It appears that the contamination of a woman's weight loss supplement used by NFL players may inexorably complicate the anti-steroid policies of professional sports leagues. So says the St. Paul Pioneer Press.
The story (briefly) goers that several NFL players including running back Deuce McAllister of the New Orleans Saints, and tow Minnesota Vikings defensive linemen -- the Williams boys -- took StarCaps to loose weight. Starcaps is contaminated (or spiked) with bumetanide a potent diuretic that can also be used as a masking agent for steroid abuse. The players were suspended.
However, the players appealed the suspensions to local and Federal courts who blocked the NFL suspensions, on procedural grounds. Seems the arbitrator in the NFL's players internal appeal was the NFL's own lawyer, hardly a dispassionate observer. To the PP:
A federal judge's injunction allowing suspended Vikings Kevin Williams and Pat Williams and three New Orleans Saints to play the rest of the season could profoundly affect how the NFL and other professional sports enforce their drug testing policies, legal experts said Friday.
U.S. District Court Judge Paul Magnuson's ruling Thursday blocked the NFL's four-game suspensions and set a course for trial. His findings also weakened the league's Policy for Steroids and Related Substances and marked a path for players to challenge their sport's punishments in court, according to one sports law scholar.
"Every disciplinary decision of a major professional sports league is up to the unfettered, Solomonic wisdom of U.S. district judges," said professor Stephen Ross, director of Penn State's Institute for Sports Law.
If one knows about 'judicial realism' that could be a frightening prospect. Clearing every particular disciplinary decision would appear to be time-consuming, and costly. US courts do not move with the speed of the NFL schedule.
On the other hand, a decision to suspend a player based on lab tests without good due process restricts the players form earning a living. And it appears the NFL did not present the players with objective due process.
Ross and others scrutinizing Magnuson's 20-page decision were drawn to his initial
determination that the NFL violated public policy by failing to inform the players in November 2006 the diuretic they were using contained a known masking agent for steroids for which a positive test could result in suspensions.
The judge wrote it was unfair for Jeff Pash, the league's chief legal officer and arbitrator, to punish the players after withholding specific information that might have helped them avoid testing positive for the banned substance bumetanide.
It appears Mr. Bash isn't particularly objective. As an arbitrator, he is not objective as he represents the NFL...in fact the NFL's chief legal consul. Imagine the arbitrator is the lawyer for the NFL in the NFL v. players. Odds are somewhat weighted against the players. The Daily Norseman says this:
The Mr. Pash he's referring to is Jeffery Pash, the person who heard the appeals of the cases of the StarCaps Five. Oh, and in a minor but somewhat interesting fact, Mr. Pash is also the NFL's chief legal counsel.
Basically, this is the equivalent of getting a judgment against you in a divorce proceeding, filing an appeal, and having the appeal heard by the mother-in-law that never liked you anyway. See, I've watched enough episodes of Law & Order in my life to be under the impression that arbitration, in a legal matter, is supposed to be handled by a neutral third party. . .not somebody that's on the payroll of one of the parties involved. That really doesn't strike me as impartial or neutral, but that's just me.
The Star-Tribune also talked to a couple of Twin Cities attorneys on the matter, and they're basically under the same impression:
Marshall Tanick, who has represented players in drug-testing matters, said of Magnuson: "He came out pretty strong on this one. This looks like, at the end of the day, the scoreboard is going to be in favor of the players."
John Klassen, an attorney who does much of his work in federal court, said Magnuson's language about Pash's partiality and the league's obligation to warn players is a clear signal that the tide may have turned against the NFL.
"It is no longer about the players' conduct," Klassen said. "It is about the NFL's conduct, which would be a surprise turn that the NFL didn't expect when they stepped into this."
After all, it was the NFL that moved to shift the Williamses' case from state court -- where they had obtained a temporary restraining order two weeks ago -- to federal court.
"It's the old lesson," Klassen said. "Be careful what door you open and what arena you walk into. And the NFL may come to regret that."
Backto the Pionieer Press. As pointed out the NFL may be correct in their policy, however their administrative handling of the policy presents serious troubling possibilites. ANds such bungled administrative actions then threaten to jade public opinoin about anti-doping effprts.
That narrow interpretation (of the Federal judge) has broader implications for the sports world because it undercuts the bedrock principle of strict liability governing all drug-testing programs: players ultimately are responsible for what they ingest.
Moreover, it dealt a blow to the NFL's image because the public tends to view steroids and drug cases in black and white, said professor Paul Haagen, co-director of Duke University's Department of Sports Law and Policy.
"People think of cheaters and not cheaters, people who take the stuff or who are clean," he said. "What you've got here is this middle ground. Yes, (the players) ran a risk by using this supplement, and, yes, it turned out to be a banned substance. But there is a justice problem.
"At that point you are in danger of losing the public-relations war, which is central to anti-doping."
The U.S. Anti-Doping Agency monitors the country's Olympic athletes. Its authority is unrivaled in the realm of drug testing because it is not governed by a collective bargaining agreement like major pro sports are.
The NFL is very concerned...
Magnuson's decision is subject to appeal, and he ultimately could reverse himself after hearing a full vetting of the case if the NFL and the union hold evidentiary hearings and proceed to trial.
Until then, his words set a precedent for other players to challenge the authority of NFL Commissioner Roger Goodell on similar grounds.
all,
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