Monday, May 25, 2009

State Claims Offer No Shield for Williamses

On Friday, Federal District Court Judge Paul Magnuson ruled against Minnesota Vikings' defensive linemen Kevin and Pat Williams' federal claims regarding their suspensions for violating the NFL's banned-substance policy. Judge Magnuson nevertheless remanded two state claims to court for determination. Whether the Vikings' players' four-game, league suspensions are upheld thus now turns on those two state claims.

At the center of the Williamses' two state claims are Minnesota Statute Section 181.953 subd. 10 and Minnesota Statute 181.938.

Minn. Stat. Section 181.953 pertains to punishment for a positive drug test of employees working in the State of Minnesota. The policy is writ large to cover any employee working in Minnesota, including independent contractors who otherwise would be considered self-employed, but excluding certain federal government employees. In short, the Minnesota statute appears to cover Minnesota Vikings' players.

The Williamses have argued that the NFL's banned-substance policy violates Minn. Stat. Section 181.953 subd. 10, which expressly limits the conditions under which discipline may be meted out to those in violation of such a policy and further have argued that under Minn. Stat. Section 181.955, derogations from Section 181.953 subd. 10 are permissible only to the extent that they afford equal or greater protection to employees.

The problem with the Williamses' contention regarding Minn. Stat. 181.953 subd. 10, is that they have failed properly to read the statute. Minn. Stat. 181.953 subd. 10 has two critical components. The first, found in paragraph (a), states that "[a]n employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test." The second, found in paragraph (b), states that "[i]n addition to the limitation under paragraph (a), an employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test requested by the employer unless the following conditions have been met," and continues to set forth conditions not met in the case of the Vikings' players.

As with most laws, of course, the devil is in the details. The Williamses make no claim in this case that the NFL failed to follow proper lab procedures in testing and confirming their initial test identifying a banned substance in the players' systems. That means that subd. 10 (a) is not in play in this case, leaving the players to search for a defense under subd. 10 (b). Unfortunately for the Williamses, subd. 10 (b) covers discharge, not suspension. And that means that the Williamses suspension cannot be overturned under Minn. Stat. 181.953 subd. 10.

The Williamses second state claim, relying on Minn. Stat. 181.938 which prohibits "discipline . . . [of] an employee because the employee . . . engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours," is nearly as problematic.

There are many subtle problems with the Williams' reliance on Minn. Stat. 181.938 as a defense against their league suspensions, but there is also a gaping hole in the argument that arises in the Exceptions section of the statute. Under Minn. Stat. 181.938 subd. 3, it is not a violation of Minn. Stat. 181.938 for employers to restrict the use of otherwise legal substances if the restriction "relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees."

The language of Minn. Stat. 181.938 subd. 3, clearly encompasses collective bargaining agreements, thus making the Williams' second state claim, like their first, seemingly untenable.

The likely end result, contrary to reports found virtually everywhere else on the web, is that even a fan-friendly Minnesota court will find it difficult to do other than uphold the Williamses' suspensions.

Up Next: More Like Moss or Rice?

Saturday, May 23, 2009

Fate of Vikings' Defensive Linemen All But Sealed

In a reversal of sentiment offered in his scathing order upholding a state court's temporary restraining order and granting the NFLPA and five NFL players, including Minnesota Vikings Kevin and Pat Williams, a temporary injunction against a league-imposed, four-game suspension, Federal District Court Judge Paul Magnuson all but ended any hope that the Williamses might have had to stave off their suspensions for use of a banned substance, bumentanide.

Judge Magnuson's order, delivered the day before the Memorial weekend, remands the case to state court for review of two state-related claims over which the federal court does not have jurisdiction. Those claims, however, were long-shot arguments for the Williamses, at best, and, as Judge Magnuson suggested in his opinion, unlikely to provide the Williamses with the shelter that they seek from the looming NFL suspensions.

While Judge Magnuson dedicated a considerable amount of his opinion chastising the NFL for not being forthright in providing evidentiary material in the case and for failing directly to disseminate to the players information that it had showing that StarCaps contained a banned substance, he nevertheless held, after additional digging by the Court, that the league's arbitrator was not the partial observer that he previously considered him to be. Specifically, Judge Magnuson stated that "[i]n the Order granting the preliminary injunction, the Court determined that the players had established a substantial question as to [the NFL arbiter's] partiality. . . . Further discovery has established that" the NFL's arbiter was not partial. That's a fairly unusual admission by a federal judge and one that clearly spells doom for the Williamses.

The case now will revert to the Minnesota court which will decide the two state issues. Given the state claims--one arguing that the NFL's test of the Williamses violates Minnesota drug-testing laws, the other that it violates Minnesota law against punishing use of a lawful substance while not at work--there is virtually no chance that the Williamses will not be lost for four games at the start of the 2009 season.

