♦♦
October 6, 2018
Sheilla Dingus
On January 6, 2016, Philadelphia Eagles OL Lane Johnson filed a lawsuit against both the NFL and the NFLPA in the Northern District of Ohio. The lawsuit contained many allegations of impropriety as to the manner in which his PED testing was done and the lack of support and even resistance he received from his Union. An order published October 3, concludes most of his case.
Johnson alleged that his testing went beyond the reasonable cause provisions in the NFL’s Performance Enhancing Substance Policy, and after being improperly tested, experiencing mishandling of his urine sample, and what he felt was an arbitrary procedure, he criticized the NFLPA for failing to support him. He stated that he relied on the Aegis App provided by the PA when choosing supplements and the supplement that caused him to fail his urinalysis was listed with a green checkmark in the app. The Union pushed back at him claiming that he could have had the supplement tested for banned ingredients and that he alone was responsible for anything that found its way into his body.
As negotiated in the CBA, an arbitration took place to decide Johnson’s appeal, but from there, things continued to take ugly turns. Johnson learned the PES Policy had been revised but the union refused to provide him with a copy of the revisions. The pool of three to five arbitrators negotiated in the CBA consisted of only two arbiters, one of whom was unavailable, leaving by default, his appeal to James Carter of the law firm Wilmer Hale. Johnson reluctantly agreed to have his appeal heard by Carter, because no one else was available, however, he had serious misgivings because of work Wilmer Hale has done on behalf of the NFL. Unable to trust that the NFLPA would fairly represent him, Johnson hired attorney Steve Zashin to plead his case. Zashin had recently represented another player, Mike Pennel on a drug violation, reaching a settlement with the league.
On October 11, 2016, Carter affirmed the NFL’s decision and Johnson was forced to serve a ten-game suspension. After filing his lawsuit in Ohio with considerable motion practice taking place, the NFLPA, represented by outside counsel Jeffrey Kessler, successfully bid to have Johnson’s lawsuit removed to the Southern District of New York—one of the toughest venues in the country for a player to prevail due to unfavorable precedent from the Tom Brady Deflategate case. This highlights one of the many ironies in Lane Johnson’s lawsuit; A case supporting a player, which Mr. Kessler aggressively argued and won in the Southern District of New York, but was overturned by the Second Circuit was now the basis of his attack on Lane Johnson’s claims. On October 3, 2018, District Judge Richard Sullivan published a 22-page single-spaced, two-column opinion, dismissing all but one of Johnson’s claims against the union.
Here are some key takeaways:
Among the more serious charges filed by Johnson were those of modified PED policies recognized in the collective bargaining agreement that had been altered without notification to the membership including himself.
While Judge Sullivan disagreed with Johnson on the relevance of these deviations to his attempt to vacate his suspension, Sullivan’s examination of the case confirmed that Johnson’s allegations were correct. This is an issue that should be of concern for the entire union membership.
♦♦♦
As noted in the opinion, none of the modifications Johnson revealed in his lawsuit were ratified by union membership, and the NFLPA internal constitution provides that “ratification is required in order to amend a Collective Bargaining Agreement during the period of its agreed duration.” Judge Sullivan notes, however that that same constitution has a back door in which the NFLPA, presumably through either the executive director, or possibly the executive committee can “enter into side letters and/or other documents including the resolution of grievances, which clarify or interpret the provisions of any existing Collective Bargaining Agreement.” This back door written into the constitution legally permitted the union to make the unrevealed changes that Johnson complains of.
This should be no surprise; however, the constitution was modified as to 
allow the executive committee to bypass a general election of the executive director by a private vote, excluding the majority of the union’s membership.
♦♦♦
The first deviation identified and objected to by Johnson was a deviation replacing the agreed upon chief forensic toxicologist which was precipitated by his retirement. Sullivan ruled that the NFLPA was acting within acceptable parameters in replacing him with the directors of the UCLA Olympic Analytical Laboratory and that it did not undermine Johnson’s arbitration, but rather permitted it to take place without an extensive delay. While that provision might seem reasonable and easy to swallow, it is perhaps the least grievous charge that Johnson pled in the lawsuit.
Because Johnson had a previous violation, he had been placed in a two-year reasonable cause testing program which enabled the league to test him at any time for a prohibited substance. Johnson felt he’d completed the two years and then as soon as the two-year or two full season time period was up, he was immediately tested for no discernable reason, and never received a release from the testing as he understood was the agreed-upon rule.
When Johnson’s arbitration took place, Arbitrator Carter ruled that the start date was when a player was removed from the random testing pool, which for Johnson occurred a month later.
Judge Sullivan wrote, “to be sure,” that the section of the policy in question was “not a model of clear draftsmanship.”
