Well the title says it all....okay, I will extrapolate a little on that. This about Mr. Goodell's recent testimony before congress, and the budding controversy about the "starcaps" case. For those of you that are not NFL fans, Minnesota Vikings or New Orleans Saints fans, or crazy sports fans, I will summarize briefly.
Two Minnesota Vikings Players and Two New Orleans Saints players took an over the counter supplement called starcaps, it did not say that it contained a certain diuretic in it, said diuretic is a banned substance according to the NFL, but it has no performance enhancing qualities, and that much is uncontroverted. Now the NFL and the NFLPA (NFL Players Association) when they sat down and agreed on a contract agreed to the NFL Substance abuse policy, which included suspensions for taking the diuretic that was in starcaps. When these four players were found to be in violation of that policy, they were suspended by the NFL. However, the Minnesota Vikings players initially sued the NFL in state court asking for an injunction, saying essentially the suspensions by the NFL, violated minimum employee protections in Minnesota state law, the NFL got the case removed to federal court, and the Federal District Court, ordered the case taken back to state court, as this case would hinge on the application of state law, not federal law. The state court, then decided that the Minnesota Vikings' players had a reasonable likelihood of success on its merits, and set the case for trial. The date of the trial is well beyond the football season, therefore, this litigation has allowed the players to play through two seasons worth, while fighting this suspension. The NFL, then appealed the decision, to the U.S. Court of Appeals, and they lost again. The NFL could also appeal to the U.S. Supreme Court, but their chances of success are very small there, although, I am certain they will try.
Now here is the controversy that I want to talk about. Roger Goodell has essentially gotten a legal butt whipping in Minnesota State Courts, A Federal District Court, and the Eighth Circuit U.S. Court of Appeals, and it may very well happen in the United States Supreme Court. So if you are Roger Goodell, the commissioner of the most powerful sports association in existence right now, and you have made it your business to pummel everyone in your path, what do you do? Do you get better lawyers, since all of your lawyers lost, no you don't do that. Okay, maybe you look at the actual item that has no performance enhancing qualities to it, maybe you just take that off the list, because, well it doesn't hurt anyone, or make the playing field unlevel, no you don't do that. What DO you do? Well, I will look in my crystal ball...aha, here is what you do. You go to congress, and cry you don't have enough power. I'm sorry this is the, ....ARE YOU KIDDING ME, moment of my day.
The NFL is by far the most popular, most financially capitalized, and most exciting sports league in the world, and they need congressional legislation, to help them enforce their own policy. Their argument is seriously that they need an exemption so they can violate state laws because they don't like them. Here is a novel concept, how about actually doing some research and make sure your CBA (Collectively Bargained Agreement), actually complies with the state laws of the states that you do business in. Why should the NFL be given an exemption that other organizations and corporation don't have? Do you honestly believe before Intel promulgates a policy, that they don't do some research and see if it can be legally applied in all the states it does business in?
Roger Goodell has from the very beginning of his tenure as NFL Commissioner, essentially been acting like Wyatt Earp, and shooting anything down he hasn't liked, he has been the proverbial sheriff of everything in his purview. He has been allowed to act like a schoolyard bully, from the Michael Vick situation to the Plexico Burress, to Adam "Pacman" Jones, the commissioner has done what he has wanted to. But now someone has stood up to him, who dared to do this aggregious action, well it was those terrible activist judges in Minnesota and in the Federal Court System. But unlike the Players Association, who Goodell smacks around like a punching bag at a mma gym, these judges are insulated from his control. The commissioner cannot fine these judges, or stop them from playing, so who does he go to, he finds an audience with the only group of blowhards with a bigger ego than him, our fine congressional representatives.
Can you imagine the scene at the congressional hearing ? On one side is Roger Goodell, the big bad sheriff of the NFL, and on the other side is the group of congressional bullies that decided to waste God only knows how much money on the steroids probe and hearings. Now, his request to essentially get a congressional pass, at the requirement that most of everyone else in the country has to do, namely to follow the laws of the individual states. So here he is asking congress for this pass, now let's remember at the time of the steroid hearings, he was there touting how effective the steroid policy was, and that was the reason they should not lose their anti-trust exemption, because they were somehow the golden example. Well now they are saying, "well, we weren't as good as we thought, and even though we said the reason we shouldn't lose the anti-trust was because of our great steroid policy, now we want you to help us violate state laws so we can enforce our own policy." Oh and I expect right after that he said, "please...please..with a cherry on top!" I don't think I have heard such high levels of whining, since the automobile companies came looking for bailouts.
The thing that irks me about this issue, is that Roger Goodell is an executive who has worked extensively with the cba for years and should understand it's limitations, he has the money to have the best labor law attorneys in the world in his payroll, and despite all of that he got out-lawyered by a couple of football players, who by all accounts have done little wrong in this case. If Roger Goodell didn't want that to happen he should have had better legal representation, and you know sometimes you just lose. When that happens, you take your lumps and go on, and tailor your product so you don't get screwed anymore. Did that happen here, no , essentially he doesn't want to change anything, he wants a congressional pass, he is saying, "I am more powerful than the state, than congress, I am an all powerful autocracy."
Ladies and Gentlemen of Congress, please allow labor law nuances to stay with the court, this has not historically, nor should it now be something congress pre-empts. For God's sake, I cannot think of a single organization more powerful than the NFL, do not take away the only way for its employees to fight this juggernaut.
And as always,
Keep sports on your mind, and the law on your side.
The Sports Law Blogger
http://www.sportslaw-sportslaw.blogspot.com
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