Up Next: Judge Magnuson Rips the NFL. Plus, state claims.

Thursday, May 14, 2009

Judge Magnuson's Pre-Motion Statements Hint at Williamses Avoiding Suspension

On Thursday morning, U.S. District Court Judge Paul Magnuson entertained oral arguments by both the NFLPA and the NFL on their submissions of motions for summary judgment in the case involving Pat and Kevin Williams' violation of the NFL's drug policy. Judge Magnuson will have the option of granting one of the two motions or dismissing the motions and proceeding with the case. While the sentiment among the Minnesota Vikings' fan base predominantly has been one of resignation that the Williamses ultimately will face a four-game suspension, Judge Magnuson's pre-motion statements suggest a quite opposite outcome.

The NFL's position on the Williams' matter is clear and lacking any real subtleties. The NFL contends simply that the Williamses took a banned substance and that, therefore, under the terms of the league's collective bargaining agreement (CBA) with the NFLPA, the Williamses are subject to punishment consistent with the CBA's terms. The CBA essentially gives carte blanche to the NFL Commissioner to mete out penalties and suspensions for players found to be in violation of the league's drug policy and Commissioner Roger Goodell subsequently imposed a four-game suspension for the Williamses.

In their filing of a court appeal to their suspensions, the Williamses contended that the league's drug policy is inequitably and improperly applied both generally and in their case. Among other general contentions, the Williamses noted that the league's hotline is not properly staffed and does not provide the feedback on inquiries that is required under the CBA and that the league's policy of indirectly informing players of certain banned substances--rather than conveying the message directly--has created a gap between policy and enactment of that policy.

More specifically, the Williamses have contended that, despite having tested StarCaps, the product at the heart of the current legal battle, and having discovered in the product a substance banned by the NFL, the NFL not only failed but refused to divulge the discovery to players. The NFL does not refute this claim, arguing that the league is under no obligation to inform players of the contents of any product as, under the CBA, the players are responsible for knowing the contents of any substance that they ingest or apply.

The Williamses did not contend that the NFL has a duty to test all market products that players might ingest, but argued, instead, that, where the NFL has tested a product and has found the product to contain a substance banned under the league's drug policy but which is not noted on the product's label, the league has an obligation to inform players of its findings.

That NFL's suspension currently is stayed, pending the outcome of the case in Judge Magnuson's court. And if Judge Magnuson's Memorandum and Order of December 11, 2008, a document that extended a preliminary injunction on the suspensions and allowed Judge Magnuson time to consider the testimony and briefs of the NFL and the NFLPA, is any indication, the Williamses just might elude Goodell's clutches.

In his Memorandum, Judge Magnuson made clear his leanings, suggesting not only that the NFLPA's position merited the granting of an extended injunction on the league's suspensions of the Williamses, but also that "the balance of the equities strongly favors the NFLPA." Judge Magnuson noted, in particular, his concern that the officer who heard the Williamses appeal, NFL legal counsel Jeffrey Pash, was not the impartial arbiter that he was required to be under the NFLPA. "It is plain that the involvement of Mr. Pash's office," Judge Magnuson wrote, "rendered Mr. Pash a partial arbiter." That, Judge Magnuson noted, was, alone, ground for setting aside the suspensions.

Judge Magnuson appeared particularly disturbed by Pash's refusal to take into account at the appeal whether the players were properly notified of the StarCaps issue and his dismissal of the players' contention that they were unable to obtain a response from the league when they called with specific questions about StarCaps. "The NFL maintains that its strict liability policy is fair in part because players may contact either [Dr.] Lombardo (the independent administrator of the league's drug policy) or the Hotline with questions about specific supplements. If players cannot get answers to their specific questions, however, they cannot determine which supplements are permissible and which are not. While it is true that the NFL discourages use of all weight-loss supplements, such supplements are not forbidden and the players reasonably expect to rely on the advice of Lombardo and the Hotline with respect to such substances. Mr. Pash's failure to take Lombardo's testimony into account is substantial evidence that the arbitration award was prejudiced by Mr. Pash's partiality."

Though Pash's impartiality might be grounds for setting aside the Williams' suspension, there remains the issue of what the next step ought to be. One option would be to order a new arbitral appeal for the Williamses. But that assumes that Judge Magnuson finds that the league's policy is equitable on its face and as applied. And, given his criticism of the NFL's poorly functioning Hotline and information system regarding banned substances, there is reason to suspect that Judge Magnuson will find that the NFL must bolster its end of its commitment to the league's drug policy under the terms of the CBA before it may hold accountable players who ran afoul of the league's policy despite efforts to the contrary. And that would mean no suspension of any sort for the Williamses.

Up Next: The Ruling. Plus, chicken and eggs.

