THE BLOG
12/02/2009 07:52 pm ET Updated May 25, 2011

Dwayne Bowe and the NFL's StarCaps Saga

Dwayne Bowe, a wide receiver for the Kansas City Chiefs, was recently suspended for four games under the NFL Policy on Anabolic Steroids and Related Substances (the "NFL Policy") for using a diuretic. Aside from the long-ish-suffering fans of the Kansas City Chiefs and those with Bowe on their fantasy teams, this suspension did not cause much of a ripple. Bowe, however, is one of several high profile NFL players to be suspended for using a diuretic within the last two seasons. Near the end of last season, the "StarCaps Five"--Pat and Kevin Williams of the Minnesota Vikings and Deuce McAllister, Charles Grant, and Will Smith of the New Orleans Saints-- were all suspended for using bumetanide, a powerful diuretic. In contrast to Bowe, the (attempted) suspensions of the StarCaps Five received a lot of attention and generated considerable controversy, litigation, and even a Congressional hearing, and the Bowe suspension gives us an opportunity to update the StarCaps saga.

For those of you unfamiliar with the StarCaps story, you can read the details here (insert link to sports-law.blog), but, in honor of the late Abe Polin, here is a quick Wizard-point (anyone, anyone?) recap:

• The StarCaps Five were (coincidentally) using StarCaps, a legal, over-the-counter weight-loss supplement.
• StarCaps was created by the "Diet Queen to the Stars," Nikki Haskell. According to Haskell's promotional materials, StarCaps is a "natural dietary supplement...The secret is in StarCaps' unique ingredients...its all-natural blend of papaya and garlic from the higher Andes of Peru." (Umm, Miss Haskell--it's not a secret if you tell everyone).
• Although not listed on the ingredients, StarCaps contained bumetanide, a substance banned by the NFL Policy. (See, that's a secret, Miss Haskell).
• Bumetanide, like other diuretics, is banned for two reasons. First, diuretics can be used to mask the use of performance-enhancing drugs; second, diuretics can pose a threat to player health and safety.
• Although there is no evidence that the the StarCaps Five intended to take or knew they were taking bumetanide, they were all suspended for four games under the NFL Policy because, as the policy states, "You and you alone are responsible for what goes into your body."
• Side note: Oxford recently announced that "unfriend" was the new word of the year. This raises two issues for me. First, I'm not one to question the wise folks at Oxford, but shouldn't we recognize "friend" as a verb before we start throwing a parade (or whatever new words get) for "unfriend"? Second, before creating new words, can we fix some of the old ones? If so, I'd like to start with "bimonthly" (or biweekly, or biannually). According to our friends at Oxford, bimonthly can mean either "twice a month" or "every two months." Really?? We don't want to be more specific than that, but we want to make sure we have a word to describe what happens when I no longer want someone seeing pictures of my family on Facebook?
• The NFL Policy specifically warns players that supplements are dangerous: "Even if they are bought over-the-counter from a known establishment, there is currently no way to be sure that they contain the ingredients listed on the packaging or have not been tainted with prohibited substances.... If you take these products, you do so AT YOUR OWN RISK."
• The Five challenged the suspensions in court because, among other things, the NFL was aware that StarCaps contained bumetanide but did not notify the players. Jamar Nesbit, another player for the New Orleans Saints, also tested positive for bumetanide after taking StarCaps, but chose not to challenge the suspensions. Instead, Nesbit (the Pete Best of the StarCaps Five) served a four-game suspension and then brought a lawsuit against the manufacturers of StarCaps. Shortly after Nesbit's StarCaps lawsuit was filed, the FDA took StarCaps off of the market. (For those of you who missed out on StarCaps, have no fear. Haskell is now marketing the "StarCruncher," which she proclaims is "the first piece of sexy exercise equipment and the perfect way to get in shape and lose weight." Finally, an exercise machines sexy enough for me to start working out!)
• In court, the Williamses also claimed that the suspensions violated Minnesota's state workplace drug testing laws. Minnesota's workplace drug laws are extremely "employee-friendly," and provide significant protections and rights for employees subject to drug testing by private employers in Minnesota.
• The NFL claimed that the collectively bargained NFL Policy trumps individual state laws because the NFL needs to maintain a uniform drug policy without interference from individual states.
• The U.S. Court of Appeals for the Eighth Circuit rejected all of the Five's claims except for the Williamses claims that the suspensions violated Minnesota law. The Eighth Circuit held that the NFL Policy does not trump Minnesota state law and that a Minnesota state court gets to determine (in a trial scheduled for next year)if the suspensions of the Williamses violate Minnesota law.
• The Williamses suspensions were thus lifted, pending the result of the trial in Minnesota state court. Although the Saints players were not protected by Minnesota law and thus were still subject to suspension, Roger Goodell chose not to suspend the Saints until the Minnesota state court ruled.

