May 8, 2017
Sheilla Dingus
@SheillaDingus
Last week Lane Johnson filed a reply in response to the NFLPA’s opposition to vacate an arbitration award in which he was suspended for ten games for violating the collectively bargained policy on performance enhancing substances. The lawsuit, which was filed in the Northern District of Ohio in January, has become increasingly contentious as the case has progressed.
Johnson believes his problems stem from the fact that he was critical of the players union for providing players an unreliable app to aid them in identifying banned substances and then asserting that the union fails to stand up for the players when a green check marked supplement turns out to contain a banned ingredient that’s is not listed on the label.
Every substance I’ve taken has been approved by the Aegis Shield app, which the NFLPA gives us. That’s the only thing the NFLPA gives us to test our products.
Johnson isn’t alone. In December 2015 Oakland Raiders’ Pro Bowl fullback Marcel Reese expressed similar dismay with the difficulty of determining what substances are allowable. In an interview with Pro Football Talk he stated:
I have NEVER, and would NEVER, ingest any banned substance that would result in a failed drug test. What I did consume was a natural plant root extract by the name of ‘Umcka,’ which is a completely safe substance that is clearly legal by NFL policy, in terms of being acceptable to consume. What I didn’t know is that this plant root, once ingested in the human body, converts to the substance ‘metylhexanamine,’ which is a banned substance by NFL standards. . . As the NFL stated in their final judgment of our appeal: ‘The NFL does not contend that Mr. Reece intentionally violated the policy, and it is clear the Mr. Reece did not intend to do so. . . .’
Let me be clear here — the Arbitrator, the NFL and I all agree, and have concluded, that I have never ingested ANY banned substance whatsoever, for any reason, especially not to enhance my performance. Unfortunately, due to the NFL’s strict liability policy and a completely flawed system there is nothing I can do to change this unfair outcome.
Other players who argue that they took supplements or even medications prescribed by their doctors which they believed were approved only to face suspensions when an unknown or unlisted banned ingredient was revealed in a drug test include Byron Chamberlain, Rob Ninkovich, and Jerrell Freeman, just to name a few.
How are players to discern what they may legally consume? Apparently one direction is for players to seek NSF certified products, since NFS certification is viewed as the “gold standard” for scrutiny. Seven year NFL veteran Logan Paulsen said last year, “You go to a gas station and you’re hungry. There’s a protein bar there — not NSF certified. You have to be really careful.” Not every legally acceptable substance is NSF certified though. I’d be wiling to wager that all but the most disciplined of players have at some point in time consumed that protein bar and hoped for the best. And in most scenarios, they weren’t immediately tested and came out okay, but it seems to be a roll of the dice at best.
The same Chicago Tribune article which contained Paulsen’s comment states:
Players have access to a hotline to check if a supplement contains ingredients on the banned substances list, an NFLPA spokesman confirmed. The union also has a smartphone application that promotes its messaging about how to avoid banned substances. . . A player can scan the barcode of a supplement for feedback. A green marking indicates that according to the label’s declared ingredients there are no substances on the league’s banned substances list. A yellow or red label indicate otherwise.
This brings us back to Lane Johnson’s argument. He relied on the app and the supplement he took was marked green. Then he was informed that his urine sample tested positive for a banned substance.
Every substance I’ve taken has been approved by the Aegis Shield app, which the NFLPA gives us,” Johnson said. “That’s the only thing the NFLPA gives us to test our products. I feel like the players have no rights. The supplement industry is not regulated, so you do not know what’s in it. That’s hard to believe, coming from a second-time offender, but I want that to be clear — that the NFLPA does not stand up for players. They don’t check the supplements. They give us an app. Then if you call and ask them if you test positive for something they approve, it doesn’t matter.
George Atallah, the NFLPA’s assistant director for external affairs refuted Johnson’s statement in an email to ESPN. “Johnson ‘is mistaken. NFLPA does not approve supplements. While the App may have listed it with a green check, players are reminded within the app, at team meetings and as part of the policy that a) supplements may contain stuff not on the label and b) there is still strict liability for putting it in your body if it contains something not on the label.’”
As confusing as this appears to be, it is not, however the basis of Johnson’s lawsuit. Johnson believes that the larger issue is how his union, because of his outspokenness, has failed to support and represent him, and perhaps even colluded with the NFL in order to silence his voice. While collusion in accordance with its legal definition is extremely difficult to prove in a court of law, he would not be the first player to feel that powers that be were working together to keep him silenced. Marijuana advocate Eugene Monroe soon found himself out of a job when he spoke openly about the need for cannabis as an alternative to league endorsed opioid and NSAID pain relievers and anti-inflammatories. Others believe that Colin Kaepernick is viewed as unemployable because of the controversy surrounding his anthem protests.
But. . .
As we’ve seen in Brady, Peterson, Wideman, and other cases where a sports league’s arbitration process is appealed, disagreement with the arbitrator’s award, and even principles of fundamental unfairness are insufficient to vacate an arbitrator’s decision if it is at least loosely derived from the CBA negotiated between labor and management. A serious procedural defect in the arbitral proceedings must be demonstrated to the court – and this is what Johnson attempts to prove in his appeal.
