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Just So We're Clear, the NFL Steroid Policy is Dead

By Jeffrey Standen

I want to report to the world that I just saw the NFL's steroid policy violated on national television during the Vikings-Cardinals game. The Minnesota Vikings are fielding ineligible players. Their defensive tackles, Kevin and Pat Williams, tested positive before the season for a steroid masking agent and thus are subject to the four-game suspension prescribed in the NFL steroids policy. This suspension is supposedly mandatory; moreover, the policy does not give the commissioner any discretion to curtail the suspension. It's mandatory and automatic. Yet neither Williams has suffered a suspension. Several players for the New Orleans Saints are similarly ineligible yet they too continue to play, all in direct contravention of the league policy.

These players are playing because the NFL steroid policy is dead. The NFL tried to suspend the Vikings players, but in the ongoing "Star Caps" litigation the players successfully challenged their suspensions in state court under state law. They won an injunction restraining the NFL against imposing its policy against them; the court's reasoning (that the NFL policy contravenes state law) would also prohibit the league from suspending any Vikings player under its policy, no matter how egregious the violation. Brett Favre could take a needle on the sidelines in full view of the "Favre Cam" and there's nothing the league could do about it, assuming the league discovered the nature of the injection by following its drug-testing policy.

Not only are the Vikings players essentially free from the NFL policy. Most likely, no player from any team will ever be suspended again. Any player who tests positive for a banned substance will hire a lawyer. That lawyer's first job will be to explore the possibilities of a law suit in state court, much like the one the Williams brought successfully. Indeed, it would presumptively be professional malpractice for a lawyer to ignore this possibility. The lawyer would then sue the NFL in state court, invoking any state law or state constitutional rule that might provide state workers with greater protection against workplace drug testing than that prescribed under the NFL policy, as did Minnesota law. If the state law does confer greater protections, then the players will likely be granted an injunction against the NFL. This result should not be too hard to achieve, especially if the NFL continues to enhance its steroid policy to make it less protective of player privacy than the typical state worker law.

Even if the applicable state law is not more protective than the NFL policy and the steroid-using player does not sue, the NFL policy will still not produce the "mandatory" suspension. The treatment the NFL accorded the Saints players shows us why. The Saints players could have been suspended. Louisiana drug-testing law provides an exception for the NFL policy. Yet the NFL decided not to suspend the guilty Saints players because the Vikings players were allowed to play despite being guilty of ingesting the same substance. To punish the Saints but not the Vikings would have appeared palpably unfair and would have violated the league's overriding goal of competitive balance. The reasoning that kept the Saints players on the field would apply with equal force to the next player who violates the policy. Why should one team ever get to field players who violate the policy and but not another team? Why treat teams unequally?

Of course, the NFL's "fairness" perspective is contestable. State law, some might argue, confers both advantages and disadvantages on local teams and does so in ways that are not mirrored in every other state with an NFL franchise. For example, states subsidize their teams unequally, affecting the financial health of franchises and their ability to attract and retain players. Some states provide financial support for their teams in the form of stadium building or even in a direct monetary payment (as Louisiana does for the Saints). Marginal state income tax rates on individuals vary noticeably, and are thought to constitute a significant factor in player relocation decisions. So the fact that some players in certain states benefit from pro-worker labor laws could be characterized as simply another unavoidable variation in the attractiveness of certain franchise locations. Indeed, if drug-testing protections become important to athletes, states may help their franchises compete for free agents by passing protective state laws to override league-wide policies.

But this analogy seems overly simple. Unlike favorable tax laws or variations in state subsidies, were the league to allow some players to violate the league policy with impunity while denying the same treatment to others, then the league is generating a competitive advantage that would be exercised on the field. Certain teams may field substance-abusing players while others may not. This is no hypothetical; this is exactly what has been going on in the NFL this very season. The Vikings and Saints are playing ineligible athletes and enjoy a competitive advantage as a result.

By sheer coincidence, the Vikings have one of the best won-loss records in the league. The Saints have yet to be beaten.

Full post as published by The Sports Law Professor on December 06, 2009 (boomark / email).