Commentary

NFL lawyers on a losing streak

The Eighth Circuit Court of Appeals hasn't been good to the NFL in two recent cases

Originally Published: November 11, 2009
By Lester Munson | ESPN.com

The latest from the wacky and wonderful sports world of warrants, witnesses and well-pleaded complaints, served up today with a rack of aluminum bats. Here we go again, behind the headlines but not above the law.

Massive, random, strict … and failing

The Lords of the NFL are proud of the way they test for performance-enhancing drugs. They like to tout their program as massive, random and strict. Each player is tested six times in the offseason, and there are at least 10 tests per week per team during the season. That's at least 13,760 urine tests each year, all done without warning. Players are held strictly accountable for anything found in the results. Even if a player honestly did not know an over-the-counter product contained a banned substance, he faces an automatic four-game suspension when the test comes back positive..

[+] EnlargeCharles Grant
Chris Graythen/Getty ImagesThe Saints' Charles Grant is not only good at rushing the passer, he's good at litigating against the league, too.

But as massive, as random, and as strict as it might be, the NFL system isn't working.

Four defensive linemen who were caught using bumetanide, a masking agent that is used to cover up steroids, are beating the system, using litigation to do it. They have avoided automatic suspensions, and they are still playing -- and playing well -- each week. Their teams, the Vikings and the Saints, are a combined 151.

It helps, of course, to have Brett Favre and Drew Brees leading their offenses. But where would Minnesota and New Orleans be without their litigating stalwarts rushing the passer? Defensive tackles Kevin Williams and Pat Williams have produced six of the Vikings' 18 sacks. Defensive ends Will Smith and Charles Grant have accounted for 10½ of the Saints' 19 sacks.

NFL commissioner Roger Goodell told a congressional committee last week that one of the goals of the NFL testing program is to "ensure that young people know that using steroids" is "wrong." As the Vikings and the Saints march toward the playoffs and a possible Super Bowl, you have to wonder if that goal is being met.

The situation is sufficiently serious that Goodell suggested to the committee that Congress must take action. He told the House Subcommittee on Commerce, Trade and Consumer Protection that the successful attack by the two players from Minnesota on the testing system now requires a "narrow and specific" change in federal law.

Recognizing the possibility of a federal takeover of all drug testing in professional sports -- something the subcommittee chair, Rep. Bobby Rush, D- Ill., has previously suggested -- Goodell emphasized the adjective "narrow."

The "narrow" legislation that Goodell wants is a change in the federal law that governs collective bargaining, which would allow the NFL's drug-testing agreement with the NFL Players Association to trump state laws establishing rights for workers who are tested for drugs. The Williamses' success in the federal and state courts in Minneapolis and in the U.S. Court of Appeals for the Eighth Circuit is based on a Minnesota law that establishes liberal rights for anyone who faces drug testing in the workplace.

Goodell's suggestion did not resonate with the committee. A sports law professor who also testified at the hearing, Jeffrey Standen of Willamette University, warned that instead of Goodell's "narrow" change in federal law, the committee and the Congress are more likely to consider the federal takeover that Rush has previously discussed.

[+] EnlargeRoger Goodell
AP Photo/Haraz N. GhanbariRoger Goodell wants Congress to step into the drug-testing business, but only if it's a baby step.

"If they see people playing who should not be playing and think that the policy is dead, they will take the kind of action that professional leagues have tried to avoid," Standen told ESPN.com.

It could lead, Standen said, to a government body similar to the independent U.S. Anti-Doping Agency that administers drug testing in Olympic sports.

If Standen is right (and he might be), four players who beat the system and are leading their teams toward the playoffs could produce a radical change that could affect all teams, in all sports, in all seasons.

Another tough NFL loss

In addition to its humiliating loss in the Williams drug-testing challenge in the U.S. Court of Appeals for the Eighth Circuit, the NFL suffered another important defeat this week. And it came in the same high court.

As part of its unsuccessful attempt to recapture Michael Vick's bonus money for the Atlanta Falcons, the NFL and its attorneys launched a highly unusual and risky attack on U.S. District Judge David Doty, the judge in Minneapolis who has presided over disputes between players and owners for nearly 20 years.

Doty's role as arbiter of NFL labor disputes evolved in a series of antitrust lawsuits that the players' union filed through the years under the leadership of the late Gene Upshaw. Those lawsuits led to free agency, increased salaries, huge bonuses and numerous other benefits for the players.

