An article in the sports section of The New York Times caught my eye over the weekend. In the print version of the paper, the headline was “Court Ruling May Undermine Antidoping Programs in Pro Sports ,” while the online version’s headline was Ruling May Weaken Doping Plans In Pro Sports. While headlines generally aren’t written by the reporters, they’re supposed to be catchy titles that reflect the main tenor of a story. And in this case, the headline does just that.
Generally speaking, when a reporter writes a story, he or she has and “angle” on the subject. Michael S. Schmidt’s angle on the story is pretty clear. From Schmidt’s perspective, the judicial ruling he’s talking about potentially puts a crimp in the way the National Football League’s anti-doping program (and by extension, a number of other anti-doping programs) are run. As he explains:
The ruling revealed a new door for athletes to challenge their doping suspensions: players in the N.F.L., Major League Baseball, the National Basketball Association and the National Hockey League may now turn to state courts, hampering the leagues’ abilities to discipline players.
Basically, what happened is that a three-judge panel of the United States Court of Appeals for the Eighth Circuit ruled that two members of the Minnesota Vikings can challenge their four-game suspensions in a Minnesota state court, and that the NFL can’t discipline the players until their challenges are heard. As Schmidt reports:
The ruling was a victory for the players because Minnesota state laws — and laws in about half of all states — are considered worker-friendly and say that an employee cannot be penalized for an initial positive drug test.
“Why should a football player not have the same rights that a person in Minnesota has?” said Mark S. Levinstein, a lawyer in Washington for the firm Williams & Connolly who has represented dozens of professional athletes, including Lance Armstrong. “The idea that the N.F.L. is more important than the views of state legislators is ridiculous. The N.F.L. is just confronting what most businesses have to deal with, which is different laws in different states. That is just how our country is set up.”
Good question. Why should a professional athlete not have the same employment rights as anyone else? One question that comes to my mind in reading the story is this: Does a player (or anyone, for that matter) give up their usual legal rights and protections by signing a contract? That is, just by signing an employment contract that sets up certain penalties for certain behaviors, does that mean someone has forfeited their protection under state or federal laws? In other words, can the NFL (or any other sports league or agency) establish a consistent set of rules to be followed everywhere, even if those rules contradict local or federal employment laws?
Not a question that is easy to answer. But more to the point, athletes are like any other workers, at least in one sense. We all have to earn a living. Some of us have the skills or knowledge to work as doctors, lawyers, accountants or other professional jobs. Some of us work in various trades. And some of us have the ability to make a living as athletes — at least until injuries or age or both take their toll. Whatever safeguards we have when we go to work, shouldn’t those same safeguards apply to all of us, or at least all who live and work in a particular city, county or state?
It’s interesting how the story is presented. Yes, the ruling might hamper enforcement of the suspensions until the case is settled, and it may change how the NFL and others are able to prosecute doping cases. Whether that really will undermine the league’s anti-doping program, however, remains to be seen.
It could also be that with this ruling, the door might actually be opening for improvements to the program. Improvements that address the employee/athlete’s rights, as well as the right of the league to punish those who use performance-enhancing drugs. It may open the door to better tests, as the current tests get challenged and the testing agencies have to prove the tests’ validity.
It’s said that there are no shortcuts to performance. You can’t become a top athlete without putting in the time and effort to build the skills, strengths and abilities needed for a given sport. On the other hand, current anti-doping programs, especially those based on the work of the World Anti-Doping Agency and their World Anti-Doping Code, do take some shortcuts. Strict liability — the idea that if it’s banned and it’s in you, you’re guilty — is a construction to avoid making the anti-doping agencies prove intent.
True, most athletes caught might claim that the exposure was inadvertent. (Which is exactly what happened with the two Minnesota Vikings players involved in this legal action, who took a supplement called StarCaps which contained a banned diurect called bumetanide.) And while that might make it tough for the anti-doping agencies or the leagues to prove guilt, isn’t that the way it should be? Shouldn’t the onus be on the one making the accusation to prove their contention?
Another shortcut taken by the anti-doping programs is the list of banned drugs. While some of the banned drugs no doubt provide a benefit, some are banned based on suppositions. Some medications are supposed to be masking agents, for example, and are banned. Whether there is any scientific proof to the claim is another matter. Some drugs are banned in any quantity, whether or not the amount found might give any sort of performance benefit. And some drugs that don’t provide a performance boost, but that are related to those that do, are banned.
The bottom line to this story, to me, is that the athletes are being given a chance to challenge their suspensions in a more neutral setting — that of a real courtroom. Certainly going to court may not be perfect, and no doubt many cases could boil down to a battle of the experts. But it seems to me that the ruling by the Appeals Court, while on the surface being a blow to the current system, has the potential to bring positive changes.
By having to prove that the tests mean what the testers say, and that the drugs detected actually confer a performance benefit, the overall program will get better. In the long run, the ruling by the Appellate Court may actually make anti-doping efforts stronger, by bringing a needed transparency to the system, and by holding the system accountable. Rather than creating what NFL attorney Jeff Pash called “a needless cloud of uncertainty over the way in which the program is going to operate,” opening up the system to court review may actually make the resulting program clearer and stronger.
