware he was taking" a prohibited substance." One problem with the policy is that the NFL allegedly did not comply with the provisions of Minnesota's Drug and Alcohol Testing in the Workplace Act (DATWA).

Although there are other complicating facts involved in the case, at its core it involves an old-fashioned tug-of-war between state and federal legislation. Federal law favors collective bargaining, and the NFL's drug policy was the product of negotiations with the Players Association. Minnesota, on the other hand, wants to give workers in that state certain procedural protections when faced with employer drug testing. So far, the courts have ruled that there is room for state regulation.

The central issue in the trial is the coverage and alleged violation of DATWA. The trial judge ruled at the end of February that the NFL's testing facility exceeded state standards, even though it was not certified under DATWA. In addition, the players could provide a written explanation for their positive tests which was sufficient under state law. On the other hand, the League violated DATWA by failing to tell the players of their positive test results within three days of the test as required by the state statute. (The NFL took three weeks to notify the players.) The judge also raised questions about the league's compliance with the statute's confidentiality provision. If this is the extent of the statutory violations, there seems to be no particular reason why the NFL could not meet these requirements and maintain its policy.

Questions still remain to be determined about who actually employs the players. The league argues the Vikings club employs the players, but the players respond that the NFL, which administers the drug policy, should be considered the "employer" under the state statute. This will be addressed during trial.

The rub would come if the NFL was required to consider various, and potentially conflicting, statutory requirements in numerous states where its players put on exhibitions of football. Of course, the NFL could simply adopt the most lenient standard - if Wisconsin required notice within two days, for example, the NFL could comply and still come within Minnesota's three-day rule. There also seems no particular reason why the NFL's regime would want to undermine player confidentiality in any state.

More than the particulars of this case, however, this is a fundamental dispute about power, a battle in which the NFL regularly participates and triumphs. The NFL wants the right to make these decisions without being subject to question or criticism. Unhappy with the courts' decisions in StarCaps, the NFL ran up Capitol Hill seeking legislation protecting its autonomy. So far, there has been no Congressional bailout.

The NFL also wants to control language. Recently, before the Supreme Court in the American Needle antitrust case the NFL insisted the League was a "single entity." In Minnesota, however, it insists that the League is a collection of independent employers of football players. As Alice told the White Rabbit: "I wonder if I've been changed in the night? Let me think. Was I the same when I got up this morning? I almost think I can remember feeling a little different. But if I'm not the same, the next question is 'Who in the world am I?' Ah, that's the great puzzle!"

The NFL's approach to governmental regulations mirrors that held by many sports organizations. The International Olympic Committee and other international sports federations, for example, find repulsive the idea that they would be subject to the laws of the various countries where their sporting events are held. When sued, they typically just avoid showing up. Apparently, they answer to some higher law.

While the NFL does not openly claim it is beyond the jurisdiction of the courts, it is not beyond throwing elbows in the legal scrum. Sports reporters from the St. Paul Pioneer Press, like Brian Murphy, will be in the courtroom to cover the legal festivities and bring us a play-by-play. At a time when the NFL and the Players Association have begun to hurl rockets at each other in anticipation of the labor strife to come, there are sure to be more verbal fireworks in the Twin Cities.