Tuesday, December 02, 2008

UnClean Hands Versus Assumption of Obligation Versus Lack of Jurisdiction

On Tuesday evening, the NFL Commissioner's Office announced that the NFL will be upholding the four-game suspensions that it had earlier handed down to Minnesota Vikings' defensive tackles Pat and Kevin Williams for use of a diuretic containing a substance banned by the NFL. The suspensions, set to begin with Sunday's game against the hapless Detroit Lions, would leave the Vikings thin at a position otherwise considered one of the team's strengths.

Already, Kevin Williams' agent has announced that Kevin will be filing an appeal in U.S. District Court. Presumably, Pat Williams will file an appeal as well.

Neither the grounds nor the jurisdiction of an outside court to hear an appeal are clear at this point. Because both Vikings' players were suspended under the NFL's collective bargaining agreement with the NFL Players' Union, it is arguable that the District Court does not have jurisdiction over the matter and that, should the players have a dispute with the decision, they would have only the NFL to which they could appeal. Given that the players already have exhausted their appeals under the collective bargaining agreement, however, they might well be stuck with the league's determination and be forced to sit out four games.

Should the players gain a hearing in federal court, they likely will be forced to argue against two separate charges--only one of which resulted in their initial penalty, that of using a banned substance. The second charge is that both players used a diuretic in direct contradiction of the collective bargaining agreement which disallows use of a diuretic for the purpose of meeting weight-based incentives.

Because the NFL's policy is one of strict liability, whether the players intended to use banned substances is not germane; all that matters is whether the players used banned substances. The case, thus, will hinge on whether the players used "banned substances," if it any longer hinges on anything at all.

The best argument that the players appear to have at their avail--and one that they presumably already have made at league offices--is that they received information on the specific diuretic that they were taking that contradicts the information that the NFL is now claiming to have sent to the NFLPA and each team in December of 2006. The players ought also to argue that they were not taking diuretics to meet weight-based incentives in their contracts but for some other reason, such as to regulate their weight on a year-round basis to promote overall good health--though it's difficult to imagine that any rational arbiter would conclude that the diuretics were used for any other reason than to meet weight-based incentives in the players' contracts.

The league appears to have a solid case against the Vikings' defensive tackles. The Williamses do not deny taking the diuretic; the league has a strict liability policy; and the Williams' best argument appears to be lack of a proper warning--an argument that flies in the face of strict liability.

Only one door appears to be open to the players for appeal. That door is the one opened by the league by its somewhat curious statement regarding its own policy.

In a press release, the league dismissed the Williams' chief point of appeal--that they did not receive adequate notice of the banned substance--on the ground of strict liability. The league went on to say, however, that, although neither the league nor the NFLPA ever even contemplated that it would be the duty of the league to tell players what products they could not use, leaving that for the players to determine based on the product's ingredients and the list of banned products kept and distributed to the players by the league, the league, nevertheless, sent out two memos regarding products produced and sold by the same company that made the Starcaps diuretic that the Williamses reportedly used.

While it is admirable for the NFL to go above and beyond its commitment under the collective bargaining agreement to keep players informed on products that run afoul of the league's banned substances list, it is also rather foolish from a legal perspective. For, by sending this information, the league arguably has assumed a duty to send a complete and accurate list. And if the Starcaps brand that the Williamses used was not strictly prohibited, the Williamses at least have an opening to argue that it ought to have been to justify the punishment that the league rendered for their use of the product.

The Williams' best argument is, thus, that the league assumed a duty that it failed to meet when it failed to notify them about a substance that the league knew or had reason to know ran afoul of the league's banned substances list.

The league has already established a counter to this charge by suggesting unclean hands on the part of the Williamses for using a diuretic to meet weight-based contract incentives.

It is likely that only a highly sympathetic judge would grant review of the case as the matter involved appears to fall clearly and fully within the purview of the NFL. Even if the court agrees to hear the case, however, the best that the Williamses likely can hope for is a slow process, rather than the expedited process that the NFL is likely to request if it fails to have the case dismissed. And that might mean that the two tackles are unavailable if and when the Vikings make the playoffs rather than in the period in which the Vikings need them to make the playoffs.

In short, Vikings' fans probably ought to warm to the prospect of trying to make the playoffs without the services of either Pat or Kevin Williams. And warm to the notion that the suspensions could buy head coach Brad Childress another year should the team fail to make the playoffs this season.

Up Next: Misdirection.

13 comments:

Cabrito said...

I'm not sure your use of the verb form "warm to" is appropriate in the last paragraph, VG. "Warm to" means something like "begin to look with affection upon" or, somewhat more weakly, "begin to look favorably on." I could scarcely look favorably on either of the outcomes you mention, especially the second.

Finchy said...

VG, your last paragraph touches on what concerns me the most about this: The Williams' suspension being an extremely good excuse for Wilf to not judge Childress too harshly on the outcome of the last four games of the season.

That being said, I agree with you that the likelihood of our two tackles managing to legally maneuver their way onto the field for the next four Sundays is very, very low. The question this whole thing raises (for me at least) is who is truly being served by the league's implementation of their banned substance policy? It seems poorly organized, confusing to the players and in this particular case, a serious black eye for the league now that it's come to light that the league knew Starcaps contained beumetanide and did not disclose this information to the players. If this was a cut and dried case of a player taking a banned substance, I suspect the majority of fans would be disappointed in losing the Williams', but there would be very little (if any) anger directed towards the league. In this case however, there's a considerable amount of justified (imho) outrage towards the league offices.