Wow. I should probably read that article, but here’s some things that bubble up in my mind.
This sounds like one of those devil-in-the-details things. What exactly might these state laws cover and what is their intent?
Because, of course, the NFL or cycling or whoever can put whatever they need into the athlete’s contract. This is limited to some degree – you can’t put things into a contract that contravene the law. But exactly what this means depends on EXACTLY what the law and the contract say.
For example, might the state laws be limited in scope to only ILLEGAL drugs? Or could you at least argue vague language and intent of the lawmakers? Also, would the law only apply to suspensions without pay? It all comes down to money, but I see no reason why an athlete might be guaranteed the right to actually play. Suspend them from performance, continue to pay them, but be prepared to retroactively take that money back if they lose their challenge?
Ultimately I think that a carefully written contract could allow the NFL or any other organization to side-step this issue.
tom
Tom in all likelihood the NFL cannot avoid this problem via contract. I don’t know the Minnesota state law in question, but in general an employer cannot get around state laws protecting worker rights by denying these rights via contract.
Most likely the NFL will seek legislation on a national level providing a uniform set of rules governing the rights of athletes in drug testing, in order to pre-empt the Minnesota law and other similar state laws.
Rant, I don’t share your enthusiasm for the Minnesota state law ruling. It gives athletes in some states a competitive advantage over athletes in other states. Or if you give all athletes the same protections afforded to athletes in Minnesota, then you’re allowing the legislators in one state to effectively set the rules for all 50 states.
Larry,
That’s a good point. Different players in different states would have different rights. And that might be a competitive advantage. I can see the argument for establishing a federal rule governing the rights of athletes, given that they play in different locales. With just a few exceptions NFL players and teams travel out of state for each game, which then raises the question of which states’ employment and drug testing rules apply to each player. Only the rules and laws where the team is headquartered, or the rules and laws of the various states where those teams play?
Aside from that, however, anything that opens up the system to outside scrutiny seems like a good thing to me. Granted this is not a perfect situation with the court ruling, as it applies to Minnesota and not everywhere.
As was mentioned at the end of Schmidt’s article, going to Congress for assistance could mean that the league will have to give something (like greater transparency) in return for federal protection. Exactly how that plays out, we’ll see.
Along a similar vein, I came across this old article on Coyle’s Armstrong research, and the irony of these statements just clobbered me upside the head (applied to testing for PEDs)!
To be sure, errors do occur in data collection and analysis. This is not a crime and nothing to be ashamed of, however when other scientists challenge your findings because they think there might be an error somewhere, transparency should prevail, data should be provided, and the problem rectified. This is how we move our knowledge forward.
The fact is that subsequent to a complaint of scientific misconduct, Coyle has still not provided all the data. Why not? Just make it available and let’s have this debate out in the open. Or is there a reason not to? Moving even further along, not only does this science appear in a scientific journal, it then becomes a cog in a legal defence when it was incorrect all along (and to answer one poster, I don’t know why the data was not made available before – perhaps the legal team made the mistake of trusting the scientific process too much?)
Imagine these ethics/standards being applied to the Landis case/WADA/NFL/MLB testing and publishing of results. Maybe, just maybe someday we will actually come close!
Here’s the link to the article:
http://www.sportsscientists.com/2008/09/coyle-continued.html
I have had to deal a little with State law vs. Federal law concerning confidential information, but in our case Federal law was more restrictive than State law, so the answer was rather clear cut.
MikeG
If what the NFL or other sports organization seeks is uniformity across the states, couldn’t it apply the most liberal state rules league wide rather than try to deny them via the contract route? I.E., if the Vikings get a competitive break via the Minnesota laws, couldn’t the NFL give other teams the same break? I don’t think that state laws regarding employee rights would demand suspension for first violations (except perhaps for critical professions, which would be a big stretch to classify pro sports as a critical profession.)
I worked once for a large corporation who had facilities in many states. The corporations policies regarding termination of an employee were more liberal than what could have theoretically been allowed in the state where I lived an worked. I suspect that in part, this was in order to treat all employees, regardless of where they lived and worked, the same.
An additional problem for the NFL in trying to enforce rules on a state by state basis, based on team location, is just what exactly is team location? The Washington DC teams actually plays in Maryland, not DC, and the New York teams play in New Jersey.
Mike,
That’s a good illustration about how science (or should I say “science”) can get twisted around. Once something is published — especially in a peer-reviewed journal — it’s well on its way to becoming accepted fact. Not always, as someone may come along and challenge those findings, but until that time.
In the case of Coyle, I’d need to look into the details of what’s been alleged. Certainly Michael Ashenden paints a picture of misconduct, but there may be more to the story than just his side. Coyle, though, should definitely put it all out in the open, if he hasn’t, as otherwise we only have Ashenden’s information to go on. And it doesn’t paint a pretty picture.
William,
I think you’ve hit the nail on the head. Exactly where is a professional sports team “located”? At their corporate offices, or on the various playing fields where the athletes actually compete. If you accept the latter as their location, then each team is a really a national team, for all intents and purposes in the NFL, NHL, NBA and pro baseball. In the case of other sports (like the UCI’s ProTour), some teams are international by that same standard.