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.