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The Starcaps Case and the Impending NFL Labor Fight

By Jeffrey Standen

The recurring drama of the National Football League season is off to a great start, except for the part where my beloved Patriots took it on the chin last week against the hated Jets. Looming over all the optimism of a new season is the much-anticipated labor crisis that threatens a return to the strike-filled era of the late part of the last century, an era in which sports unions flexed their young muscles against entrenched management interests. All football fans are hoping for an interruption-free continuation of America's most popular spectator sport.

For the most part, the job of the courts is to stay on the sidelines during labor negotiations. Their limited role is to police unfair labor practices and keep the parties negotiating. On occasion, in the course of a negotiation or immediately afterwards, courts are also called on to affix the scope of the non-statutory labor exemption. The importance of this exemption cannot be overstated. The non-statutory labor exemption basically means this: it's "non-statutory" (that is, a court made it up); and it's a "labor exemption": not an exemption from federal or state labor laws, but an exemption that exempts "labor" from the federal anti-trust law. That's right. Labor unions and management interests can together reach agreements and otherwise act in concert in ways that violate federal antitrust law, and no one can do anything about it. A private agreement to break the law renders the law invalid.

Which brings to mind the recent decision of the United States Court of Appeals for the Eighth Circuit in the matter of the Minnesota Vikings' defensive tackles, Kevin and Pat Williams, against the NFL in the "Starcaps" dispute. The appellate court upheld the trial judge's decision to subject the NFL's steroid-testing policy to the dictates of Minnesota's drug testing workplace act.

As I said, courts don't often get much involved in labor negotiations. But they can sure mess them up.

1. The issues are a bit too complex to submit to easy summary, but at the nub of the case is whether or not federal law "preempts" state law. Kevin and Pat Williams tested positive for a weight-loss substance, apparently a common masking agent to hide steroid use. It appears the players ingested the substance by taking "Starcaps," an unregulated dietary supplement. The players were suspended by the commissioner's office (acting as arbitrator of the validity of the test) in keeping with the NFL's Steroid Policy, which policy was negotiated between the NFL and the players' union. The NFL's drug testing procedures, however, may not comply with Minnesota's state law that sets the parameters for workplace drug testing schemes in Minnesota. So the issue is this: may the NFL and its players agree to a policy that violates state law, just like they have agreed to many policies (such as the NFL draft) that violate federal law?

2. There's a lot more going on in this case than just who gets to play defensive tackle for the Minnesota Vikings. On the one hand, you might wonder why any two people or parties should ever be at liberty to agree to anything that violates the law. After all, if the State of Minnesota has decided that no Minnesota worker in any context should be drug-tested without the careful adherence to stated procedures and opportunities for appeal, why should NFL workers be treated any differently? The point of Minnesota's law is prevent anyone from agreeing to anything less, no matter what pressures the employer may bring to bear. Aren't those pressures every bit as substantial in the NFL, with its short player careers and the constant threat of contract termination?

3. On the other hand, the NFL is undoubtedly trying to run a business on a national scale. The NFL rightly argues that, if this decision stands, players in each state could theoretically be subject to differing rules insofar as steroid testing goes. The next version of the collective bargaining agreement will have to be written in terms of the "lowest common denominator": the most pro-worker state statute will by necessity form the bottom floor for any national testing plan, assuming the NFL and NFLPA want a single, national standard for all its players. This result requires more than a big legal research project: the supposed effectiveness of the NFL's current policy could be significantly undercut if testing conditions and player sanctions were limited by Minnesota law. (The Minnesota statute, for example, precludes an employee from discharge without first being relegated to treatment; the NFL policy provides for strict liability for all positive tests and requires an immediate four-game suspension for first-time offenders.)

4. The Eighth Circuit court was a little flippant in its dismissal of the NFL's arguments. Quoting from another court's opinion, the Eighth Circuit stated that "[federal labor law] did not give employers and unions the power to displace any state regulatory law they found inconvenient." The federal Congress did not "wish to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation." (This quote came from a Supreme Court decision.) This is unconvincing. Private agreements override laws all the time. Private agreements determine legal rights. I own my laptop computer: if you borrow it without my agreement, you're a thief; with my agreement, you're a borrower. What is the nonstatutory labor exemption but a private agreement to waive federal law as it applies to the subjects of that agreement? The law is not in place to preclude private agreements; it's there as a "default rule," to supply a fictitious agreement where none was reached explicitly.

5. The better approach for the court would have been to ask whether federal law should empower these particular parties to form an agreement to override contradictory state law provisions. It should. These are well-represented antagonists who are very fully aware of their rights and interests and are both willing to make horse trades on all aspects of employment, including drug-testing protocols and procedures. Agreeing to a relatively intrusive steroid testing program might serve the interests of both the NFL and the NFLPA, given the league's salience in the public mind and its appeal to America's youth.

6. A decision that significantly handicaps the latitude of permissible agreements that the NFL and the NFLPA may strike creates one additional impediment to a successful bargaining resolution. The Eighth Circuit's opinion, remember, in effect prohibits the negotiators from striking any deal on a steroid policy that violates Minnesota law. It will render a successful negotiation more problematic. And any future change in law, in Minnesota or elsewhere, could also render a negotiated resolution immediately obsolete. Courts tend to defer to collectively bargained agreements in resolving labor disputes for good reason. Judicial pronouncements on the terms of labor usually do little good.

Full post as published by The Sports Law Professor on September 21, 2009 (boomark / email).