More on the Pat and Kevin Williams Suspensions and the Star Caps Saga

As you might recall, five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games last year after testing positive for bumetanide, a diuretic that can be used to mask the presence of steroids. The players claimed that they inadvertently ingested the bumetanide when they took StarCaps, an over-the-counter weight-loss supplement. Bumetanide is not listed as an ingredient in StarCaps, but the players proved that bumetanide was present in the StarCaps they consumed.

The players lost their internal appeal to the NFL, and after a series of legal maneuverings in state court, the players challenged the suspension in federal court in Minnesota. Judge Paul Magnuson granted a preliminary injunction blocking the suspensions until a full trial could be held. That trial was scheduled for June 15th in St. Paul, Minnesota. In late May, however, Judge Magnuson ruled on the parties’ summary judgment motions. Judge Magnuson rejected most of the players’ arguments on preemption grounds, but remanded the players’ state law claims so that a Minnesota state court determine whether the NFL’s drug policy violates Minnesota state law (the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA)).

Today, that Minnesota state court—Hennepin County District Judge Gary Larson— issued a temporary restraining order to prevent the NFL from suspending the WIlliamses or from subjecting them to “reasonable cause” drug testing until the completion of a trial on the merits. As I discussed here, the NFL does have a plausible argument that their policy complies with Minnesota state law. And, Judge Larson was less than enthusiastic about the chances of the Williamses winning on the merits, noting that they “face some obstacles in overcoming issues of fact to prevail on their statutory claims,” and conceding only that the Williamses had made “at least some showing as to the likelihood of prevailing on the merits.” Nevertheless, Judge Larson granted the restraining order because of the irreparable harm the Williamses would suffer if they were not permitted to play. Judge Larson noted that “[c]ourts have found that the loss of NFL playing time is sufficient to constitute irreparable harm,” and that in this case, “because the NFL playing season is relatively short, [the Williamses] would suffer a significant loss of playing time without the TRO."

The NFL, of course, hopes that Judge Larson never gets to reach the merits of the case. Instead, the NFL’s primary (and strongest) argument is that the state law claims are preempted and should not even be considered by the state court. In short, the NFL is arguing that federal labor law permits the NFL and the NFL Players Association to maintain a national drug policy that applies equally to all 32 NFL teams and their employees throughout the United States. The NFL policy is designed to protect its employees and sets up procedures to ensure safe and fair drug testing. Thus, the NFL is arguing that any suits brought under state laws designed to provide similar protection for employees—such as DATWA and CPA— should be preempted.

The NFL therefore filed an appeal with the Eighth Circuit seeking to overturn Judge Magnuson’s decision to remand the state claims back to Judge Larson. The NFL has also asked Judge Larson to stay his TRO (and the entire state court proceeding) until the Eighth Circuit has ruled on the NFL’s appeal. In other words, the NFL is asking Judge Larson to wait to rule on this case until the Eighth Circuit has decided whether or not Judge Larson can even consider the case. In today’s order, Judge Larson agreed to hold a hearing to determine the appropriateness of a stay on July 22, 2009.

More to come as this case unfolds…

Quick Update on Star Caps and the Willams Wall

Earlier today, Hennepin County District Judge Gary Larson granted a temporary restraining order that will prevent the NFL from suspending Pat and Kevin Williams or from subjecting them to “reasonable cause” drug testing until completion of a trial on the merits. For detailed discussion of the case, see my earlier posts here and here. Depending on the timing of the trial, this may allow the “Williams Wall” to be on the field for the start of the NFL season. More on this later this afternoon…

"God Bless America" lawsuit settled

The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here.

According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees. The Yankees will pay nothing, although they promise in the settlement agreement that the policy at the new Stadium is and will remain that people are free to get up and move around during the song.

Obviously, we should not read anything about the merits into the decision to settle, but consider two things. First, $ 10,001 is a significant amount, given the lack of apparent actual damages. Second, we might infer that both the City and the Yankees took the view that the state action point was not so obvious that it could be resolved on a 12(b)(6), meaning Discovery would be necessary and perhaps prompting defendants to settle.

Update: Thursday, 2 p.m.:

I forgot to mention one ridiculous detail in the story. The Yankees insist that there never was a policy of preventing people from leaving during the Stretch, so it is not that the lawsuit has prompted a change of policy. This claim, of course, flies in the face of the media reports from two years ago in which the team's COO and a spokesman for George Steinbrenner both spoke about having a policy in place.

New Sports Law Scholarship

Recently published scholarship includes:

Christopher Bidlack, Comment, The prohibition of prosthetic limbs in American sports: the issues and the role of the Americans with Disabilities Act, 19 MARQUETTE SPORTS LAW REVIEW 613 (2009)

Daniel Bilsky, From parts unknown: WWE v. Jim Hellwig in the ultimate battle for character copyright, 19 MARQUETTE SPORTS LAW REVIEW 419 (2009)

Ethan Flatt, Note, Solidifying the defensive line: the NFL Network’s current position under antitrust law and how it can be improved, 11 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 637 (2009)

Brian P. Harlan, Note, The California Supreme Court should take a mulligan: how the Court shanked by applying the primary assumption of risk doctrine to golf, 29 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 91 (2008-2009)

Holli N. Heiles, Comment, Baseball’s “growth” problem: can Congress require Major League Baseball to test its athletes for human growth hormone? A proposal, 62 ARKANSAS LAW REVIEW 315 (2009)

Sarah R. Heisler, Note, Steroid regulation in professional sports: Sarbanes-Oxley as a guide. 27 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 199 (2009)

