Should Congress weigh in on Viking players' drug challenge of sports' collective bargaining rules?

WASHINGTON, D.C. — Should Congress take action to protect collective bargaining agreements in professional sports from state law challenges, like the one that prevented the NFL from suspending the Minnesota Vikings’ defensive tackles Pat Williams and Kevin Williams after they tested positive for banned substances?

The chairman the House Energy and Commerce Committee indicated today that he thinks so, siding with National Football League Commissioner Roger Goodell.

 “The federal district court in Minnesota has ruled — and been upheld by the Court of Appeals — that the state laws governing workplace drug testing may trump the collectively bargained agreements of the NFL, Major League Baseball, and other sports leagues,” Rep. Henry Waxman, D-Calif., said today in prepared testimony at a hearing of the Commerce, Trade, and Consumer Protection Subcommittee.  “This is a serious problem because some state laws undermine the stringent sanctions established by the sports leagues and their players associations.”

Waxman added that if the Williamses ultimately won on the grounds that Minnesota state law supersedes their collective bargaining agreements, the rulings “could wreak havoc with policies to curb performance-enhancing drug use in professional sports.”

Unequal treatment?
“In fact,” Waxman said. “If the rulings were taken to their logical conclusion, players on one team could be allowed to use drugs that would subject players on another team to suspensions and fines.”

The so-called StarCaps case involved the Williamses and three players from the New Orleans Saints who had taken StarCaps — an over-the counter diuretic that contains the banned substance bumetanide, which is considered a steroid masking agent.

The National Football League moved to suspend the players under its collective bargaining agreement with the players’ union. The Williamses, however, argued that the proposed suspensions violated their rights under Minnesota’s workplace drug laws.

The National Football League countered that state law should be pre-empted by the collective bargaining agreement, which stipulates that a player caught with banned substances in his system will be suspended for a certain number of games.

In September, however, the 8th U.S. Circuit Court of Appeals —considered one of the most conservative federal appeals courts in the country — ruled in favor of the Williamses, concluding that they could challenge their suspensions under state law.

Goodell: Piecemeal system undermines drug policy
In testimony today before the subcommittee, the NFL’s Goodell argued that the ability to challenge bargaining agreements through state laws could lead to a piecemeal system that would undercut the league’s ability to stop performance-enhancing drug use among its players.

“Because the Minnesota players have been able to allege violations of Minnesota statutes while Louisiana does not have comparable statutes under which the Saints players could sue, the three players from the Saints are subject to suspension, while the Vikings players —who admittedly engaged in precisely the same conduct in violation of the Policy — have been permitted to avoid discipline,”

Goodell said in prepared testimony. “The Vikings players are thus able to work under terms and conditions that differ from those governing every NFL player outside Minnesota.”

He testified “that a specific and tailored amendment to the Labor Management Relations Act” was “appropriate and necessary to protect collectively-bargained steroid policies from attack under state law.”

Robert D. Manfred Jr., executive vice president of Major League Baseball, agreed.

“Uniformity of enforcement is an essential element of any drug testing program in the context of professional sports,” Manfred said in prepared testimony. “The essence of sport is fair competition. The use of performance-enhancing drugs undermines fair competition. In a nation-wide sport such as professional baseball, athletes must be held to a single standard of clean competition.”

Football, baseball player reps disagree
But, DeMaurice Smith, executive director of the National Football League Players Association, and Michael Weiner, general counsel for the Major League Baseball Players Association, countered that congressional action was not the needed remedy.

Smith said that although he thinks some policy changes might be needed, he believes they could be worked out through collective bargaining.

“Nothing we have seen — in this litigation, or in Minnesota law, or elsewhere — suggests that Congress needs to take such extraordinary action,” Weiner added.

In prepared testimony, Weiner said that such action by Congress could lead to “the unusual proposition that parties to a collective bargaining agreement can contract for that which is illegal under state law.”

During additional testimony before the committee, Gabriel A. Feldman, associate professor of law at Tulane University and the director for the Tulane sports law program, laid out a more detailed argument against congressional action.

“It is important to emphasize that the Eighth Circuit did not hold that the NFL [Performance Enhancing Drug] Policy violates Minnesota law,” he said in prepared testimony. “Instead, the court only held that the Williamses may challenge their suspensions in Minnesota state court under state law.”

Thus, Feldman concluded that it was only a “potential” problem. And even if the court did ultimately rule in favor of the Williamses, it was still a “narrow” problem because only three states, including Minnesota, currently have drug-testing laws that might conflict with the NFL policy.

“This narrow potential problem warrants a very narrow solution, and many steps should be taken before Congress intervenes,” said Feldman. “The most appropriate — and simple — solution is for the NFL to litigate the case in state court and convince the court that the Minnesota Laws were not intended to apply to the NFL [Performance Enhancing Drug] Policy and that suspensions do not violate the Minnesota Laws. If that suit is unsuccessful, the NFL should seek an exemption from the state Legislature that makes it clear that the Minnesota Laws do not apply … If that fails, the NFL and the players association should try to bargain around the Minnesota Laws. If that fails, then, only as a last resort, Congress should consider passing a narrow federal law that will protect” the NFL policy.

Goodell retorted that if a national law was not enacted, then other states could ultimately change their laws to conflict with NFL policy. Feldman, however, stated that there was little chance of that happening.

In the end, subcommittee chairman Bobby Rush of Illinois seemed to side with Feldman.

Rush said that he would be keeping a “wary eye” on the Williamses’ case, but warned that “you can’t tell what members of Congress might ultimately do once you open up Pandora’s Box.”

“I would just ask that you all try to work this thing out,” Rush told the gathered panel.

Cynthia Dizikes covers Minnesota's congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.