Unfortunately for Johnson, however, he also found that since the provision, even with the less than clear draftsmanship was applicable to all players, and therefore not arbitrary as Johnson had alleged.
The fact that some of the improprieties that Johnson objected to and identified in his lawsuit affected all players became a repetitive theme in the opinion and an obstacle to defeating the NFLPA. Confirmation of the glaring inconsistencies points to the fact that many of Johnson’s problems rested within a poorly constructed CBA.
Another point raised by Johnson was that the CBA called for a pool of three to five arbitrators, but only two were available, and because one of the two was otherwise tied up, Johnson was left with the only arbitrator left who could hear his appeal within a reasonable time frame. He also pointed out a conflict of interest with Carter’s firm, Wilmer Hale, which has done other work for the NFL. Like the unclear testing period date, however, Judge Sullivan ruled that these conditions applied to all players, and, again, were not arbitrary. He stated that a union has “wide latitude” in its representation of members and therefore found no impropriety in the deviation, choosing not to follow Ohio precedent set by Johnson’s lawyer in the Pennel case.
Because Johnson didn’t feel that his union had supported him but instead retaliated against him after his critical comments shortly after his testing sample came back positive, he didn’t feel they were inclined to investigate the deviation from policy regarding his “B” sample and hired his own attorney.
Judge Sullivan ruled that while the NFLPA didn’t contribute much, if anything to Johnson’s defense, the fact that he’d hired his own non-union counsel made his claim a hybrid claim and since his independently retained counsel performed the bulk of his representation, he wasn’t inclined to believe that the union “seriously undermined” the arbitral process.
While Johnson’s complaints regarding the union’s behavior stemmed from their unwillingness to answer questions and provide documents that Johnson needed to defend himself, Judge Sullivan didn’t feel that their actions undermined the arbitration. “Thus assuming that the union acted arbitrarily, discriminatorily, or in bad faith by not investigating or being ‘generally unsupportive,’ this claim must fail as a matter of law,” he wrote.
Because he didn’t see them as affecting the outcome of the arbitration, Judge Sullivan ruled in favor of the NFLPA’s motion to dismiss regarding Johnson’s “failure to provide documents” claims.
Johnson also claimed retaliation by the NFLPA because of his criticism of the union, and collusion between NFLPA counsel Heather McPhee and Kevin Manara with NFLMC counsel in making the process as unfavorable as possible for him. The allegations put forth would tend to support his view, but again, Judge Sullivan felt his argument fell short writing, “Where a plaintiff fails ‘to allege familiar aspects of a conspiracy such as who was involved and where these individuals met and conspired,’ the plaintiff fails to clear the Twombly threshold for surviving a motion to dismiss…Here Johnson at most identifies the ‘who’ of his alleged conspiracy, with perhaps a sliver of a ‘why.’ However, the complaint ultimately suffers from a dearth of concrete facts and therefore ‘stops short of the line between possibility and plausibility…” While it seems reasonable to believe that a plaintiff might need discovery to nail down the ‘where the individuals met and conspired” segment, he didn’t get a chance (at least as revealed by public documents) to conduct discovery on the defendants.
Johnson did prevail on one indisputable point, however. The excerpts below describe how the NFLPA refused to provide documents to Johnson in violation of both the law and their own policies.
While Steve Zashin, Johnson’s lawyer prevailed in the Northern District of Ohio on the same claim in which the NFL and NFLPA failed to carry out the terms of the CBA regarding the correctness of the arbitration when the NFL and NFLPA failed to appoint the required number of arbitrators, the Southern District of New York is a very different place. When the NFLPA succeeded in having Johnson’s claim removed to SDNY, the odds of Johnson prevailing dropped considerably.
Indisputably, SDNY is the NFL’s preferred venue. They achieved very strong precedent in the Second Circuit in their win against Tom Brady and the NFLPA in the Deflategate case, many shades of which are echoed in Judge Sullivan’s opinion.
As Judge Sullivan noted above, in a labor arbitration context, the Second Circuit doesn’t apply the principles of “fundamental fairness” and “evident partiality” as directed by the Federal Arbitration Act (FAA) but rather seeks all guidance from the Labor Management Relations Act (LMRA) granting an almost impenetrable fortress around labor arbitrations. In lay terms, the philosophy tends to be, “if you struck a lousy bargain, don’t expect our court to fix it.” Had the Tom Brady or Ezekiel Elliott cases been tried in a different forum, there’s a good chance the outcomes would have been very different. In both cases, the “fundamental fairness” of the proceedings was highly questionable, and the conduct of the league-friendly non-neutral arbitrators reeked of “evident partiality,” with lower courts holding in their favor. Likewise, Johnson might have seen a different result had he prevailed in keeping his case in Ohio.
