The Saints and that whole StarCaps-NFL-Steroids-Policy Thing

You've heard about the NFL-ordered suspensions of Deuce McAllister, Will Smith, and Charles Grant, right? (See here, here.)

After the players got suspended, the NFL Player's Association (Wikipedia, official site) sued the NFL on their behalf, trying to enjoin the suspension (so the players could play the remainder of the season).

In a little bit more detail, here's what's going on.

The dispute is about the NFL's "Policy on Anabolic Steroids and Related Substances," which lists as a banned substances the diuretic "Bumetanide". Steroid Policy, at p. 16.

Each of the players suspended - McAllister, Smith, and Grant from the Saints, and Kevin Williams and Pat Williams from the Vikings - had taken a nutritional supplement called "Starcaps". StarCaps contained bumetanide, but it was not listed as an ingredient on the label. (The manufacturer later issued a recall for this reason.)

The lawsuit alleges:

Indeed, one of the Players, Deuce McAllister, only commenced using StarCaps after the NFL Supplement Hotline advised him that StarCaps did not contain any prohibited substances. 11/18/08 Hearing Tr. at 200-02. Two of the other Players, Will Smith and Charles Grant, only began using StarCaps after Mr. McAllister informed them of the advice he received from the Hotline. Id.

Memorandum in Support of Plaintiff/Petitioner's Motion for a Preliminary Injunction, at pp. 24-25 (emphasis in original).

This is relevant because the NFL Steriod Policy (on page 6) states:

E. Unknowing Administration of Prohibited Substances

Players are responsible for what is in their bodies, and a positive test result will not be excused because a player was unaware that he was taking a Prohibited Substance. If you have questions or concerns about a particular dietary supplement or other product, you should contact Dr. John Lombardo at (614) 442-0106. As the Independent Administrator, Dr. Lombardo is authorized to respond to players’ questions regarding specific supplements. You may also contact the NFL/NFLPA Supplement Hotline at (866) NFL-SUPP or NFLSupp@DrugFreeSport.com. Having your Club's medical or training staff approve a supplement will not excuse a positive test result.

The lawsuit goes on to allege:

Dr. John Lombardo, the Independent Administrator of the Policy appointed by the NFL and charged with overseeing all aspects of the Policy, including communications with players, expressly knew and willfully withheld the critical information that StarCaps secretly contained the banned diuretic substance. If this were not bad enough, Adolpho Birch, the NFL's Vice President of Law and Labor Policy who is charged with overseeing the Policy on behalf of the NFL and NFLMC, also expressly knew and withheld from players and the NFLPA the critical information that StarCaps contained a prohibited substance that could jeopardize the health and career of any player who used the product.

Memorandum in Support of Plaintiff/Petitioner's Motion for a Preliminary Injunction, at p. 3. This is certainly in dispute, as the NFL responds that "the Policy encouraged ploayers to contact Dr. Lombardo if they had any questions, and the record clearly established that none of the players challenging their suspensions here had done so." Memorandum in Opposition to Plaintiff's Motion for a Preliminary Injunction, at p. 3.

The other allegation is that "the Arbitrator in these proceedings, Jeffrey Pash, the NFL's Executive Vice President and chief legal officer, was fatally biased and unqualified as an Arbitrator by the direct involvement of his officer and subordinate, Mr. Birch, in the wrongful failure to disclose what was at issue in the Arbitrations." Memorandum in Support, at p. 3.

Ultimately, the Court stated in its order granting the injunction:

The issues in this case are complex and contentious, and the parties have raised questions that deserve careful consideration. Moreover, due process requires that the Court fully and fairly review all of the submissions and the legal arguments of the parties. That consideration is not possible in the two days that remain before the players at issue are next scheduled to take the field. Thus, due process mandates the entry of an injunction preserving the status quo to allow for the Court’s review of the issues.

Later, in refusing to dissolve the injunction, the court "extend[ed] the preliminary injunction entered on December 5, 2008, until a full hearing on the parties’ claims can be held."

Primary sources:

• NFLPA's Complaint and Petition to Vacate Arbitration Awards (pdf);
• NFLPA's Motion for Preliminary Injunction (pdf);
• NFLPA's Memorandum of Law in Support of Plaintiff/Petitioner's Motion for a Preliminary Injunction (pdf);
• NFL's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction (pdf);
• the Court's Order granting the issuance of a preliminary injunction (pdf);
• the Court's Memorandum and Order preserving the preliminary injunction (pdf);
• the Court's docket as of 12-11 (pdf).
  
  Posted by MBC at December 14, 2008 01:34 PM