Andrew D. Hohenstein, Comment, Team physicians: adhering to the Hippocratic Oath or just plain hypocrites?, 19 MARQUETTE SPORTS LAW REVIEW 579 (2009)

Robert Holo and Jonathan Talansky, Taxing the business of sports, 9 FLORIDA TAX REVIEW 161 (2008)

Christopher J. Kaufman, Comment, Unsportsmanlike conduct: 15-yard penalty and loss of free speech in public university sports stadiums, 57 UNIVERSITY OF KANSAS LAW REVIEW 1235 (2009)

Erick S. Lee, Play ball!: substituting current federal non-regulation of fantasy sports leagues with limited supervision of hyper-competitive leagues, 29 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 53 (2008-2009)

Rick J. Lopez, Comment, Signing bonus skimming and a premature call for a global draft in Major League Baseball, 41 ARIZONA STATE LAW JOURNAL 349 (2009)

Michael C. Macchiarola, Securities linked to the performance of Tiger Woods? Not such a long shot, 42 CREIGHTON LAW REVIEW 29 (2008)

James T. McKeown, 2008 antitrust developments in professional sports: to the single entity and beyond, 19 MARQUETTE SPORTS LAW REVIEW 363 (2009)

Alan Pogroszewski, When is a CPA as important as your ERA? A comprehensive evaluation and examination of state tax issues on professional athletes, 19 MARQUETTE SPORTS LAW REVIEW 395 (2009)

Ann Scales, Student gladiators and sexual assault: a new analysis of liability for injuries inflicted by college athletes, 15 MICHIGAN JOURNAL OF GENDER AND LAW 205 (2009)

Kaitlyn Anne Wild, 2008 annual survey: recent developments in sports law, 19 MARQUETTE SPORTS LAW REVIEW 437 (2009)

Sara Young, Note, Does a coach owe players a fiduciary duty? Examining the relationship between coach and team, 35 JOURNAL OF COLLEGE AND UNIVERSITY LAW 475 (2009)

Diagramming Palin's Metaphors

(H/T: Deadspin). Double-click image to enlarge.

Stephon Marbury Uses Players' Association to represent him as Free Agent

Rick has written extensively about the benefits of players' associations retaining the capacity to negotiate contracts on behalf of individual players--meaning that players use the players' association, instead of an agent or agency, to negotiate employment contracts with teams.

Boston Celtics' free agent guard Stephon Marbury has decided to use National Basketball Players Association' deputy counsel Hal Biagas to represent him this off-season. Last season, Biagas negotiated Marbury's buyout with the Knicks (a subject discussed earlier this year at the Yale Law School Sports Litigation Panel which Biagas, Alan Milstein, and I and others were on).

Marbury's reasoning, as told to Marc Spears of the Boston Globe, is straightforward: “The best thing about the NBPA is that they work for you for free. When you have a team that negotiates the Collective Bargaining Agreement for all the players representing you, there is strength in numbers.’’

Although Marbury is a rather unique personality, perhaps other players might turn to the NBPA for representation. After-all, players' have a financial incentive to do so: while an NBA agent typically receives a 4% commission on a player contract, the player can keep that money if he uses the NBPA instead. So if Marbury signs for $2 million with, say, the Washington Wizards, he'll keep the $80,000 that would have been paid to his agent; Biagas and the NBPA won't get a commission. $80,000 is not an insignificant chunk of change, even for an NBA player.

Then again, NBA agents might argue that they are in a better position to zealously represent players, since their interests are only with the player and not with the collective entity of players (i.e., the NBPA). Of course, when an agent represents more than one player, particularly multiple players on the same team who are seeking the same salary cap space, a player might question the zeal behind his agent's representation. Along those lines, it's likely difficult for a successful agent to avoid all possible conflicts of interest in his/her representation, meaning the distinction between NBPA representation and agent representation may not always be so stark.

The Fortunate 50

Jonah Freedman of Sports Illustrated has compiled his annual list of the top 50 earning U.S. athletes, taking into account salary, winnings, and endorsements. Always a fun read. Some interesting points:

* Tiger Woods, not surprisingly, ranks first, earning just under $100 million ($92 million of which is from endorsements), followed by fellow golfer Phil Mickelson.

* Lebron James ranks third, earning $42 million. Will his endorsement income--which is already $28 million a year--go up should he leave Cleveland next summer for the Knicks?

* Three of the top 10 earning atheltes are NBA players who jumped directly from high school to the NBA (Lebron, Kevin Garnett, and Kobe Bryant), while four other prep-to-pro stars are also in the top 32 (Dwight Howard is #13, Jermaine O'Neal is #20, Rashard Lewis is #30, and Amare Stoudemire is #32). Allen Iverson, who was my more celebrated classmate at Georgetown University for two years, and Shaquille O'Neal, who played three years at LSU, are also NBA players in the top 10.

* Tom Brady, despite his enormous celebrity, is only #28 on the list, earning $18 million a year between salary and endorsements. For what it's worth, his wife--super model Gisele Bundchen--is reportedly worth $150 million.

* The Manning Brothers are both in the top 50: Peyton is #10 while Eli is #43.

A sports law related point: While player-agents, who in the NFL, MLB, NBA, and NHL are regulated by the respective players' association, typically receive a small commission percentage of a player's contract with a team (depending on the players' association in question, the agent usually receives a 2 to 4% commission), their cut of an endorsement contract tends to be higher (in the ballpark of 10 to 20%). As a result, the difference between income from a player contract and income from an endorsement contract matters a great deal to an agent. It also means that agents who represent endorsement-attracting players tend to see their earnings go up considerably.