Johnson believes the bristling of the NFLPA to his criticism led to just that.
Among the allegations Johnson has asserted in seeking vacatur of the arbitration award which resulted in his suspension are that only two arbitrators were seated for player appeals in spite of the CBA stating that the panel would consist of three to five; the neutral arbitrator who heard his appeal was not a true neutral in that his firm has done other work for the NFL (which was not disclosed to him prior to the arbitration), he was denied sufficient discovery to defend himself, and his “B” urine sample was improperly handled.
While it is not unusual for a player to appeal league discipline, this is normally done in conjunction with the Players’ Association; suing one’s own union is unusual to say the least, but it’s not unprecedented. Earlier last year Mike Pennel of the Green Bay Packers filed a similar lawsuit in the Northern District of Ohio against both the NFL and NFLPA regarding his second suspension for violation of the league’s substance abuse policies.
While performance enhancing substances and substance abuse are handled under two different provisions both policies state
that three to five arbitrators will be available to hear player appeals. Only two arbitrators, James Carter and Glenn Wong were jointly selected to comprise the appeals panels handling both areas of arbitration by the NFL and NFLPA who both state that they have mutually agreed that two arbitrators are sufficient. Pennel argued that this agreement was not brought before the players and therefore not agreed to by the players as a change to the collective bargaining agreement. To put a quick end to Pennel’s lawsuit, the NFL and NFLPA appointed a third arbitrator to the substance abuse appeal panel and the parties agreed to a settlement in which Pennel’s suspension was reduced from ten games to four.
This argument is the focus of Johnson’s latest response to the NFLPA’s opposition motions. Johnson’s counsel, Stephen Zashin, who also represented Pennel says in spite of the impropriety with Pennel’s case and the last-minute addition of an arbitrator to the substance abuse appeals pool in order to put a quick end to litigation, the defendants made no similar addition to the pool of arbitrators to hear PED arbitrations. While defendants NFLPA and NFL agree this was a mutual decision, no evidence has been produced that this change was presented to the membership of the players’ union for approval, nor does any written record of the agreement appear to exist.
Judge John R. Adams, who presided over Pennel’s case seemed to be disturbed by the presumably back-door agreement between the league and players’ union. A telephone conference transcript has been presented as an exhibit in Johnson’s case; it reads in part:
THE COURT: Was the modification reduced to writing?
GREENSPAN (for the NFLPA): I don’t know, Your Honor. I have not seen –
THE COURT: It’s not been reduced to writing? Was it submitted to the union’s leadership for their — I assume the union itself has some sort of committee or a membership might have a voice in this, this modification, given the stakes at issue here for players?
GREENSPAN: Your Honor, I don’t know the answer, in terms of the internal union logistics. The union has a board of player representatives. It’s sort of equivalent to the board of directors of the union. I do not know whether this issue was raised to them. I can only tell Your Honor that this status quo has existed both under the drug policy and the performance enhancing drug policy for a couple of years.
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THE COURT: I am a bit concerned about this process that you apparently have adopted that strikes me as inconsistent or contrary — or a modification of what is clearly set forth in the agreement between the NFL and the Players Association, and how you would go about doing that without some formalities, something in writing or something of that effect, because, again, I think it’s relatively clear, there’s certainly good argument that the implications for a player, a suspension and the right to a fair hearing would Certainly caution the appropriate, again, formalities be filed.
So I am a bit concerned about whether or not this, again, this, if you want to call it a gentleman’s agreement, that no one has been able to tell me has been formalized, agreed to in a formal fashion pursuant to the union’s, I assume, bylaws and what have you. The player certainly is free to raise it. He may not have raised it before. Others may not have raised it. They may not have been aware of it. So I am troubled by that.
From the initial filing of Johnson’s case legal experts have opined that Johnson has a uphill battle before him in overturning the arbitrator’s decision, but with the evidence, and apparent concern of Judge Adams as presented in Johnson’s latest brief, I wondered if perhaps the tide might be turning. For answers, I turned to noted business litigation attorney and arbitrator David Evans of the Boston law firm Murphy & King.
Evans agreed that Judge Adams, in the Pennel case, did seem concerned at the lack of a paper trail but emphasized, “I don’t know whether it was just playing devil’s advocate or whether he thought it was important to the case.” He added, “I think that the procedure and the CBA was apparently relaxed in some informal way, and that was what was troubling to the judge in the Pennel case. It seems at the minimum it was sloppy, that it should have [been] documented and gone through the proper procedure for changing a provision of the CBA. But at the end of the day the parties to the agreement have confirmed in every which way they can to the court that’s what happened, and that there was no need to have a three panel set of arbitrators available to hear these cases because there aren’t that many cases.”
Evans feels that Johnson’s challenge in this respect is to show that he suffered harm from the apparently relaxed standards of policy modification and not the suspension itself. “What we had here was more than sufficient to accommodate his particular hearing so there’s no harm that he can demonstrate by a failure to have an extra guy on the bench,” Evans said.
