The Coming Federalization of Anti-Doping Policy

Just this past week, a Congressional subcommittee held a hearing on the recent Starcaps decision out of the Eighth Circuit. (I wrote about that decision here, and not all that favorably.) To refresh your recollection, the court decision allowed two NFL players, both named Williams and both playing defensive tackle for the Minnesota Vikings, to assert claims for damages against the NFL in state court. The players argued that the NFL's anti-doping policy violates Minnesota state law governing workplace drug testing. The NFL's position was that, even if the NFL policy and state law conflict, state law claims are preempted by federally protected collectively bargained agreements. The "Starcaps" court said they weren't. So we're left with the prospect of two NFL players having violated the NFL anti-doping policy with apparent impunity. We're left with two NFL players (or one team of players) subject to one (more lenient) set of rules, and everyone else subject to the NFL's more punitive policy. One league; different rules.

Pretty clearly, the NFL and interested members of Congress are not pleased. Roger Goodell testified at the hearing, asking the Congress to intervene by reasserting the supremacy of federal law and federally protected collectively bargained agreements over state law. The Players Association's executive director, DeMaurice Smith, along with most of the other witnesses at the hearing, advised the Congress to delay action on the grounds that the Minnesota court could still see things the NFL's way, or that the Minnesota state legislature might amend its law to accommodate the NFL's policy.

I can't speak to the politics in Minnesota's state house. But I can offer an opinion on the legal case: nothing's going to change. No good result for the NFL can possibly come out of the state court proceeding. If the Eighth Circuit's decision stands, the drug-testing policy of the NFL and other sports leagues has been balkanized. It's a done deal; the NFL policy is as good as dead. By waiting, the Congress is only inviting a crisis. And the crisis will not produce the modest intervention prescribed by Goodell and another witness at the hearing; instead it will result in the Congress' sweeping takeover of anti-doping policies for all sports. The union, which should have asked the Congress to protect the collective bargaining process, will instead find its players subject to a set of rules much harsher than ever before.


1. As it relates the the NFL anti-doping policy, the Minnesota state trial that looms in March 2010 is irrelevant. Indeed, it's on that precise ground (that the state case and the NFL CBA are not relevant to each other, thus rendering the state case not preempted) that the federal court allowed the state case to proceed. So how can the state case uphold or reaffirm the NFL policy? The state court will have nothing to say about the NFL policy. I think the suggestion made to the Subcommittee that things can somehow turn out all right in Minnesota is unsupportable. The Minnesota court could, in theory, read Minnesota's law to mirror the current NFL policy, but this suggestion (also made at the hearing) is very dubious. Minnesota's law prohibits any suspension for the first positive test; the NFL policy mandates a four-game suspension without pay. How can those opposites be reconciled? Remember, a Minnesota state trial judge already granted the players a preliminary injunction on the grounds that the players would "likely succeed" on their claims that the NFL's policy violates Minnesota law. These players will win. As far as the NFL policy is concerned, of course, they already have.

2. Regardless of any interpretation of state law by a state court, what's on the books is a decision by a federal appellate court that holds that players may assert state-created rights to avoid being subject to the league's anti-doping policy. Nothing in the opinion limits this principle of law to the NFL; the same reasoning should apply to the policies of other professional sports leagues. Indeed, nothing limits it to the pros; some courts have held that NCAA scholarship athletes comprise "employees" for state law purposes, so perhaps even amateurs will be able to challenge drug suspensions, should they live in a state that has a law in disagreement with the testing protocols of the governing body of the sport.

3. We're not just talking of a few states that have, like Minnesota, workplace drug testing laws more protective of worker rights than the NFL policy. Nearly all states are home to a professional team in some sport. Potentially, the state law of any of these states could form the basis for nullification of a drug suspension. These state laws could also change, as of course they are subject to legislative amendment and judicial interpretation. How effective would a sport league's anti-doping policy be if it were limited by the "most protective" state law? State laws vary a lot on this subject. Some require all tests be based on suspicion; some limit sanctions; some place limits on the means by which urine samples are taken. Writing a policy that complied with all applicable state laws would be difficult.

4. More importantly, the resulting "state-law-proof" policy might not serve the needs of professional sports. State laws on workplace conduct are written with typical workers in mind. In that setting, careful proscription of testing procedures and significant allowances for rehabilitation of the worker make sense, given the typically long employment relationship and given the substantial investments worker and employers make in each other. In the NFL, however, careers are short and pay and public salience is high. Players are well-compensated for their agreement to submit themselves to more rigorous testing procedures; the public attention the league earns makes the teams interested in providing that compensation to present the public a clean image. The short career suggests that swift punishment, not interminable rehabilitation, provides the preferable response to the first positive test. Finally, the need for competitive balance on the playing field requires that players who have helped themselves to an unfair pharmacological advantage need to be removed from the field, not sent to mid-week counseling meetings.

5. Soon enough we'll see other athletes go through the door opened by the Vikings' defensive tackles, challenging drug suspensions in state courts. Indeed, in the wake of the Starcaps case, what competent lawyer for a player would fail to assert a state law claim? Remember, because this claim is not based on the CBA, the players union has no say in the matter, as it would ordinarily in an arbitration claim. The player need only retain a private lawyer for hire to file suit and needs nobody's permission to bring that suit. State courts and state laws will soon define the permissible boundaries for doping policy in major sports. It won't take much of this for the federal Congress to intervene.

6. And when the Congress intervenes, I predict it will do so in a forceful way. Uninterested in the legal complexities of federal law preemption, lacking faith in the collective bargaining process, and perhaps responding to a public outcry, the Congress will proceed to adopt national drug-testing standards for all professional and amateur sports. Most likely these standards will mirror the very strict and most intrusive rules of the World Anti-Doping Association. No one's going to be very happy if this comes to pass.

7. The unions and the Congress could have avoided this path had the unions and the other panelists agreed with the recommendation that Congress intervene currently, but in a modest, surgical way. The Congress was advised at the hearing to adopt a simple measure: amend Section 301 of the Labor Management Relations Act to preempt any state claim that would conflict with any drug-testing policy incorporated as part of a valid collective bargaining agreement. This small measure would have in a stroke of the President's pen taken all the sting out of the Starcaps case and completely insulated sports CBA's from the vagaries of state law. It would also have upheld the significance of the collective bargaining process in sports. It would have maintained the union's relevance by giving the players a voice in establishing doping policy. Instead, they will one day find themselves subject to doping policies set by WADA: a group of unseen people in far away countries, an organization over which American athletes and American sports leagues will have no influence.