Williams v. National Football League

Decision Date11 September 2009
Docket NumberNo. 09-2462.,No. 09-2247.,No. 09-2249.,09-2247.,09-2462.,09-2249.
Citation582 F.3d 863
PartiesKevin WILLIAMS; Pat Williams, Plaintiffs-Appellees/Cross Appellants, v. NATIONAL FOOTBALL LEAGUE; John Lombardo, M.D., Defendants-Appellants/Cross Appellees, Brian Finkle, Defendant, Adolpho Birch, Defendant-Appellant/Cross Appellee. National Basketball Association; National Hockey League; United States Anti-Doping Agency; Major League Baseball, Amici on behalf of Appellant. National Football League Players Association, Plaintiff-Appellant, v. National Football League; National Football League Management Counsel, Defendants-Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Peter R. Ginsberg, argued, New York, N.Y. (Ronn B. Kreps, Minneapolis, MN, on the brief), for Appellees/Cross-Appellants.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

In these consolidated appeals, the National Football League (NFL), Dr. John Lombardo, Independent Administrator of the Policy on Anabolic Steroids and Related Substances, and Adolpho Birch, the NFL's Vice President of Law and Labor Policy, appeal the district court's1 order, concluding that the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings (collectively, "the Players") are not preempted by section 301 of the Labor Management Relations Act ("section 301" or "LMRA"), 29 U.S.C. § 185. The Players cross-appeal the district court's order concluding that their Minnesota common law claims are preempted by section 301. In addition, the National Football League Players Association (the "Union"), the certified collective bargaining representative of all NFL players, appeals the district court's order confirming the arbitration awards which upheld the Players' suspensions. We affirm in all respects.

I.

The NFL is an unincorporated association of member clubs which own and operate professional football teams. The NFL promotes, organizes, and regulates professional football in the United States. Players in the NFL enter into a contract with a member club, not the NFL. NFL Players Association, NFL Collective Bargaining Agreement 2006-2012, App. C at 248 (2006) [hereinafter CBA]. On March 8, 2006, the National Football League Management Council (NFLMC), which is the sole and exclusive bargaining agent of the member clubs, and the Union entered into the NFL Collecting Bargaining Agreement 2006-2012 (the "CBA"). The CBA expressly incorporates the Policy on Anabolic Steroids and Related Substances (the "Policy").2 Id. art. XLIV, § 6(b). The CBA provides that "all players, Clubs, the [Union], the NFL and the [NFLMC] will be bound hereby." Id. art. II, § 1.

The Policy "is conducted under the auspices of the [NFLMC]." NFL Players Association, National Football League Policy on Anabolic Steroids and Related Substances, § 2 (2008) [hereinafter Policy]. It is "directed" by Dr. Lombardo as "Independent Administrator." Id. The Policy also provides for a "Consulting Toxicologist," Dr. Bryan Finkle. Id. The Policy bans NFL players from using a number of "Prohibited Substance[s]," including "`blocking' or `masking' agents[,]" such as "diuretics or water pills, which have been used in the past by some players to reach an assigned weight." Id. § 8. The Policy addresses the consequences of a player's "[u]nknowing [a]dministration of [p]rohibited [s]ubstances." Id. § 3(E). It adopts a rule of strict liability under which "[p]layers are responsible for what is in their bodies," and explains that "a positive test result will not be excused because a player was unaware he was taking a Prohibited Substance." Id. Section eight of the Policy, entitled "Masking Agents and Supplements," states that "a positive test result will not be excused because it results from the use of a dietary supplement, rather than from intentional use of a Prohibited Substance." Id. § 8.

"Players with a confirmed positive test result will be subject to discipline by the Commissioner as outlined in the Policy...." Id. § 6. "The first time a player violates this Policy by testing positive [for a banned substance] ... he will be suspended without pay for a minimum of four regular and/or postseason games." Id. Players subject to disciplinary action may appeal to an arbitrator, who is "either the Commissioner or his designee," and whose decision "constitute[s] a full, final, and complete disposition of the appeal" that is "binding on all parties." Id. § 10.