So, to sum up (note to self: it's probably not a good sign when your recap needs its own recap), a federal court ruled that the NFL Policy does not trump Minnesota state law, and that a Minnesota state court gets to determine if the Williamses suspensions are permitted under Minnesota state law. The NFL thus cannot suspend the Williamses until the state court rules on that issue. And, because the NFL could not suspend the Williamses until the state court trial, Commissioner Goodell chose not to suspend the three Saints. Well, we all know how the story ends--the Vikings are 10-1 and the Saints are 11-0, and the moral of the story is that cheating pays. Ok, not quite. In reality, the story is not over. In November, Commissioner Goodell requested that Congress consider passing federal a law that permitted the terms of a professional sports leagues drug testing policy to trump state law. At the moment, it appears that Congress has chosen not to take any action.

Nevertheless, this ongoing saga raises a number of interesting issues, and I'm going to focus on one (in the interests of full self-promotion, er, disclosure, I testified at the StarCaps Congressional hearing--video and transcripts can be found here): Why does the NFL believe that they need--and are entitled to--special federal legislation that would allow them to violate state laws? The NFL's answer to this question is pretty simple--if they don't get the federal legislation, their performance-enhancing drug policy will be destroyed. The crux of the NFL's argument is that they have a unique need for a uniform drug testing policy. They cannot have different rules apply to players simply because they play for different teams in different states. A non-uniform policy raises at least two potential problems for the NFL. First, it is (arguably) inherently unfair to treat players differently for engaging in the same misconduct. Second, non-uniformity has the potential to impact the competitive balance of the league. There is little doubt that the NFL at least attempts to achieve some form of balance, or parity, among its teams. Whether they are successful or not is a question for another post (and for Detroit Lions fans), but the NFL has a valid argument that unequal treatment of players under the NFL Policy can have an impact on whatever balance the league has created.

The StarCaps saga provides a good example of these possible problems. The Williamses used the same banned substance, under the same general circumstances, as the three players from the Saints. Thus, it would be inherently unfair to treat the Saints players more harshly than the Vikings for engaging in the same conduct. And, the harsher treatment of the Saints players would put the Saints at a competitive disadvantage on the field (or give the Vikings a competitive advantage).

Additionally, the NFL argues that if the Eighth Circuit's ruling is followed by other courts, then the only way the NFL can maintain uniformity is to ensure that every provision of its policy complies with every provision of every applicable state statute. In other words, the NFL Policy can only be as strict as the most lenient, or "employee-friendly," policy. Thus, in a sense, individual states would be able to dictate how the NFL conducts its drug testing. For example, if Florida has a state law (which it does not) that does not allow for the punishment of an employee for a first drug offense, then the NFL can only maintain a uniform policy by not punishing any players--not just those playing for Florida teams-- for a first offense.

These concerns are not completely unfounded, but they are overstated, and it is premature to ask Congress to take any action at this point. Here's why. No court has actually ruled that the suspensions of the Williamses violate Minnesota state law. The Eighth Circuit only held that the suspensions and the NFL Policy must comply with state law. Thus, before seeking help from Congress, NFL should litigate the case in state court. That is a fairly obvious solution, but it has a good chance of success, because there is simply no reason to believe that these Minnesota laws were intended to regulate or limit the ability of professional sports leagues to test for the use of performance enhancing drugs. The Minnesota legislature was concerned about the use and abuse of performance-detracting and addictive drugs (including alcohol and tobacco) by its employees. The legislature was not concerned about the use of performance-enhancing drugs--cheating--by professional athletes. A Minnesota court could thus end this saga and any threat to the NFL by ruling that the NFL Policy does not violate the spirit of the Minnesota laws.

If the NFL loses the case in state court (or even if they win), the NFL's next step should be to seek an exemption from the Minnesota state legislature, not from Congress. The NFL can ask the Minnesota legislature to carve out an exception in the Minnesota statutes that makes clear that those laws do not apply to the collectively bargained performance enhancing drug testing policies of professional sports leagues. Such an exception would not be unprecedented-- Louisiana's workplace drug testing statute contains a provision that explicitly excludes NFL and NCAA athletes entirely from its regulations. And, Minnesota already amended its law in 2005 to allow random drug testing for professional athletes. If Minnesota modified its laws in 2005 for sports leagues, there is no reason to believe they would not do it again.

Granted, seeking an exemption from Minnesota might solve this particular problem, but what about all of the other states with similar laws? Well, I'm glad I asked that question. Of the 23 states that are home to an NFL team, only 5 (Arizona, Louisiana, Maryland, Minnesota, and North Carolina) have any form of mandatory statutory workplace drug regulations, and only 3 of those (Maryland, Minnesota, and North Carolina) have possible conflicts with the NFL Policy. Thus, other than Minnesota, only 2 states present potential conflicts for the NFL, and even those potential conflicts are relatively insignificant.
In short, the Eighth Circuit's ruling has not destroyed the ability of the NFL to test for performance-enhancing drug use. The NFL's suspension of Dwayne Bowe for using a diuretic, while not garnering much attention, is pretty good evidence that the policy still works. Missouri, like most other relevant states, has no law that provides additional protection for Bowe. And, the better solution to deal with the few state laws that might conflict with the NFL Policy is to ask those states--and not Congress--to clarify their laws.