In this context, it rarely matters if the facts are in your favor, and on that note, it’s remarkable that Johnson achieved a victory on the withheld documents. Unfortunately, in prevailing on that claim alone it’s questionable as to if he will see any relief granted outside presumably gaining possession of documents that will no longer help him. According to the Second Circuit, the arbitrator can have gotten the facts all wrong and shown complete bias toward the other party, but as long as he finds some basis within the CBA to justify his decision, the arbitration will stand.
Here’s the conclusion of Judge Sullivan’s opinion:
Unless union workers have diligently bargained for grievance procedures which grant due process and expand on those rights in great detail, to which there can be little dispute regarding the language of a CBA, it’s unlikely they will find relief in a court of law especially one with precedent in line with the Second Circuit. Employers in most sectors of business, who typically have greater leverage than their workers generally find ways to limit and deny due process through their arbitration agreements. Often unions don’t fight this aggressively enough because they are more keenly focused on wages and benefits that will affect all employees and not just those who find themselves in the unfortunate position of having to file a grievance with their employer.
One small carve out that some courts have recognized is that if an employee has a claim of criminal conduct which violates state or federal laws, that these statues override a CBA. Recently a painkiller abuse lawsuit filed by Richard Dent against the NFL got a reprieve on these grounds in the Ninth Circuit after being dismissed in the Northern District of California. In this instance, the Ninth Circuit found that a CBA can’t bargain or cover for conduct that is otherwise illegal.
While Johnson had sufficient reason to be aggrieved of his union, winning a lawsuit against one’s labor union in court is a difficult matter. Generally, a union can’t be held liable for infractions that typically are the responsibility of the employer or a decision rendered by an arbitrator. To prevail, a union worker must prove that his union ignored his grievance and failed to represent him. In Johnson’s case, NFLPA attorneys were appointed so this argument is murky, even if their defenses were not the vigorous advocacy he should be able to expect from his attorney and his union.
Had the NFLPA discriminated against Johnson to the degree that they refused to acknowledge his complaints and perform at least a cursory investigation, then he would have had solid grounds to file a grievance against them with the National Labor Relations Board (NLRB), and as a precautionary measure, he did this. Probably realizing that the union’s conduct was borderline regarding NLRB standards he hired his own attorney and prepared for his arbitration and civil case. He probably realized that in a union context, when a union files a grievance on behalf of a member and acts as their sole representation, the individual no longer controls his lawsuit, but rather the union. Had he relied completely on union representation he knew the union would have the authority to withdraw his complaint or accept a settlement that he might not agree with. This contrasts with private attorney representation, where an attorney cannot agree to a settlement without the expressed consent of the plaintiff.
In retaining private counsel that he felt confident would represent him more vigorously, his grievance became a hybrid claim as Judge Sullivan noted, with the outcome not solely dependent on the union’s actions. Johnson faced a catch 22 in this respect, with no clear path of relief. In Judge Sullivan’s view, Mr. Zashin’s zealous advocacy for Johnson offset the failures of the union on his behalf.
While the NFLPA won the lawsuit, their short-sighted and heavy-handed approach may prove costly in the future. Instead of using inside counsel for a case in which legal precedent worked in their favor, they brought in their top-gun outside counsel Jeffrey Kessler, a highly respected attorney who has battled brilliantly on behalf of the union and its players in past lawsuits.
While I have no inside information, it stands to reason that the PA has Mr. Kessler on retainer and called for his representation when the lawsuit was filed—and while Mr. Kessler likely was obligated to represent the union—it was probably an awkward position for him, not to mention a bad look for the union to use its best weapon against a one of their own members. More importantly, though, this shortsighted approach will come back to haunt the NFLPA in the future.
I predicted this would become a problem after Mr. Kessler filed his first motion in opposition of Johnson.
Early in Johnson’s lawsuit, Dallas Cowboys RB Ezekiel Elliott found himself adversely impacted by a questionable arbitration which he challenged, represented by Kessler on behalf of the NFLPA.
It didn’t take long for my prediction to come true.
NFL arguments in Elliott using Kessler’s briefs in opposition of Johnson.
In having to oppose Johnson, the NFL’s attorneys took Kessler’s own remarks from arguments against Johnson and turned them against him along with Elliott and the NFLPA in a brief moving for dismissal.
Since courts generally disfavor counsel flipping positions on an issue, it is all but guaranteed that NFL counsel have carefully reviewed and stashed Kessler’s arguments against Johnson for recycling against the next player who seeks his day in court.
