The StarCaps saga took yet another turn on Thursday when Minnesota state court Judge Gary Larson finally answered the basic question of the case -- can the NFL suspend Pat and Kevin Williams? It took almost 2 years to get there (you can find a detailed description of the case here), but Judge Larson concluded that Minnesota law does not prevent the NFL from suspending the Williamses. So, in one sense, this was a victory for the NFL.
But, there is also a loss wrapped inside this victory. Since this case began, the NFL has been seeking a determination -- first from the federal courts, then Congress, and now Minnesota state court -- that the NFL's drug policies trump state law, so that players cannot resort to state laws to challenge drug suspensions. The NFL did not get that sweeping pronouncement from the federal courts, Congress, or from Judge Larson.
Instead, Judge Larson held that the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA) apply to professional sports leagues. Why? Well, most simply, because the statutes do not provide any explicit exception for the sports leagues. Although the legislative history of the statutes make it fairly clear that those laws were not created to govern the performance-enhancing drug testing of professional sports, Judge Larson was not willing to ignore the plain meaning of the statute to read in an exception for the NFL.
Let's take a closer look at Judge Larson's opinion and what it means for the league and the players going forward.
Judge Larson made four key findings that led to his ultimate conclusion that the NFL may suspend the Williamses: 1. The NFL is the employer of the Williamses for purposes of DATWA; 2. The NFL violated DATWA's three-day notice requirement; 3. The Williamses were not harmed by the NFL's violation of the notice requirement; 4. The Williamses failed to prove that the NFL violated DATWA's confidentiality provision.
Let's take each one in turn:
1. The NFL is the employer of the Williamses for purposes of DATWA.
This was a significant issue for the NFL, because DATWA only applies to drug testing conducted by "employers" of Minnesota employees. A ruling that the NFL is not the employer of the players would have been a sweeping victory for the NFL, immunizing the league from DATWA (and potentially from other similar state statutes). Instead, noting that the NFL "controls everything about the drug testing process," Judge Larson held that the NFL and the Vikings are joint employers of the players, and thus the NFL is subject to DATWA.
2. The NFL violated DATWA's three-day notice requirement.
The Williamses alleged that their suspensions violated several provisions of the Minnesota state laws, but Judge Larson held that the NFL only violated DATWA's notice provision, which requires the drug laboratory to disclose a positive test to the employer within three days of the test, and then requires the employer to disclose the positive test within three days after receiving the positive test report from the lab. The Williamses were initially tested on July 26, 2008, but Kevin Williams did not receive notice of his positive test results until September 26, 2008 and Pat Williams did not receive notice until October 3, 2008. The NFL had a simple explanation for why it took (much) longer than three days to disclose the results: The NFL uses the UCLA Olympic Analytical Laboratory for its testing (a lab that Judge Larson concluded "meets or exceeds the requirements" for testing under DATWA), and "the UCLA lab is overworked and cannot possibly conduct player drug tests within three days."
3. The Williamses were not harmed by the NFL's violation of the notice requirement
This was the key finding in the case that gave the NFL its "win." Although the NFL clearly violated DATWA's three-day notification requirement, Judge Larson concluded that the violation did not cause the Williamses any harm. Here's the relevant language from Judge Larson's opinion:
When asked how he was harmed by any delay in notification, Kevin responded, "I don‟t know, I wasn‟t." Similarly, Pat answered, "I guess I wasn‟t harmed." Because Plaintiffs did not suffer any damages as a result of the delay in notification, they are not entitled to relief under DATWA.
In other words, because the Williamses admitted that the delay did not damage them, the NFL's technical violation of DATWA did not warrant lifting the suspensions.
4. The Williamses failed to prove that the NFL violated DATWA's confidentiality provision.
The other issue left to be determined at the trial was whether the NFL violated DATWA's (and the NFL's own) confidentiality provision by disclosing the Williamses' positive test results to the public. Because the Williamses admitted at trial that they disclosed the news of their positive test to several other people, Judge Larson found that it was "impossible for the Court to conclude by a preponderance of the evidence that the NFL must have violated DATWA‟s confidentiality provision."
Judge Larson also spent a surprising amount of time chastising the NFL throughout the opinion. For example, although Judge Larson could not determine that the NFL was responsible for leaking the results of the Williamses' positive tests, he noted that "the media leak was clearly of no importance to the NFL Commissioner, as he did nothing to determine that the NFL did not violate DATWA's confidentiality provision. The Commissioner did not conduct an investigation or make any inquiries into the matter." Judge Larson also commented that the lawyer for the NFL who did conduct an investigation into the leak "was likewise cavalier about the leak of highly-confidential information or potential violation of state law" and that his testimony at trial about the issue was "contradictory" and "not credible."
Judge Larson also addressed the NFL's failure to notify the players that StarCaps contained bumetanide, despite the fact that the league became aware that StarCaps contained the banned substance as far back as 2006. Judge Larson noted that "Bumetanide is a very potent and dangerous drug and can cause serious side effects, including death, if inadvertently taken and not under the supervisions of a physician," and that counsel for the NFL "made a conscious decision not to inform the FDA or any other regulatory agency [or the NFL Players] that Star Caps contained Bumetanide." Judge Larson added that the NFL directed the drug policy administrator "to report any future players for discipline who tested positive for Bumetanide, even though their use thereof was inadvertent." Judge Larson thus concluded that the NFL "was playing a game of 'gotcha.'"
Where does this leave us? Well, after nearly two years of litigation, we are back where we started. The Williamses will be suspended by the NFL when the season starts, as will Will Smith (Charles Grant was released by the Saints and Deuce McAllister retired). But, the legal maneuvering isn't over yet.
Here's what we can expect:
1) The Williamses will appeal Judge Larson's decision to the Minnesota Court of Appeals and they have already asked Judge Larson to stay the suspensions pending the result of the appeal (which could stretch out past the beginning of the NFL season).
2) The NFL might appeal the 8th Circuit's decision (which held that the NFL Policy did not trump state law) to the U.S. Supreme Court.
3) To close the possible floodgates of Minnesota players suing every time they test positive and are not given notice within three days, the NFL might ask the Minnesota state legislature for an exemption from DATWA (or at least from DATWA's notice provision). Such an exemption would not be unprecedented -- Louisiana's workplace drug testing statute contains a provision that explicitly excludes NFL and NCAA athletes from its regulations.
4) The NFL might continue to press for federal legislation that permits the collectively bargained drug policies of professional sports leagues to trump state workplace drug laws. According to Sports Illustrated's Peter King, California Representative Henry Waxman is close to introducing this type of legislation in the House.
For now, the Williamses will not be on the field when the 2010 NFL season kicks off. But, this saga is far from over...