NFL Commish Asks Congress for Help Enforcing Drug Testing Policies

Nov. 3, 2009 — -- The commissioner of the National Football League asked Congress to amend federal labor law in order to stop state laws from interfering with the NFL's drug testing policies reached during collective bargaining.

In his second Capitol Hill visit in as many weeks, NFL Commissioner Roger Goodell testified to a House Energy and Commerce subcommittee that Williams vs. the NFL, a case pending in Minnesota state court better known as the StarCaps case, threatens to preempt the Labor Management Relations Act.

Goodell argued that NFL players should not be permitted to use state law to overturn league-imposed suspensions because it might give teams located in those states an advantage.

"Professional athletes and their collective bargaining representatives should not be permitted to manipulate state statutes as a means to gain a competitive advantage," Goodell told lawmakers. "The professional sports leagues cannot operate properly and maintain even competition on the field if players in one state are subject to rules in this area that vary from state to state."

During the 2008 season, five players -- two from the NFL's Minnesota Vikings and three from the New Orleans Saints -- tested positive for a substance called Bumetanide that is banned by the league after taking an over-the-counter weight-loss supplement called StarCaps.

Facing four-game suspensions for taking a banned substance, the Vikings players -- Pat Williams and Kevin Williams -- sued the NFL in Minnesota state court, arguing the league's testing violates Minnesota workplace laws.

The case moved to the U.S. Eighth Circuit Court, and the NFL players union filed a similar lawsuit on behalf of the Williamses and the Saints players who were also facing suspension for testing positive for the Bumetanide, which is known to mask steroids in drug testing.

In May, a federal judge dismissed the union's lawsuit and several claims in the Williamses' case, but then sent the two claims involving Minnesota workplace laws back to Minnesota state court. A judge there then issued an injunction barring the NFL from suspending the players, and scheduled a trial for next spring.

NFL Drug Tests

Last month, a federal appeals court panel agreed with those decisions, in essence allowing the Williamses to continue playing while the case proceeds in state court. The NFL asked the full federal appeals court to hear the case, arguing that federal labor law should pre-empt state law, and that uniform standards are necessary for players nationwide.

Goodell says that out of fairness he decided not to enforce the suspensions of the three Saints players until the Williams case is resolved.

DeMaurice Smith, the executive director of the NFL Players Association, defended the players' failed drug tests, explaining that StarCaps was marketed over-the counter as an all-natural supplement, and the list of ingredients did not include any banned substances.

"The players who ingested the product did not know, nor were they ever told, that StarCaps actually contained Bumetanide, an unlisted ingredient and a prescription diuretic that is prohibited under our policy," Smith testified, adding that the NFL knew that StarCaps contained Bumetanide, but that an independent administrator failed to notify the players.

Rep. Henry Waxman, D-Calif., the chairman of the House Energy and Commerce committee, warned that if the state laws prevail and trump federal law, the ensuing result would complicate enforcement of suspensions and would threaten progress on steroids in sports at all levels of competition.

"If the rulings are taken to their logical conclusions, players on one team could be allowed to use drugs that would subject players on another team to suspensions and fines," Waxman said. "These new legal interpretations could render the NFL and Major League Baseball drug testing programs unenforceable, loophole-ridden and unacceptably weak and ineffective."

Waxman said if the courts do not rule that collective bargained drug policies can stand against state laws, congressional action could be necessary.

"We should not allow the drug policies that the NFL, Major League Baseball and other sports leagues have put in place to be rendered null and void," Waxman said. "That is an invitation to steroid abuse in professional sports. And it will inevitably lead to more steroid use."

Smith said he believes best method to ensure that the collectively bargained policy does not conflict with state law is for the NFL and the players union to draft language in the new collective bargaining agreement, which is currently under negotiation.

"We are confident that we can effectively work through the collective bargaining process with the league to implement changes that will better protect our players, ensure the uniform application of the drug testing policy, and strengthen the integrity of that policy," Smith said.

Congress Hears Case of NFL Drug Use

Goodell testified that the application of state laws to professional athletes threatens to undermine the collective bargaining process.

"We support narrow and specific legislation that would confirm the primacy of federal labor law and respect agreements on this important subject," Goodell said. "We are committed to maintaining a level playing field in the NFL, protecting the health of our athletes, ensuring public confidence in the integrity of the game of professional football, setting a positive example for young people, and working together with the NFL Players Association to continue to refine our steroid policy."

Rep. Lee Terry, R-Neb., suggested that if Congress does not act to close the ambiguity, perhaps the NFL should act itself.

"Do we need to draft a national drug testing policy to be imposed on all major league professional sports?" Terry asked. "If that's necessary, let's begin to work Mr. Chairman. Otherwise, if you don't think it's necessary, maybe it's necessary that major league sports pull out of the states that claim that their state laws will supersede the collective bargaining. Maybe Minneapolis without the Vikings is the appropriate remedy."

Goodell asked the subcommittee what would happen if another Minnesota player tests positive for a banned substance, predicting that any subsequent performance enhancing drugs violations in Minnesota would be challenged in state court just like the StarCaps case.

"This is not a potential problem. This is an existing problem," Goodell said. "And all of us have to deal with this now. It cannot wait. This is a health problem now, and we believe it should be addressed now."

Rep. Bobby Rush, D-Ill., chairman of the House Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection, warned Goodell and Smith of the repercussions of congressional action.

"You don't want us to get involved with this," Rush said. "You don't know what Congress will do once you open Pandora's box."