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.

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