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.
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