If I was a cynic I'd say that the policy is merely in place to satisfy people in Washington as it clearly does not seem to be serving the league, its players or its fans.

*sigh* I'll probably regret saying this as it is not my intent to start a flame war on an excellent blog, but Cabrito, can we cool it with the grammar critiques? VG writes considerably more elegant prose than any of the sports writers employed by the two major rags in this town and that's sans an editor. I'm going to go out on a limb and guess that this blog is not VG's main profession and he may not have time to go through every post with Merriam-Webster on his lap.

Finchy said...

One other item I neglected to mention: Where is the player's union in all of this? Are things so disorganized without Upshaw that nobody in the union leadership is willing to stand up for the players?

vikes geek said...

Finchy,

I appreciate the defense and, while all you say is true, I am not necessarily bothered by Cabrito's suggestions. Cabrito generally offers constructive criticism.

In this case, however, I will stand by the prose. Vikings' fans have two options regarding this situation, they can either reject it or deal with it. "Warming" is a matter of degree. And, if you are beginning where most Vikings' fans are--namely, irritated with this decision or the Williams' actions, or both--you probably only have one way to go on the sentiment meter, and that would be towards the "warm" end.

VG

vikes geek said...

Finchy,

Regarding your comment on the Williamses, I agree that the NFL could have been more vigilant in alerting players about Starcaps--but only to a degree.

The contention touches on two related issues. The first is that the league sent two memos regarding Starcaps to the NFLPA and to each team in December of 2006. That should have sufficed to put every player on notice not to use Starcaps (the players are now contending that, though they saw the memos, they interpreted the memos to mean that they should not endorse Starcaps--a seemingly ludicrous interpretation, but who knows how a sympathetic judge might view the argument in the context of fairness and reasonable measures).

The second tangential issue is that the NFL has attempted to abide by the strict liability language of the collective bargaining agreement by not be overly specific. This is a tremendously significant issue with respect to the Williams' appeals as it appears to be the factor that could lead to a judge granting an appeal. By suggesting ambiguity in its strict liability standard, the league is buttressing the players' primary ground for appeal. That might not suffice to overturn the league's ruling, but it could be enough to gain an injunction and possibly to gain at least a roll-back of some portions of the league's ruling.

VG

vikes geek said...

As for the NFLPA, it is where it has always been--in the back pocket of the league. On the drug issue, however, they are, I believe, where they ought to be. It's interesting to note that, although diuretics are not per se banned under the collective bargaining agreement they are not permitted to the extent that they either contain banned substances or are used to cut weight to meet weight-based contract clauses.

Where I would take issue with the NFLPA's acquiescence is with permissible penalties. The games are one thing, the loss of pay--including a pro-rated portion of signing bonuses--seems excessive.

VG

Cabrito said...

Finchy, I agree with you that VG writes very good prose. I appreciate his blogs because he deals with topical issues in a thoughtful, informed, and intelligent way, more so than the local sportswriters. I offer my "critiques" omly when I find errors or solecisms that detract from his communicative intent. Frankly, I would prefer it if he would delete my suggestions from the blog comments list, as he has the power to do, since they are of no interest to other bloggers. And you're right, no need for a flame war. I appreciate your observation, and will keep it in mind.

Cabrito said...

VG, can you tell us anything about Letroy Guion, the defensive tackle that the Vikings drafted in the fifth round last year? Why aren't they considering using him to help fill the impending gap at DT? Is he injured, or just not good enough? Just wondering -- this seems like a good time for the Vikings to give him a chance to show what he can do.

DC said...

Guion injured his ankle last week and is iffy for Sunday's game.

Most of the stuff I read about him after he was drafted by the Vikings expressed surprise that he even entered the draft after his junior season. He didn't play much at Florida State and didn't accomplish much even when he played.

During preseason he didn't do anything that stood out. I thought Leger Douzable did more – although I'll admit the subtleties of good line pay are beyond my football knowledge.

Finchy said...

"On the drug issue, however, they are, I believe, where they ought to be."

It's not often that I disagree with you, VG but we're definitely in opposition on that point. The NFLPA has given the league carte blanche in terms of determining guilt and the severity of punishment when dealing with substance offenders.

The NFL is essentially both the attorney for the prosecution and the judge at the same time with no check whatsoever.

Could you elaborate on your statement?

vikes geek said...

Finchy,

I think you are reading too much into my statement. What I meant is that I have no problem with a rule of strict liability--other than the fact that the NFL appears unable to enforce such a policy.

I agree, however, that the Commissioner ought to have less discretion in meting out punishment. That is something, however, for which the NFLPA should have done a better job bargaining. There is an argument, after all, that players' salaries are made possible by the NFL's ability to maintain its image and fine those who do not abide by the collective bargaining agreement's code of conduct.

VG

vikes geek said...

Cabrito,

As I said, I take no offense to your grammar tips, particularly since they usually are accompanied by substantive comments.

I do not delete the messages because they are appropriate and I do not want to give anyone the impression that I censor the comments. My censorship, in the rare instance that I offer it, comes in the form of a very clearly stated comment, not a deleted comment (barring something completely inappropriate or spam).

VG

vikes geek said...

Finchy,

It is important to note that when this collective bargaining agreement was drafted, both the league and the NFLPA considered controlling use of banned substances a paramount and mutual interest. That interest is reflected in the tough language of the covenant. I have no problem with a four-game suspension. What is onerous from my perspective is the inclusion of bonuses on a pro-rated basis in the per game assessment of a fine. That drives the message home, but it also gives the league considerable latitude to reap some cash where it sees the opportunity--it's too tempting to consider it just across the board.

VG