Appendix F to the Policy, a joint letter from the Union and the NFL entitled "Use of Supplements," warns that, because dietary "supplements are not regulated ... by the government," there is "no way to be sure" that supplements "contain the ingredients listed on the packaging[.]" Id. App. F. The letter "strongly encourage[s] [players] to avoid the use of supplements altogether," and warns that, "if you take these products, you do so AT YOUR OWN RISK!" Id. The letter advises that "several players have been suspended even though their positive test result may have been due to the use of a supplement" and that "if you test positive or otherwise violate the Policy, you will be suspended" because "[y]ou and you alone are responsible for what goes into your body." Id. Appendix G to the Policy, entitled "Supplements," is a memorandum from Dr. Lombardo which states, "If you take supplements that contain a substance that violates the [P]olicy it will subject you to discipline[,]" and, "[m]ore importantly, you run the risk of harmful health effects associated with their use." Id. App. G.

Players may contact the "NFL Dietary Supplement Hotline" to obtain "confidential and accurate information about these products, including their ingredients, effects[,] and adverse reactions." (No. 09-2249, Defs.-Appellees' Supp.App. 5.) The memorandum announcing the hotline provides: "Although we strongly discourage the use of supplements for many reasons, we understand that an informed decision is the best one." (Id.) The memorandum goes on to caution players, stating, "You and you alone are still responsible for what goes into your body. Using the Hotline will not excuse a positive test result." (Id.)

In 2006, several NFL players tested positive for bumetanide,3 a prescription diuretic and masking agent that is banned under the Policy. Policy App. A(II)(A). When Dr. Lombardo was alerted to a possible connection between the positive results for bumetanide and StarCaps, a dietary supplement, he informed Dr. Finkle. The StarCaps label does not disclose bumetanide as an ingredient. Dr. Finkle asked Dennis Crouch, Director of the Sports Medicine Research Testing Laboratory, to analyze StarCaps. On November 14, 2006, Crouch emailed Dr. Finkle and Dr. Lombardo, informing them that StarCaps contained bumetanide. Birch was also made aware of this.

On December 19, 2006, the NFLMC sent a memorandum to the presidents, general managers, and head athletic trainers of all NFL teams entitled "Dietary Supplement Endorsement Prohibition." (Id. at 6.) The memorandum provides: "Effective immediately, please be advised that Balanced Health Products, which distributes StarCaps, has been added to the list of companies with which player endorsements or other business relationships are prohibited." (Id.) The memorandum does not state StarCaps was banned under the Policy, that StarCaps contained bumetanide, or that StarCaps contained any banned substance. (See id.)

On December 20, 2006, Stacy Robinson, the Union's Director of Player Development, sent a memorandum to all NFL agents. (Id. at 7.) The memorandum states: "Please be advised that effective immediately Balanced Health Products, which distributes StarCaps, has been added to the list of prohibited dietary supplement companies. Players are prohibited from participating in any endorsement agreements with this company or using any of their products." (Id.)

Dr. Lombardo did not refer any player who tested positive for bumetanide in 2006 for discipline. Sometime in late 2006 or 2007, Birch communicated with Dr. Lombardo about Dr. Lombardo's duties under the Policy. Birch informed Dr. Lombardo that if a player tested positive for a banned substance then, assuming the player had no therapeutic reason to be taking the banned substance, the player must be referred to the NFL for discipline.

In July and August 2008, players in the NFL submitted to random testing for steroids and other substances in accordance with the Policy. In total, five players — Kevin Williams and Pat Williams of the Minnesota Vikings, and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints — tested positive for bumetanide. In late September and early October 2008, all of the players were advised by letter that their positive results were a violation of the Policy and that a suspension without pay of four games was being imposed for the violations. Pursuant to the Policy, all five players appealed their suspensions, and their appeals were consolidated.

Beginning on October 23, 2008, Jeffrey Pash, Vice President and General Counsel of the NFL, met with representatives of the Vikings three times "in the context of what [he...

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