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Posted: Saturday December 6, 2008 3:03PM; Updated: Saturday December 6, 2008 3:03PM
Michael McCann Michael McCann >

Player suspensions hinge on the question of league responsibility

Story Highlights

Six NFL players tested positive for the diuretic bumetanide, a banned substance

The steroid policy says that players alone assume the risk of banned substances

The NFLPA argues that the league should inform players of mislabeled products

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Deuce McAllister was among the players suspended for testing positive for the diuretic bumetanide.

Should an NFL player be suspended for consuming a dietary supplement which contains a diuretic (a substance which can help to mask the presence of anabolic steroids in one's body) prohibited by the NFL's collectively-bargained steroid policy, even when the product's label omits mention of the diuretic?

The short answer is yes, he should. That's because Section 3.E of the NFL's Policy on Anabolic Steroids and Related Substances expressly calls for a strict liability standard -- which refers to a standard whereby fault is assigned to a person for engaging in a particular act, regardless of intent, knowledge or reasonableness -- for players who test positive for a banned substance. The strict liability standard means that whether the player accidentally or unknowingly consumed the banned substance is irrelevant; all that matters is whether the substance is found in his body through a sanctioned drug test. Thus, unless the player can prove that the test itself was somehow defective, he will be punished as per the terms of the steroid policy.

If that outcome seems unfair to the players, remember that the NFL Players' Association approved the league's steroid policy through collective bargaining. In other words, the NFLPA, which is the exclusive bargaining unit for NFL players, agreed to the strict liability standard that, in some circumstances, might seem unjust. Moreover, the presence of collective bargaining diminishes the likelihood of judicial review, even for unjust outcomes. Courts seldom interfere with clearly-defined, collectively-bargained rules between leagues and players, irrespective of apparent "unfairness," since the players signed off on the rule.

But let's say that several high-ranking NFL officials know that a product contains a prohibited diuretic, know that the product's label fails to mention the substance and know that players use the product without awareness that it contains the diuretic. If a player then consumes the product, without knowing of the diuretic's presence, and then tests positive for the diuretic, should the NFL, as opposed to the player, be held responsible?

On Friday that question motivated U.S. District Court Judge Paul Magnuson --who has jurisdiction to hear disputes between the NFL and NFLPA over their collectively-bargained language -- to grant a temporary restraining order and uphold another, effectively enabling several suspended players, including New Orleans Saints running back Deuce McAllister and Minnesota Vikings defensive tackle Kevin Williams, to play this Sunday.

The NFL had suspended McAllister, Williams and four other players for testing positive for the diuretic bumetanide, a banned substance contained in the dietary supplement StarCups, the label of which omits mention of bumetanide. After five of those players' appeals were denied by the NFL (a sixth suspended player, Houston Texans long snapper Bryan Pittman, has not pursued legal recourse), the NFLPA brought a lawsuit, claiming that several league executives engaged in fraudulent behavior by knowing of StarCaps' ingredients and opting not to reveal that information to the players. The NFL disagrees with the NFLPA's factual assertions, but Judge Magnuson believes that more time is needed to study those assertions and how the steroid policy should treat them.

So what will happen?

The litigation will now turn to interpretation of the collectively-bargained steroid policy, which does not address the question of whether knowledge by league officials of a prohibited diuretic in a product obligates the league to notify the players.

On one hand, players are repeatedly warned in the steroid policy that they alone assume the risk of prohibited diuretics in the products they consume, even products approved for use by team medical and training personnel. Moreover, the steroid policy makes no mention of a duty on the part of the league to notify players of a product's actual contents. As unfair as it may seem, the league may have good reason to refrain from notifying players, since doing so might create a precedent whereby players could challenge suspensions based on alleged league knowledge -- a standard that would defeat the bright-line, clear-cut appeal of the strict liability standard articulated in Section 3.E .

On the other hand, and assuming the veracity of the NFLPA's alleged facts, a judge may be disturbed by an outcome whereby a player is suspended even though the NFL's independent administrator on anabolic steroids and related substances -- the person who oversees league policy on steroids -- knows of a mislabeled product used by players and opts not to inform players about the product's true contents.

A judge who believes the NFLPA's assertions and is sympathetic to the players could rule that the NFL had a duty to notify the players, particularly since the league administers the very steroid test that leads to player punishments. In contrast, a judge who is reluctant to "read between the lines" of a collectively-bargained policy would probably hold for the NFL, as the steroid policy's language addresses player responsibility for the presence of a diuretic but not league responsibility.

These and other considerations are undoubtedly running through the mind of Judge Magnuson, who will continue to hear arguments by the NFL and NFLPA over the player suspensions before ruling further. legal analyst Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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