Judge Sullivan made a single notation in his opinion that could be helpful to a player with a similar claim in the future. While he pointed out that no court has addressed the issue to date, using the hypothetical that a player relies on union representation and still faces the same obstacles that Johnson found in his path, a less deferential standard of arbitral review might be proper. It 
seems like a risky proposition to allow a party whom you believe doesn’t have your best interest in mind to serve as sole legal counsel, but hypothetically, if Johnson had used NFLPA counsel during his arbitration and then hired Zashin, to represent him when appealing to district court, the result may have been somewhat different. There’s really no way to weigh the situation since there is no existing precedent, but Judge Sullivan’s note could conceivably be perceived as a possible roadmap to loosening the grip of arbitral deference.
The most reliable method of relief, however, lies within the structure of the CBA. The backdoors for side agreements as noted in Judge Sullivan’s opinion need to be closed and any issue impacting how the CBA will be interpreted should go before the entire membership of the union. If this is considered to be too cumbersome, then at minimum, the process should be completely transparent. Notice should be issued to all members as soon as a letter of clarification or modification has been made, with any union member having standing to challenge within a reasonable time period, staying the changes until the issue can be presented to the membership for a vote. This should not be delegated to the executive committee as took place with NFLPA elections. At a minimum all members should be noticed and should an objection arise, all player reps should be included in the review of the matter and tasked with approval—not just a small, select group.
The NFLPA also needs to look at how they will negotiate away from the zero-tolerance policy for performance-enhancing substances. Johnson, along with numerous other players have claimed their ingestion was accidental and due to an unlisted ingredient omitted from the product label.
I spoke to some former players to get their takes on the use of PEDs in pro football and was told that there are guys who do try to game the system, but there are others who are simply punished for lack of diligence or reliance on various unreliable sources such as the Aegis app that the NFLPA provides to players which proved problematic for Johnson.
Others have taken prescription drugs prescribed by their doctors only to learn later that an unlisted ingredient was on the banned substance list, or worse found to be an unidentified ingredient that might possibly mask other substances. According to spotrac 20 players were suspended in 2017 for performance-enhancing substances. So far the statistical website reports 17 suspensions for 2018. One of the 2018 suspensions is that of Corey Liuget, who claims his trainer injected him with what was supposed to be a non-prescription medication that turned out to be tainted. He is currently suing his trainer for introducing the substance into his body. A few years back a player failed his urinalysis because he ate some beef while vacationing in Mexico that he later learned was contaminated with hormones sometimes given to cattle. Players were then warned to avoid eating meat when traveling overseas.
A standard should be established to determine, based on the substance and its prevalence of illicit use (It’s hard to imagine many condone the use of anabolic steroids) or if it’s generally a benign ingredient that might possibly be perceived to give some type of performance advantage. There should also be a way for a player to find recourse if he feels that he can prove the contamination was accidental, based on a more probable than not evaluation by Commissioner Goodell or his designate, and if appealed, the arbitrator.
I inadvertently ingested a PED! Fortunately for me, there were no consequences.
I was surprised to learn that a supplement that I use fairly often was on the banned substances list. NO-XPLODE is an energy shot, that has a good bit of caffeine and a few amino acids. I use it to stay alert when traveling or experiencing a mid-day slump. In no way has it bulked me up, caused me to lose or gain weight, or otherwise made me more athletic that I’d have been without it. The sole effect is that of alertness, which I suppose could enhance performance, but then again, so does consuming food, water, or breathing air if you get down to the nitty-gritty.
It’s highly unlikely that players will be able to remedy in the courtroom what they fail to remedy at the bargaining table. They have much less leverage than the franchise owners, and while union leadership has been urging players to save for a strike or lockout in 2020 it remains to be seen in their resolve will hold and what issues they consider to be non-negotiable.
History has indicated that players who typically have short careers tend to focus on the here and now and strive to obtain as many dollars as possible in their brief time in the NFL. They’ve also managed to negotiate some substantial retirement and disability benefits for their post-career lives while at the same time, failing to ensure those benefits are managed equitably, leaving a nightmare scenario for many retirees who no longer have a seat at the table but find themselves bound by the CBA nonetheless.
Criticism of Le’Veon Bell by teammates and other players as he holds out to avoid playing under the franchise tag makes the question of cohesion among the players a major concern. Theoretically, at least, other players should support players who push against a system stacked against them rather than falling into the fandom mentality of the team taking priority over individual needs. When more equity between management and labor is achieved both can co-exist more peacefully, enhancing the strength of teams, and that, in and of itself is a bargaining chip the players can use if they will seize upon it. Until they do leverage every chip at their disposal, it’s unlikely that much will change regarding player outcomes in the courtroom