Wednesday, May 13, 2009

Recent Developments Suggest Vikings Remain Likely to Sign Favre

Last week, following the news that quarterback Brett Favre either had or had not rebuffed the Vikings' overtures and subsequent news that the Vikings were awaiting the results of an MRI on Favre's injured arm to determine whether to sign the former Green Bay Packer, two more bits of information circulated the newswires suggesting that the Vikings still have every intention of signing Favre to be the team's starting quarterback in 2009.

The first piece of news came courtesy of Vikings' co-owner Mark Wilf. Responding to questions about Favre in the wake of a news report that Favre planned to remain retired rather than sign with the Vikings, Wilf stated that the Vikings remained very interested in Favre and continued to look into their options.

While Wilf's statements alone do not increase the possibility of the Vikings signing Favre, they represent yet another indicium of the Vikings' plans. There is little question but that Wilf would not have made such a provocative statement were he not reasonably confident that the Vikings ultimately will sign Favre. Having already been through the ups and downs of the Favre saga last year and this year, just prior to making his statements, Wilf, who rarely makes public statements on the team, leaving those remarks to his brother Zygi, would not have gone out of his way to stir the cauldron that is the Vikings' prospective season-ticket base in a year in which sell-outs for home games are not yet guaranteed. No sensible owner would provoke an already wounded fan base given the risk to the bottom line of not producing. And, with limited exception pertaining to one or two team caretakers, the Wilfs, if nothing else, have proven to be sensible.

Public statements of team ownership notwithstanding, other developments suggest that Wilf is speaking from at least a position of high interest. Shortly after Wilf's statements last week, the agent for Antoine Winfield announced that he and the Vikings had reached an impasse on an extension for the cornerback.

Although Winfied turns 32 this year and has had a recent history of discrete injuries, he remains the Vikings' top cornerback and, given the performances of other similarly talented cornerbacks at a similar age, a likely candidate to re-sign with the Vikings. The question, of course, is when the re-signing should take place.

There are several factors that play into when to resign a player in the NFL. For the Vikings, the most significant is whether the team will have the money this year or next year. The Vikings are roughly $16-18 million under the league salary cap. That's enough to sign Favre to a one- or two-year deal and to still forward the cap hit to 2009. But that would leave no room for the $8 million or so in guaranteed money for Winfield, should the Vikings extend him and prefer, as has been the teams penchant under Zygi Wilf, to bring cap hits forward rather than to prorate them.

If Favre does not sign with the Vikings, the Vikings very probably will re-sign Winfield and possibly even Chester Taylor near the start of the 2009 season at terms that eat up all but one or two million in cap space for 2009, leaving 2010 yet another year of generous cap space.

While some Vikings' fans are lamenting the Vikings' slow pace at re-signing Winfield, particularly in the wake of the team's re-signing of Cedric Griffin, there thus is a logical and prudent rationale for the team's determination to suspend negotiations on a deal. And, coupled with Mark Wilf's comments on the team's continuing interest in signing Favre, the strong implication is that the Vikings still believe that the odds are good that the team will cut a deal with Favre.

Up Next: More Free Agents?

Thursday, May 07, 2009

Favre Rebuffs Vikings?

In somewhat of a surprising turn of events--if ever there could be such a thing involving Brett Favre's off-season pronouncements, the former Green Bay quarterback reportedly has informed Minnesota Vikings' head coach Brad Childress that he is opting to remain retired. While there is little more to the story, the story appears to have originated on Yahoo! sports.

If accurate, and assuming no change in Favre's position, Favre's rebuff of the Vikings' overtures would be another difficult pill for the Vikings to swallow after having courted Favre through much of last off-season only to see the quarterback traded to the Jets. Having essentially admitted their need for an upgrade at quarterback through their pursuit of Favre this off-season, the second attempt could prove not only more difficult to accept, but also more divisive than last year's.

For Vikings' fans irrationally wedded to the notion that Favre does not belong in a Viking uniform by virtue of his service with the Packers, there is yet another reason to dislike the future Hall of Famer.

Wednesday, May 06, 2009

Vikings' Offer Favre's for the Taking

Minnesota Vikings' head coach Brad Childress will meet with former Falcon, Packer, and Jet quarterback Brett Favre tonight to discuss the two sides' interest in Favre manning the quarterback position for the Minnesota Vikings this year. While Childress undoubtedly is concerned about the progress that Favre has made rehabilitating an injured bicep on his throwing arm, the real question probably will be whether Favre feels sufficiently comfortable working under Childress to relent to the Vikings' on-going overtures.

That the Vikings are set to sign Favre is clear not only from Childress' approaching meeting with the quarterback, but also from internal actions that the Vikings' organization has undertaken. Beginning in Childress' first year with the team, the Vikings have worked to identify public sentiment regarding the team in the organization's attempt to clarify its bargaining position in negotiating for a new stadium. Consistently cited in the polls as among the organization's weaknesses have been the head coach and the quarterback.