[+] EnlargeDavid Doty
Getty ImagesJudge David Doty, shown here in a 1992 portrait, weathered the storm of an attack from NFL lawyers.

Doty, the NFL claimed in a series of briefs filed in 2008 and early 2009, had demonstrated "bias" against the NFL in his earlier ruling on the Vick bonuses, his comments in newspaper articles, and his penchant for allowing Upshaw and his attorneys into his chambers for visits during the antitrust trials in the early '90s.

The NFL's briefs were a direct and personal attack on a federal judge, a rare move for lawyers who must have known that if the maneuver failed, they would be back in front of the judge on issues important to their client.

In a ruling on Tuesday, three judges of the Appeals Court in St. Louis were unanimous in their vindication of Doty. Describing the history of Doty's work in the complex series of NFL cases that ended decades of acrimony, the judges noted that Doty's work led to a period of "peace and prosperity" in the NFL that began in 1993 and has continued to the present.

An affable and charming jurist, Doty frequently invited litigants, lawyers and reporters into his chambers for coffee and conversation. Anyone who participated, including this reporter, knows that the conversation never strayed anywhere near the issues in the litigation. But that did not stop the NFL from what amounted to a personal attack on Doty.

Will it come back to haunt the NFL and its lawyers in the next grievance that lands in Doty's courtroom? The answer is no. Doty is a jurist of such rectitude and integrity that no one -- other than the NFL, that is -- would accuse him of skewing a decision to even a score.

If it pings, is it dangerous?

In eight days of trial last month, a jury in Helena, Mont., learned a lot about the dangers of aluminum bats.

Expert witnesses explained that an athlete needed .4 of a second to react to a line drive off an aluminum bat. Using an audiotape of an American Legion game in 2003, attorneys for the family of Brandon Patch demonstrated that only .376 of a second elapsed between the sound of the bat hitting the ball and the sound of the ball hitting Patch's head as he followed through on a pitch in front of a mound 60 feet, 6 inches from home plate. The impact of the line shot caused a bruising in Patch's brain that resulted in his death.

It was enough for the jury to conclude unanimously that Hillerich & Bradsby, the manufacturer of the Louisville Slugger bat, should have placed a warning on the bat. Because Patch and other players were not warned, the jury concluded that the bat manufacturer was responsible for his death and awarded his family $850,000.

[+] EnlargeBats
AP Photo/Gene J. PuskarShould aluminum bats have to carry a warning from the Surgeon General that old-school wood doesn't?

The jury's decision is hardly part of a trend, and cases such as this one generally are still extremely difficult for families who seek monetary damages. But it might signal that the courts could become more willing to listen to efforts to pin responsibility for serious aluminum bat injuries on Louisville Slugger and other manufacturers.

"Louisville Slugger throws the entire shop at you as they defend these bats," said Joe White of Oklahoma City, one of the attorneys who represented the Patch family.

White explained that the cost of producing the necessary evidence in a products liability case against a manufacturer can be staggering.

"We spent at least $150,000 just in expenses for witnesses and other things to present the Patch case," White said. And that total doesn't include fees for White and the other attorneys.

A spokesman for Hillerich & Bradsby insists there is nothing inherently dangerous about aluminum bats. The jury agreed, answering "no" when asked in its verdict to decide whether the bat was "defective."

"We made the bat in accordance with the rules," said Rick Redman of Hillerich & Bradsby. "It was approved for play by baseball's organizing and governing organizations."

The next chapter in the controversy over aluminum bats will come, attorney White says, in a trial that will begin in Oklahoma in the fall of 2010 involving a pitcher who suffered serious facial injuries.

Relevant Ramblings

The trial of NFL Hall of Famer Bruce Smith on DUI charges has been postponed until Jan. 14, 2010, in Virginia Beach, Va. Smith has beaten two previous DUI charges and claims that his failures in field sobriety tests in the Virginia Beach case were the result of knee surgeries and concussions. … It appears that Paul Kelly, who was fired by the executive board of the NHL Players' Association in a tumultuous meeting in Chicago two months ago, will settle his contract with the union for a payment of between $1.5 million and $1.9 million. … The U.S. Court of Appeals for the Ninth Circuit in San Francisco is pondering the idea of allowing 27 of its judges to re-hear the baseball drug list case, the complicated series of lawsuits that involved 103 positive drug tests done in 2003. Seventeen judges have already rendered decisions in the dispute. It is not clear what the additional judges would add, but it is increasingly clear why lawyers and judges throughout the U.S. routinely refer to the high court as the Ninth "Circus" Court of Appeals.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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