This Fall, the NFL petitioned the U.S. Court of Appeals for the Eighth Circuit requesting a full bench hearing on its appeal of a U.S. District Court decision finding that Minnesota labor and employment laws pertaining to drug testing govern the NFL's case against Minnesota Vikings' defensive tackles Kevin and Pat Williams.
What the NFL sought, and the Eighth Circuit rejected, was a finding of federal preemption for drug-testing procedures derived through collective bargaining agreements in national businesses such as the NFL. The issue is highly significant to the NFL, because, even if it wins its case against the Williamses in the Minnesota court next Spring, the Eighth Circuit has now established precedent for every other NFL player accused by the league of violating the NFL's drug-testing policy to challenge the league's ruling in state court.
Not only are most state courts far friendlier toward employees than the federal courts serving the relevant state, but, given the nature of the NFL--where players play and live and where the league operates--it is quite conceivable that players will be afforded ample opportunity to forum shop, picking a state with which they have a sufficient connection, and that has lenient drug-testing laws, in which to file their appeal of the league's attempted suspension of them.
Even if the NFL is able to control forum shopping, they have little to no chance of halting what is certain to be a constant theme of sympathetic state court judges finding in favor of the local team's star player(s)--a symptom particularly likely in states, like Minnesota, where state court judges stand for re-election.
The NFL is not yet out of options, as they still could elect to appeal the Eighth Circuit's ruling to the U.S. Supreme Court. Given the involvement of a CBA covering a league comprised mostly of players with limited ties to the states in which they play and the close rulings that the current Supreme Court has had on commerce cases, there is a glimmer of hope, yet, for the NFL. But that glimmer is faint.
Ultimately, the NFL is only moderately interested in the disposition of the Williamses' case for the sake of the Williamses, and far more concerned about the outcome of the case given what it will mean for the NFL as the overseer of a cogent and uniform drug policy for each of its constituent teams. That might mean that, as much as the NFL might wish that the Williamses' case never arose, they will do whatever they can do to see every avenue of litigation through to the end. And that could mean no resolution of the case even beyond the 2010 season.
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