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.