In my initial article about this lawsuit, I consulted Evans for his insights on the case. When I asked his opinion of Arbitrator James Carter, who presided over Johnson’s arbitration, he referred to Carter as “a well-known and respected arbitrator.” He also believed the “challenge to Carter’s independence because his law firm does NFL work will also fail because he was approved for the panel by the NFLPA.” I wondered if any later case filings might have changed his opinion in this regard.
He reiterated that both James Carter and Glenn Wong are “highly respected sports arbitrators,” but said, Johnson’s “real harm” argument rests in the fact that the NFLPA, who was certainly aware of Mr. Carter’s position at the Wilmer Hale Law Firm, which has, as Johnson claimed, done other work for the NFL, creating a conflict of interest, accepted him as a member of the arbitration panel. Thus far in the proceedings, Carter’s neutrality has been challenged, but not as Evans suggested, through the NFLPA’s role in Carter’s selection. But Evans also stated that he’s not certain this will be enough of a factor, “maybe in retrospect some people think maybe they should pick different people. It happens all the time.”
As I reported in February a battle for venue has been ongoing. Since Pennel saw some success in Ohio it seems obvious why Johnson filed his case here, and because the NFL is headquartered in New York and has seen much success in New York courtrooms, both the NFLPA and NFL wish to see the case transferred to the Big Apple. Without rehashing the arguments in favor of either venue, I wanted to find out Evan’s impression of where the merits of the case will eventually be decided. “A lot of times venue questions are decided based on where the parties live, where do the likely witnesses live, where did the events occur – that sort of thing,” he said, and “Ohio’s not particularly convenient for everybody in that sense,” adding that because of the fact that both the NFL and NFLPA do business there it’s not out of the question. “The way I’m reading what the judge has done here – I don’t think she would have invited all this briefing on the merits if she was going to transfer.” He felt it would be “discourteous” of the judge to require all of the work she’s requested in her briefing order and then transfer the case. Because of this, he feels there’s a strong chance the case will remain in Ohio.
In spite of all this, Evans still believes that Johnson faces a major challenge in proving that he has suffered harm because of the procedural defects he’s identified in the case as opposed to the fact that he was suspended or that the manner in which the arbitration was conducted would have produced a different outcome had these defects not taken place. “I think you know Johnson’s got a pretty tough case on the merits,” he said, “just given the standard that’s applicable as confirmed in the Deflategate case and the Adrian Peterson case. There isn’t a tremendous amount of latitude for vacatur of an arbitration award on its merits, so the findings and conclusions of the arbitrator, I think are basically unassailable under these circumstances.”
Another issue I brought up with Evans was that I found it peculiar and somewhat unsettling to see Jeffrey Kessler sitting at the other side of the table working with Daniel Nash in opposition to a player. In Johnson’s case it seems the NFLPA has been the more aggressive opponent with NFL counsel content for the most part in following the NFLPA’s lead. “Yeah, the Players’ Association- what’s really between the lines is that one of its members is essentially accusing it of them of letting down its membership. . . That’s why they have expressed outrage at that kind of procedural objection, so the Players Association is indignant that he suggested they were not diligently representing his interest.” He also felt that should Johnson find himself in any future “mischief” that the union would be “duty bound” to represent him and should they fail to do so he would have a valid argument, but at the present, he sees the current action as a long-shot.
Toward the end of our discussion, Evans brought up tennis star Maria Sharapova as an example of how honest mistakes can still invoke suspensions; “[S]he took something that was on the list that was allowed and then went on to the banned list. And her agent apparently never checked the banned list after it was updated so she kept taking it – some sort of hormones for a medical condition that she had.” He emphasized that across sports the consensus has been that it doesn’t matter how or why a substance has entered the body, it’s the athlete’s responsibility to monitor everything ingested to prevent a problem. The only hypothetical that Evans could imagine where a player might be able to avoid responsibility was “Maybe if you were kidnapped and they jam something in your mouth or something. But generally you have to be alert to it and I guess if there’s any question you get it tested. . . make sure it’s approved.”
Should Johnson manage to prevail, it’s possible through examining actions of the union as well as the league he’s opened a door for other players who may find grounds on which to challenge discipline, but whether or not Johnson is able to convince the Court that he was harmed by the procedural defects in his arbitration, the issues of how various drugs are addressed in sports is not one that will disappear any time soon.
Many NFL players use supplements as a means of combating inflammation that is inherent to the game of professional football, perhaps as a method of minimizing use of league approved opioids, NSAIDS and other drugs that the NFL provides to players to keep them in the game, maximize performance and in some cases enable performance when it would likely be impossible without some method of pain management. Numerous former players are advocating for the use of marijuana as a safer method of managing pain and inflammation and the NFLPA is asking the league to reexamine policies related to its use.
While it’s doubtful anyone would want to see the shameful types of state abuses like the decades long doping of East German athletes, nor the flagrant and blatant violations of those such as Lance Armstrong, it seems a common sense solution must be sought in order to prevent minor and accidental offenders from suffering such grave consequences. For now, players are caught in a murky Netherworld when it comes to balancing legalities, heath, and longevity on the field of play.
