MSU Law Faculty in the News

Daily News answers questions about Vikings' Kevin Williams and Pat Williams' anti-doping case
September 20, 2009
New York Daily News
By Christian Red and Teri Thompson
Quoted: Professor Robert McCormick

Last year, Vikings players Kevin Williams and Pat Williams both tested positive for the diuretic bumetanide, a masking agent which is on the NFL's banned substance list. The two massive defensive tackles, who are not related, contested the results, saying they took the weight-loss supplement StarCaps, which contains bumetanide, and that they had unknowingly ingested the banned substance. When the NFL handed down suspensions, the two players took their cases to state court, claiming the suspensions violated Minnesota workplace laws. The case was later moved to federal court, where the NFL players union filed a similar lawsuit on the Williams' behalf. While U.S. District Judge Paul Magnuson dismissed the lawsuit and several of the players' claims in May, he sent two claims involving workplace laws back to state court.

On Sept. 11, a three-judge panel for the 8th U.S. Circuit Court of Appeals in Minneapolis upheld Magnuson's decision. Both Williamses are able to play the rest of this season through an injunction issued by a judge in Minnesota state court.

The case is pointing the spotlight at sports unions, the efficacy of collective bargaining agreements versus state laws and whether professional sports leagues will eventually seek independent agencies to conduct their drug-testing policies. It's unclear how big an impact the Minnesota case will have on the landscape of pro sports and their anti-doping efforts. The Daily News interviewed legal experts, anti-doping authorities and league insiders in an attempt to answer some of the questions that have arisen around the case.

Q: What does this mean for the future of collectively-bargained labor agreements in professional sports?

A: It does not reflect well on the NFL that in the Vikings matter the union did not abide by the league's drug-testing program - a policy that the league and union agreed upon during CBA negotiations. CBAs are controlled by federal laws. One expert in labor and sports law thinks the Vikings players' case might signal a challenge for sports leagues' ability to discipline drug cheats in the future. "This is the sort of thing that comes up many times - where federal law conflicts with state law. It's not surprising. That's the area known as pre-emption - trying to figure out to what degree federal law supersedes state law," says Robert McCormick, a law professor at Michigan State University's College of Law who specialized in labor and sports issues. "If this decision holds up, it's going to make collective bargaining extremely difficult on a national basis. How do you have one CBA that's going to be applied throughout the country, for a major enterprise like the NFL or General Motors? Then you have to take into account maybe not just state law, but local law and municipal law. It would make life very difficult."

Q: Will other athletes begin challenging workplace laws?

A: It's likely that players, agents and player attorneys are already looking more closely at state laws and how they differ from the laws imposed by collective bargaining. "I think there will be players who may challenge a suspension, especially if they're in a situation where the state law is in conflict with the CBA laws," says McCormick. "It's certainly possible." McCormick adds that when labor and management enter into a collective bargaining agreement, they commonly waive certain statutory rights. "One primary example is, the vast majority of CBAs will have a 'no-strike' clause. The union promises they are not going to go on strike for the duration of the contract. Employers want that so they know people will show up at work. So they waive the right to strike," says McCormick. "Sometimes in doing that, parties relinquish rights they would otherwise have." But that was clearly not the case with the Vikings players, who immediately went to court to contest the suspensions.

Q: Is the New York workplace law on drug testing as protective as Minnesota's?

A: New York State has no laws that require or regulate drug or alcohol testing of employees. Athletes who play for the Yankees or Mets, for example, would have to abide by the terms of the drug-testing program that is part of baseball's collective bargaining agreement. But according to legal experts, Jets and Giants players might not be bound by New York labor laws since they play in New Jersey. "Their games are played in New Jersey. They practice in New Jersey. Where are the contracts negotiated and do the individual contracts have a governing law?" asks a New York-based labor attorney. Drug testing in New Jersey, "as part of an employee's annual physical examination does not violate state constitutional prohibitions against unreasonable searches and seizures." Outside of New York and New Jersey, athletes may have the benefit of stronger state workplace laws.

Q: What would be the MLB union's stand in such a situation, considering its drug-testing policy has been collectively bargained?

A: The MLB Players Association is historically the strongest union in sports. Still, both the commissioner, Bud Selig, and then-union chief Donald Fehr weathered severe criticism before Congress in 2005, when congressional members hammered both men to clean up baseball and enact stricter anti-doping measures. One baseball insider says that with all of the scrutiny baseball faces in its anti-doping efforts, it would be "unlikely" that a major leaguer would go to the lengths that the two Vikings players went to in suing the league. "Basically what you're saying in that case is, you'd be better served by the state laws than the laws of the CBA. To the extent that the NFL union is supporting (the players' stance), it's in bad faith," says the insider. NFL commissioner Roger Goodell went as far as to tell WFAN that the decision by the 8th Circuit "is putting in jeopardy a drug program that has been put in front of the entire world as being one of the highest standards in all of sports. It puts in jeopardy that players in Minnesota in any sport - this could affect other sports - are subject to a different standard than in the other 49 states."

Q: Would the NFL or any sports league abandon its drug-testing program and leave it in the hands of an independent agency, as Goodell has already mentioned doing?

A: Dr. Gary Wadler, chairman of the World Anti-Doping Agency's Prohibited List, says that the Vikings players' matter won't be the definitive case that will cause pro sports leagues to jettison their drug-testing programs in favor of an outside agency. But he calls it "the first crack in the ice.

"This is an opportunity to re-visit this matter. The NFL is set to begin new collective bargaining negotiations. They have a new union chief (DeMaurice Smith). The NFL should not be involved in drug-testing business. Leave it to experts," says Wadler, who advocates that the NFL should adopt the WADA model for drug-testing. "This isn't the type of thing that will happen tomorrow, but there is an opportunity of the commissioner and union to sit down and say, 'We're going to have more problems like this. Let's make sure it doesn't happen again.'