For the past three years, the Vikings have worked diligently to improve the image of a head coach who came to town stating that he "chose the team" rather than the team choosing him. That work has helped remake Childress' image in public--as a Christmastime storyteller and as a mildly more open, coherently speaking, weekly in-season guest on KFAN. It has not, however, paid significant dividends in reversing the public's assessment of Childress as a coach as his numbers continue to identify him as the Vikings' single greatest impediment to winning the Super Bowl.

Continuing to view enthusiastic public sentiment as a priority for achieving not only a new stadium deal but a stadium deal highly favorable to the organization, the Vikings, led by owner Zygi Wilf, have committed to signing what most believe to be an essential element to any realistic chance for the Vikings' to contend for a Super Bowl in 2009, a veteran, quality quarterback. While Player Personnel Executive Rick Spielman saw that player in Sage Rosenfels, Zygi has opted for Favre and has encouraged Childress to view the signing of Favre in the best light possible--no matter what that means for Tarvaris Jackson and Childress' legacy as a quarterback mentor.

Given the need not only to bolster but to rally the fan base, Zygi has little choice but to add Favre. That likely means a payout approaching $10 million in guaranteed money for one year of Favre's services and $16 million for two years--money that the Vikings still can afford, all in year one if they so chose.

The move also likely will result in the end of Jackson's Minnesota career. With Rosenfels the "rising" veteran and J.D. Booty the rookie in the wings, Jackson, who has one year remaining on his rookie contract, presumably would have little, if any, remaining opportunity in Minnesota to prove his NFL mettle; with the Vikings unlikely to keep four quarterbacks on the final roster, and loathe to lose yet another young quarterback with purported promise, Jackson would be the obvious man out.

Finally, signing Favre would offer the organization a gauge for determining whether to extend or release Childress at the end of the 2009 season. In the fourth year of a five-year deal, Childress would have a nearly complete team--with questions only along the offensive line (questions largely of his creation)--and would have no clear excuses for not leading his team to the Super Bowl. If the Vikings cannot succeed with Favre, Zygi will have no choice but to begin a search for a new head coach. Childress understands the conundrum, but his previous personnel decisions have left him with no option but to champion the signing of Favre and to accept all of the potential warts that such a signing entails.

Up Next: Is the NFL Investigating More Tampering Charges Between Favre and the Vikings?

Tuesday, May 05, 2009

Favre and Vikings Colluding

After one season in New York and a strained-bicep induced statement that he was retiring, Brett Favre found himself among the early cuts during post-season roster clearings. Convinced either that Favre's late-season tailspin or his commitment to retire reflected what was left in Favre's professional football career, the Jets released Favre without much plan for a backup--or a starter.

One year removed from the NFL's quiet investigation into tampering allegations leveled against Favre and the Minnesota Vikings by the Green Bay Packers, the Vikings and Favre again appear to be talking about bringing the former Packer and Jet quarterback to Minnesota to help sell tickets, spur the team's anemic offense, and salvage the career of head coach Brad Childress.

As was true last year is also true this year. Despite the addition of Sage Rosenfels to the team, Favre still would be an upgrade at the quarterback position in Minnesota. Over 32 career games spanning seven NFL seasons, Rosenfels has 30 touchdown passes and 29 interceptions. In 16 games for the Jets last season, Favre threw 22 touchdown passes and 22 interceptions.

The question in Minnesota is not whether Favre can replicate his 2008 numbers. There is little question that, even with Childress and offensive coordinator Darrell Bevell playing hide the ball, Favre can toss 22 and 22 against the Vikings' relatively soft schedule.

Instead, the question is whether Favre can improve on his touchdown passes while reducing his interceptions. If not, signing Favre will become little more than a publicity stunt for the Vikings and one that allows yet another season to pass without confirmation on whether Tarvaris Jackson is meant for the NFL. With Rosenfels the likely starter were Favre not in the picture, Jackson's already cloudy future seemed precarious at best. With Favre and Rosenfels, Jackson would be thrust into clipboard competition with current third-stringer J.D. Booty. That's neither good nor bad for Minnesota, but, instead, a consideration that the team must take into account when negotiating with Favre.

There is also the nagging issue of the lack of experience on the right side of the offensive line and what that would mean for an aging quarterback already prone to the interception. Without assurances that their new center and right tackle will be able to play in the NFL, the task of any Viking quarterback will be far more daunting in 2009 than it was in 2008.

The answer, it would seem, would be for the Vikings not only to bring in Favre, but also to bring in more game-tested veterans at center and right guard or tackle. If that's possible, Favre ought to thrive in Minnesota despite the inert limitations of the Vikings' offense. If it is not possible, 2009 with Favre might be more terrifying than 2008 with whomever. And that could be the epitaph of the Childress era.

Up Next: Options and Concerns.