December 15, 2008 7:00 PM
Ronnie Lott's Pinkie Finger--A Concussion-Inducing Look at Sports and the Law
Posted by Zach Lowe
The Am Law Daily isn't a huge football fan (have you ever sat through a game at Giants Stadium in December?), but there's simply no way to avoid the National Football League in this week's sports law column. We are enjoying the National Football League Players Association's aggressive attack on the almost unlimited authority of the commissioner's office (now manned by Roger Goodell). This time, the battle involves the commissioner's right to suspend players upon any positive drug test, a decision the players can only appeal to an arbitrator picked by...that's right, the commissioner.
The players (repped by Fulbright & Jaworski) and their union (repped by Dewey & LeBoeuf, as always) challenged the suspension of five players (three members of the New Orleans Saints and two Minnesota Vikings), who tested positive for bumetanide, a diuretic found in dietary supplements. The league bans it because it can work to mask traces of anabolic steroids. The players claimed they had no idea the supplement they used, StarCaps, contained bumetanide, and the diuretic is not listed as an ingredient on the StarCaps label. Too bad, Goodell said. The league's policy says players are responsible for checking what goes into their bodies. The league even runs a hotline for players to call if they're unsure about a substance.
One player whose trainer called the hotline was told StarCaps contains no banned substances, according to court papers. Even worse for the league: John Lombardo, the doctor in charge of the league's drug policy, testified during an arbitration that if a player called about StarCaps, he wouldn't warn them about that supplement in particular. Instead, he'd just warn the player about diet pills in general.
It gets more Orwellian. It turns out the league knew as early as 2006 that StarCaps contains bumetanide and never told the players! The league even sent StarCaps out for lab tests; the results were published in the November/December 2007 issue of the Journal of Analytical Toxicology (surely a favorite in NFL locker rooms).
This was enough for a federal judge in Minnesota to issue an injunction in early December preventing the league from suspending the players. On Thursday, the same judge extended that injunction and had some harsh words for the league.
The communications breakdown between the league and the players "calls into question the very basis of the NFL's position on banned substances," Judge Paul Magnuson wrote in his legal smack down to a league that is used to getting its way.
Between this and the NFLPA's determination to challenge Goodell's right to suspend players for off-the-field behavior--even if it doesn't result in an arrest--the commissioner's office could be facing an unprecedented challenge to its authority.
Other sports/law news:
• The Arena Football League, citing money woes, cancelled its 2009 season. Then it didn't. Jeffrey Mishkin, a partner at Skadden, Arps, Slate, Meagher & Flom, confirms the firm is advising the AFL on its future but declined to comment beyond that. Gabriel Feldman, director of the sports law program at Tulane University Law School and a contributor to the indispensable Sports Law Blog, says the league is probably discussing using a so-called single-entity structure, where the league, rather than individual owners, owns the teams. Fledgling leagues, such as Major League Soccer and the defunct women's professional soccer league, favor this single-entity strategy as a way to save money by capping player salaries without violating antitrust law, Feldman says. Single entities, after all, cannot violate antitrust law because there is no one else to collude with. (MLS has moved away from the model--thus David Beckham's giant contract with the Los Angeles Galaxy, Feldman points out.)
• Michael Vick, the former star quarterback of the Atlanta Falcons now serving jail time for organizing a dogfighting ring, owes a lot of people a lot of money--including his lawyers. But he won't get much sympathy from readers of this Atlanta Journal-Constitution story on court filings that show Vick spent $201,000 the day before he went to prison last year--including $99,000 for a new Mercedes.
• The Am Law Daily chuckled when Barack Obama mentioned how much he'd like college football's national championship to be decided by a playoff instead of the convoluted Bowl Championship Series system. Well, Obama's comments emboldened Rep. Joe Barton, the ranking Republican on the House Energy and Commerce Committee, to consider introducing legislation mandating that the NCAA introduce a playoff system. (Hey, it's not like the nation has any pressing energy or commerce issues to address.) Barton complained that the current system robs deserving teams of a chance to play for a title--and the millions in revenue that comes with that opportunity. Guess where Barton's from? That's right, Texas, home to the University of Texas, the team almost everyone agrees got unfairly bumped out of this season's title game (to be contested between the universities of Oklahoma and Florida).
• Finally moving away from football, we had to address the National Hockey League's move to suspend Dallas Stars forward Sean Avery for six games. Why did the league suspend Avery--admittedly an unpopular player known for his annoying on-ice antics and his internship at Vogue--for two games longer than the New York Giants suspended a player who shot himself in the leg with an illegal gun? Because Avery made some unflattering comments to the press about how other hockey players seem to date women Avery has already dated--including Elisha Cuthbert. This seemed excessive to us. Tulane's Feldman agrees, but says NHL Commish Gary Bettman "can do whatever he wants" in terms of suspensions. Avery does have the right to challenge Bettman's decision in front of an arbitrator, Feldman says. Bettman would have to prove he had "just cause" to suspend Avery for six games, and that might be a tough case for the commissioner to make, Feldman says. But Avery hasn't made a peep about retaining a lawyer or challenging Bettman. The union hasn't gone to bat for him, either, probably because Avery is not the kind of player you want to build a public case around.
• We leave you with this: the world's third-rated chess player may be banned from the sport for two years. You'll never guess why.
A reminder: the column's name is temporary. We're open to suggestions. E-mail us at email@example.com.Make a comment