Drug-testing policies throughout the world of sports could be jeopardized if a suit filed by two Minnesota Vikings defensive linemen, attempting to overturn an NFL doping suspension based on state law, is successful, legal experts agree.

The case has such enormous implications that Major League Baseball, the NBA, NHL and U.S. Anti-Doping Agency, which polices American Olympic sports, have joined the NFL in arguing that collectively bargained protocols — protected by U.S. labor law — should override various state drug-testing statutes.
Vikings tackles Kevin Williams and Pat Williams, who are not related, contend that, as employees of an organization based in the state of Minnesota, they are protected by Minnesota law regarding how and when drug screening is administered — and that such law therefore pre-empts the NFL’s substance-abuse system.
“I think there is a pretty strong argument the NFL has,” said Matt Mitten, director of Marquette University’s National Sports Law Institute. “They’re saying, ’We’re a national sports league, so there should be one body of uniform rules.’
“But you don’t know. The court may say there’s some precedent out there and that the policy negotiated in the collective-bargaining agreement doesn’t necessarily trump the applicability of state law.”
In that case, Mitten said, it would “really upset the apple cart” of current anti-doping efforts in sports.
“Say an NFL player then tested positive in Wisconsin. His lawyer would comb the Wisconsin state laws to see if something there pre-empted (the league regulations). And then the NFL doesn’t have a uniform system anymore.”
With teams in 21 states, the NFL could be faced with 21 different anti-doping standards.
“It’s a very important issue of which law governs,” Mitten said.
Specifically, the Vikings’ defensive linemen were found to have ingested bumetanide, a masking agent for steroids, punishable by a four-game ban, though both contended the substance was taken inadvertently in a weight-loss supplement whose label did not specify the presence of bumetanide.
Furthermore, they said the NFL knew the weight-loss product, StarCaps, contained bumetanide and failed to properly advise them, though the league said a strict liability provision — that players ultimately are responsible for what is in their systems — is included in the CBA.
But, the larger issue is whether the NFL, and other sports organizations, can impose their drug-testing programs uniformly on employees. Northeastern University law professor Roger Abrams, currently working on a book about what he considers the 10 most important sports law cases, said a legal victory by the Vikings players would mean pro leagues “would be in trouble. They would have to deal with these laws, state by state, and it might encourage Congress to pass a uniform national law. When, of course, it’s not as if Congress has nothing else to do right now.”
At first glance, Abrams acknowledged that, “because the collective-bargaining agreement is protected by federal law, the state laws are pre-empted. As the NFL argues, federal law is supreme.
“But it gets back to the messy facts that the NFL knew” the banned substance was contained in StarCaps “so it looks like they set a trap for the players, even though it wouldn’t make any sense that the league or team would want to lose these players for four games. This whole scenario only arises because team sports are unionized.”
As Mitten noted: “The commissioner and the club can’t just say, ’This is what our drug-testing will be.’ They have a duty to bargain in good faith over this. The argument of the NFL is that they’ve done that, and that the CBA should trump any inconsistency and there is no room for individual states to govern.”
One way the NFL could prevail, Abrams said, is on the basis of being a “private, voluntary association. It’s not the government. So it’s like, if you’re thrown out of membership in the Elks Club because you didn’t give the secret sign, and you file a suit, the court says, ’Gimme a break! It’s the Elks Club!’ You joined and you go by their rules.
“But one way you win in a case against a voluntary private association is that you say they violated an express law. This is not easy.”