Judges rules against Vikings' Williamses, but case far from over

McClatchy Newspapers

MINNEAPOLIS — The question on many Minnesota Vikings fans' minds — Will Pat and Kevin Williams be on the sidelines to start the season? — still has no answer.

Hennepin County Judge Gary Larson ruled Thursday they can be forced to serve four-game suspensions even though their employer, the NFL, violated their rights under state labor laws.

Still, Larson is considering a request from the players that he allow them to continue playing while they appeal. That ruling is expected in a couple of weeks.

The state Court of Appeals will take up the case next. It is expected that case will be heard before the season begins.

The saga began July 26, 2008, when both players tested positive for a banned diuretic. Their suspensions, announced later in the season, have been on hold pending resolution of the legal matter.

The trial took place over five days in March.

Gabriel Feldman, director of the Sports Law Program at Tulane University Law School in New Orleans, called the ruling a "loss wrapped inside a win for the NFL."

In seeking to suspend the players, what the NFL really wanted was for the courts to say the league isn't subject to state drug laws and testing. "They got the opposite," Feldman said.

Peter Ginsberg, the players' lawyer, called the ruling a mixed result. "No employer can stand above the law, including the NFL," he said. "We are obviously disappointed that despite violating Kevin and Pat's rights, the NFL still is threatening to suspend them."

NFL spokesman Greg Aiello, in an e-mail, wrote: "We intend to continue to administer a strong, effective program on performance-enhancing drugs that applies on a uniform basis to all players in all states."

Although the judge had harsh words for NFL executives, he determined the two players were not harmed by the league's violations of Minnesota labor law.

The two defensive linemen tested positive for the diuretic Bumetanide, an unlisted ingredient in the over-the-counter supplement StarCaps. Diuretics can be used to mask steroid use, although neither player is accused of taking steroids; both testified they were trying to lose weight quickly before training camp started.

The Williamses filed a lawsuit over their suspensions, much of which was dismissed. Larson sought to answer these remaining questions: Whether the Vikings or the NFL employ the players, whether the NFL leaked the results of their tests to the media and whether the players were harmed by the league's actions.

Larson determined that NFL drug policy administrators knew of positive tests among players for Bumetanide in 2005 and '06 and linked the substance to StarCaps. Larson found that Adolpho Birch, NFL vice president for law and labor policy, had been warned by NFL drug policy administrators that StarCaps contained a "secret" banned substance, Bumetanide.

But Birch made a "conscious decision" not to inform the federal Food and Drug Administration or any other agency. He also declined to disclose the presence of the substance to teams or players, Larson said.

Before 2007, players who tested positive for Bumetanide weren't disciplined. Birch, however, then directed drug administrators to start disciplining players who tested positive for Bumetanide even though he knew their use of it was inadvertent, Larson wrote.

"Birch was playing a game of gotcha," the judge wrote.

Larson also found the NFL violated the state law requiring that notice be given within three days to an employee who tests positive for a banned substance, but he said the players failed to prove they were harmed by the delay.

The judge also determined the Williamses failed to prove by a "preponderance of evidence" the NFL violated their confidentiality. The players said they learned of their positive tests from media reports in October 2008.

Birch determined on his own that no one from the NFL leaked the positive tests to the media after he conducted a "single-handed investigation" that was "highly suspect," the judge wrote. Larson said Birch reached a "totally unsupportable and unfounded conclusion" that a certain person outside the NFL leaked the information.

Feldman said the ruling opens the door for players to challenge suspensions in court, meaning costly litigation for the league. However, he said only two other states with NFL teams — Maryland and North Carolina — have similar employee drug testing laws. Those laws and Minnesota's conflict in only minor ways with the NFL policy, Feldman said, adding that it's still possible the league will try to seek an exception to the law from Congress.