Michael C. Dorf

Football and Federalism: A Case Centers on NFL Drug Testing

By MICHAEL C. DORF


Wednesday, September 23, 2009

Last week, a panel of the United States Court of Appeals for the Eighth Circuit dealt an apparent blow to the National Football League's drug-testing policy. In Williams v. NFL, the court held that league's collective bargaining agreement (CBA) with the NFL Players Association ("the Union"), did not prevent Kevin Williams and Pat Williams, two players for the Minnesota Vikings, from challenging the league's drug-testing regime under Minnesota laws.

Both players had been disciplined for testing positive for a prescription diuretic that is banned by the NFL because it could be used to mask steroid use. They argued that they had taken the banned substance unknowingly, but the NFL strictly enforced a rule making players accountable even for accidental use. Last week's ruling did not decide the merits of that dispute, but only held that the lawsuit could proceed further. (The Eighth Circuit affirmed the district court's ruling in favor of the NFL on other claims, which I shall not discuss here.)

The Williams case involves a relatively routine application of Section 301 of the Labor Management Relations Act (LMRA), the core federal labor statute. The case is nonetheless interesting because the arguments that the NFL raised, if successful, would have substantially undercut American federalism.

The Labor Law Issue in the Williams Case

The LMRA protects the right of workers to unionize and establishes a national policy favoring arbitration, rather than litigation, to resolve disputes between labor and management. Its Section 301 is, by its terms, simply a grant of jurisdiction to the federal courts to adjudicate challenges to arbitrators' rulings and other questions, but the Supreme Court has long construed Section 301 as also having substantive effect: It pre-empts (that is, forbids) lawsuits based on state law that either rely directly on a CBA or indirectly require the interpretation of a CBA. Interpretation and enforcement of a CBA, it is said by the federal courts, are primarily matters for arbitrators.

Yet virtually anything that happens in a unionized workplace can be said to have some connection to the CBA that is in place there. Consequently, in defining the scope of Section 301 preemption, the courts have been careful to preserve a role for state law in areas that touch only tangentially on the CBA and its subject matter.

At issue in the Williams case were two Minnesota statutes, the Drug and Alcohol Testing in the Workplace Act and the Consumable Products Act. The former limits the circumstances under which an employee may be discharged for failing a test that has not been carried out and confirmed in compliance with statutorily-mandated procedures. The latter protects employees against being disciplined for using legal products, so long as that use occurs away from the workplace and does not affect performance. The NFL argued that the players should not even be permitted to try to prove their case under these Minnesota statutes because they are pre-empted by Section 301.

The Eighth Circuit disagreed. The court said that neither of the statutory claims was an effort to enforce the CBA between the NFL and the Union. Nor, said the court, did enforcement of the Minnesota statutory duties call for an interpretation of the CBA. Accordingly, the court held, this is one of those disputes to which state law can be applied. The ruling paves the way for a trial on the merits of the players' state claims. Meanwhile, the players can continue to play for the Vikings.

Is the Eighth Circuit Ruling Unfair?

In response to the Eighth Circuit ruling, NFL Commissioner Roger Goodell worried about the implications for competition. He said that now, "players in Minnesota in any sport--this could affect other sports--are subject to a different standard than in the other 49 states. You recognize that it is a fairness question for all the athletes." Is that right?

Commissioner Goodell contends that Minnesota's statutory protections make it somewhat harder to enforce the NFL's anti-doping policy against the Vikings than against other teams. That, in turn, could confer a competitive advantage on the Vikings (and the Twins, Timberwolves and Wild, relative to the anti-doping rules of their respective sports). However, that advantage is likely to be small. For the most part, the Minnesota statutes at issue do not immunize doping that the NFL prohibits. Indeed, this particular case is illustrative of that point: The players were disciplined by the league for taking a supplement that they did not realize contained an unlisted diuretic. That hardly turned them into Barry Bonds or Jose Canseco.

Moreover, variations in state law already confer other advantages on various teams. Consider that the highest income tax rate in New Jersey, where the Giants play and mostly live, is nearly nine percent, but Texas has no personal income tax. Thus, for roughly every eleven dollars the Giants pay Eli Manning, the Cowboys need only pay Tony Romo ten dollars to deliver to him the same post-tax income that Manning enjoys. Or consider that if Plaxico Burress had accidentally shot himself in the leg with an unlicensed handgun somewhere other than New York City, he might well be catching passes now, rather than serving time in prison.

Is the application of different laws to different players in these circumstances unfair? In one sense, yes, but part of what inspires fans to cheer for their home team is the sense of connection that they share with the players. In an era of trades and free agency, that connection is tenuous. Exempting players from the state laws that apply to everyone else in the team's state, including the fans, would further undermine it.

Indeed, it is part of the charm of various sports franchises that the professional leagues do not attempt to eliminate all local variations. Fenway Park's "green monster" can bedevil visiting left fielders, while the Green Bay Packers are likely better prepared for a snowy game in December than are the Miami Dolphins.

Undoubtedly, it would be convenient for the NFL if all of its players could be subject to all of the same laws in exactly the same way. It would also be convenient if multi-national corporations doing business in multiple states could operate under a single legal code. Yet rental car companies must comply with different state laws governing the insurance they can offer; construction companies must comply with different state and local building codes; attorneys licensed in one state cannot automatically practice law in other states; and so on.

Pursuant to its constitutional power to regulate interstate commerce, Congress can prescribe uniform national laws that preempt state and local variations. However, in our system of federalism, Congress does not displace every law that it could, consistent with the Constitution, choose to preempt. Members of Congress who take federalism seriously first ask themselves whether proposed preemptive legislation in any particular area is truly necessary, before voting to enact it.

As interpreted by the courts, federal labor law strikes a balance. To promote the national policy favoring expeditious resolution of labor disputes, the courts treat Section 301 as pre-empting state law claims that require the interpretation of collective bargaining agreements. But as the Eighth Circuit rightly recognized in the Williams case, that policy does not swallow all of state law.

Commissioner Goodell was not wrong to identify a potential unfairness in the legal regime that results from the Eighth Circuit's ruling, but that unfairness is relatively small. What would have been truly unfair, in contrast, would have been a decision to treat the NFL--or sports leagues more generally--differently from other multi-state enterprises.


Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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