Lawsuit filed for five of six players; Pittman is not included
MINNEAPOLIS -- A federal judge will be asked to decide Friday whether five suspended NFL players deserve a chance to play this weekend.
At issue is whether the league had a duty to notify its players and their union that a dietary supplement the five took contained a banned ingredient. The NFL Players Association argues in a lawsuit filed Thursday that the NFL knew about the tainted supplement but failed to share that information with players whose careers were on the line.
The union filed the lawsuit to block the suspensions of five of the six players who were benched this week for violating the league's anti-doping policy. The union wants Kevin Williams and Pat Williams of the Minnesota Vikings, and Charles Grant, Deuce McAllister and Will Smith of the New Orleans Saints, to be eligible to play Sunday.
Union attorneys will go before U.S. District Judge Paul Magnuson at 11:30 a.m ET in St. Paul on Friday to ask for a preliminary injunction. They said in filings Thursday that the players are critical to their teams' playoff hopes.
NFLPA's lawsuit documents
View the complete documents in the case of the NFLPA vs. the NFL. The lawsuit, which seeks to block the suspensions of two Minnesota Vikings players and three New Orleans Saints players, will be heard Friday morning in St. Paul, Minn. PDF
The Williamses have been defensive stalwarts for a Vikings team in first place in the NFC North. The Saints are last in the NFC South and are a longer shot, two games out of the wild-card spot with four games to go.
"Not only these players, but their teammates and fans will suffer irreparable harm if the wrongful suspensions are not enjoined," the memo says.
The five players each were suspended for four games for testing positive in training camp in July and August for the banned diuretic bumetanide, which can be used as a masking agent for steroids. The drug was in the dietary supplement StarCaps, even though the label did not list the diuretic as an ingredient.
The key issue is whether the NFL had any specific obligation to notify players and the union that it had known since at least 2006 that the weight loss supplement contained the banned diuretic. The NFL says the burden is on players to know what's going into their bodies.
The union's lawsuit says the NFL-appointed doctor and the NFL lawyer who administer the league's steroids policy both knew StarCaps contained bumetanide. It alleges they breached their duty to the players and endangered their physical well-being by not notifying players.
It's just common sense that someone shouldn't be punished in those circumstances.
--NFLPA lawyer David Feher
"It's just common sense that someone shouldn't be punished in those circumstances," David Feher, a lawyer for the union, told The Associated Press.
In letters to the Vikings and Saints on Tuesday, NFL executive vice president Jeffrey Pash acknowledged: "No specific advisory or other communication regarding the presence of bumetanide in StarCaps was sent to NFL players."
But the NFL contends it's not obligated by its agreements with the union to issue specific warnings about specific products.
Pash wrote that in 2006, the NFL sent written notice to the presidents, general managers and head trainers of all NFL teams, as well as to NFLPA executive Stacey Robinson, that the distributor of StarCaps, Balanced Health Products, had been added to the league's list of prohibited dietary supplement companies. He also wrote that Robinson, who oversees steroid policy for the union, had added the distributor to the list of banned companies on the union's Web site.
The players union says that notice wasn't enough, given that the league had specific knowledge that StarCaps contained a banned substance.
Dr. John Lombardo, who oversees the league's steroids policy, "expressly knew and willfully withheld the critical information that StarCaps secretly contained the banned diuretic substance," the filings say.
The [steroid] program and the collective bargaining agreement expressly bar precisely this kind of lawsuit ... There is no merit to this lawsuit and we look forward to responding to the court.
--NFL spokesman Greg Aiello
The filings say that NFL vice president Adolpho Birch, who also oversees the policy, withheld the information that StarCaps "contained a prohibited substance that could jeopardize the health and career of any player who used the product."
According to the filings, during the players' arbitration hearings last month a consulting toxicologist for the league, Dr. Bryan Finkel, testified Lombardo told him he did not disclose what he knew because he wasn't sure whether all StarCaps products contained the banned drug. Finkel also said Lombardo was afraid the supplement manufacturer might sue him if he made a public statement against the product.
Birch testified during the arbitration hearings that he did not notify any teams, players or the union in writing that StarCaps contained bumetanide, the memo shows.
Kevin and Pat Williams had already obtained a temporary restraining order blocking their suspensions from Hennepin County District Judge Gary Larson on Wednesday. On Thursday, the NFL had that case moved into federal court, where it was assigned to Magnuson.
The league's attorneys said in their filings they will ask Magnuson at Friday's hearing to quash Larson's temporary restraining order. They said the arbitrator's decision upholding the suspensions is final and can't be appealed under an agreement with the players union.
"The program and the collective bargaining agreement expressly bar precisely this kind of lawsuit," NFL spokesman Greg Aiello said in an e-mail to the AP. "All of the steroid program's rules and procedures are established in agreement with the players' union. In other words, the players have agreed to the rules and the procedures that they are now challenging. There is no merit to this lawsuit and we look forward to responding to the court."
Thursday's lawsuit does not include Houston Texans long snapper Bryan Pittman. David Cornwell, Pittman's lawyer, told the AP that his client isn't included because his circumstances "differ substantially from the men who used StarCaps." Cornwell said he didn't think a challenge by Pittman would succeed.
A seventh player under scrutiny, Atlanta's Grady Jackson, has not been suspended. Pash has asked for additional information.
Jackson sued StarCaps in California last month, seeking restitution for any lost salary and damages for "false advertising and unfair business practices."
McAllister said Tuesday that he told other players about StarCaps because he believed it was a permitted supplement.
"I wouldn't have put those guys in jeopardy if I had known something was in that product," he said.
Copyright 2008 by The Associated Press
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