In 2008, two Minnesota Vikings defensive linemen (Kevin and Pat Williams) received four game suspensions for violating the NFL’s drug policy. The players tested positive for Bumetanide, a substance that can help to mask steroids. Both players attributed the positive test to the weight loss supplement StarCaps. The players appealed and the appeals were rejected by the NFL. The players then filed a lawsuit against the NFL in state court in Minnesota, which granted an injunction against the suspensions.  viking

The players alleged that the NFL knew: that NFL players were using StarCaps; that Bumetanide was an ingredient in StarCaps; that Bumetanide was not listed as a StarCaps ingredient; and that the NFL failed to alert NFL players that StarCaps contained a banned substance. The players further alleged that the suspensions were merely a cover used “in convincing public officials that the league is seriously policing the use of steroids.”

The case was removed from Minnesota state court to the United States District Court for the District of Minnesota, where the Court granted summary judgment to the NFL on all claims, except for the plaintiff’s claim that the NFL violated Minnesota workplace law.  This claim was remanded to the Minnesota state court. The key issue remaining was whether the NFL and the Minnesota Vikings could be considered “joint employers” of the players.

With the case back in Hennepin County State Court, Judge Gary Larson ruled, in May, 2010, that that NFL and the Minnesota Vikings were joint employers of the players. Thus, the NFL was subject to Minnesota workplace law. Judge Larson found that the NFL violated Minnesota’s Drug and Alcohol Testing in the Workplace ACT (DATWA) when it failed to notify the players of the failed tests within three days of the failed test. However, Judge Larson ruled that the plaintiffs were not harmed by this delay, and therefore that the injunction issued in 2008 against the suspensions should be lifted. The players appealed, requesting that the suspensions be permanently blocked.

On February 8, 2011, the Minnesota Court of Appeals ruled in favor of the NFL. First, the Court found that the state court’s ruling that the NFL and the Vikings were joint employers was not clearly erroneous. Second, the Court (rejecting the district court’s holding) found that Bumetanide is not a banned substance under the DATWA, and therefore the players were not entitled to be notified of its presence in StarCaps.

Under the DATWA, the issue was the meaning of the term “drug.” For the purposes of the Act, drug is not defined broadly, but rather as a specific list of controlled substances. Since Bumetanide was not one of the controlled substances listed in the DATWA, the NFL did not have to follow Minnesota notification procedures.

The key take away from this case may be that the Court of Appeals, in dicta, stated that had the drug the players tested positive for been a banned substance under the DATWA, then the NFL would have had to follow Minnesota law. In a footnote, the Court stated, “[w]e are emphatic on this point because, despite repeated, direct questioning at oral argument, counsel for the NFL would not acknowledge that the NFL is bound by DATWA.”

Thus, even though the NFL may have won this case, it may not yet be in the clear when it comes to enforcing suspensions under its drug testing policy. In light of this dicta, it would be wise for the NFL to be sure that it is in compliance with the state laws for each of its thirty-two teams before attempting to enforce its drug testing policy in the future.

Charles Michels

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