Here’s a question for the legal eagles who occasionally visit this site: Can two parties enter into a contract that in any way violates the legal rights of one of those parties? Under normal circumstances, would such a contract be enforceable?
Related question: If such a situation gets in the way of, say, the anti-doping program of one or more sports, should Congress enact a law that basically allows those programs to supersede the rights of the athletes?
These questions came to mind after reading this article, which reader David Olson passed along to me a few days ago. Representative Henry Waxman (D-California), who in the past few years led hearings into steroid abuse in professional baseball, spoke to the issue indirectly when he said this at a hearing this week:
“If these rulings [allowing two NFL players to continue playing, despite having tested positive for the banned substance bumetanide] prevail, they could wreak havoc with policies designed to curb performance-enhancing drug use in professional sports,” Rep. Henry Waxman, the chairman of the House Energy and Commerce Committee, said at a subcommittee hearing. “In fact, if the rulings are taken to their logical conclusion, players on one team could be allowed to use drugs that would subject players on another team to suspensions and fines.”
“In short,” he added, “these new legal interpretations could render the NFL and Major League Baseball drug testing programs unenforceable, loophole-ridden, and unacceptably weak and ineffective.”
The problem, in a nutshell, is that some aspect of the NFL’s program may violate Minnesota employment laws. A trial will be held in the spring, but in the meantime the court has blocked the NFL from enforcing a four-game suspension against either Pat Williams and Kevin Williams (who aren’t related) of the Minnesota Vikings. Both players claim that they tested positive after using the StarCaps weight loss supplement, which did not list the drug as one of its ingredients. The players claim that the league knew the supplement contained banned substances and should have informed players of that fact. The league has dropped the suspension of two other players who tested positive after supposedly using the same supplement.
The NFL and representatives of Major League Baseball would like help from Congress.
Rob Manfred, Major League Baseball’s executive vice president of labor relations … said a “narrowly drafted statute could solve the problem faced by professional sports” while preserving the role of collective bargaining in drug programs without interfering with states’ prerogatives.
Michael Weinger, the lawyer for the NFL players union, took the opposite point of view. While testifying in front of the Congressional subcommittee, he noted that a bill to pre-empt state laws “would stand for the unusual proposition that parties to a collective bargaining agreement can contract for that which is illegal under state law.”
For the moment, it seems that Congressional action may not be all that likely. Illinois Representative Bobby Rush, chairman of the subcommittee holding the hearings, told NFL commissioner Roger Goodell:
“Right now, I think we’re reluctant to do that,” Rush said after a two-hour hearing on Capitol Hill that addressed myriad legal issues in the so-called StarCaps case.
“We are concerned about the effects of this,” Rush said. “We want to keep a wary eye on this procedure and this conflict. We want to work with the players association and the NFL to encourage you to come up with a remedy to this problem, and fairly quickly.”
Rush also told the NFL commissioner:
“You don’t want to have 435 members of Congress writing a law that would have in any way some immediate conduct and effect on your players.”
…
Waving his hands as if to ward off the effort, Rush said, “You don’t want us to get involved in this. You can’t tell what members of Congress will ultimately do once you open up this Pandora’s Box.”
It’s the old story of “be careful what you wish for …. you might get it.” Once Congress gets involved, there’s no telling where legislation might lead. There is the question, though, of how one could design an anti-doping (or other nationwide drug testing program) that manages to avoid violating the various rules, regulations and laws throughout the country. Surely there are some companies that have already figured this out. Perhaps, rather than asking Congress to fix their problem, the NFL should look to see how employers who have locations in all 50 states have solved the problem.
Creating a new law that allows an exemption so that the NFL (or any other sports league or federation) can establish a program that violates the athletes’ (or any other workers’) rights doesn’t seem like the right solution to me. Creating a program that can work within the myriad legal frameworks throughout the country, on the other hand, seems awkward. Many companies already have drug-testing programs of one sort or another. How do they manage to avoid legal problems? (Or do they?)
What are your thoughts? Can the NFL (or any other sports league) get around this problem without help from the federal government? If not, would that start us down a slippery slope where one day we all could be required to “voluntarily” give up our legal rights in exchange for a paycheck?
This is an interesting situation, and I don’t pretend to have answers for it. Could the NFL (or indeed any business) formulate a policy such that it wouldn’t conflict with any state law (or at least of those states in which it has a presence). Hard to say, it could be as easy as going with the most restrictive laws, or it may be more complicated.
I would think that the NFL, or any sports organization, would be able to prohibit use of any substance they wished, even if the general public were allowed to use said subtance. Certainly, for example, a business can prohibit its employees from using alcoholic beverages while on duty, even if such use would otherwise be legal. Thus, I don’t see the situation arising where teams bases in one state might be allowed to use a given PED while teams in other states weren’t.
I think that can sort of voluntarily waive some of his rights, in the form of “agree to this if you want to work here”. For example, in general, one would have the right to refuse to a drug test, absent probable cause, but as an employee, you might well be required to submit to random testing as a condition of employment. But I think that there are limits as to what rights one can “voluntarily” give up, you couldn’t be required to submit to capital punishment for a bad performance rating, as an extreme case. Where to line is to be drawn I don’t know; it might be determined on a case by case basis, and probably has evolved over time. There was a time when female employees might be subject to termination when they married or got pregnant; such would not be tolerated today.
William,
I wonder if a business such as Home Depot, which has locations around the country, has done just that — found a solution to certain challenges that manages to stay within the requirements of every state’s laws by complying with the strictest requirements. Seems to me that would be a tricky, but effective solution. Rather than having different rules in different states, everyone follows the same rules no matter where they work. Though the creation and maintenance of such policies would be tricky, the day-to-day use would be far simpler than having to track different policies and procedures for each state. If an organization such as Home Depot could do that, then the NFL ought to be able to, as well.
There are, no doubt, certain on-the-job requirements that might be contrary to the freedoms we experience off the job. Companies banning the use of alcohol on the job is just such an example. I sure wouldn’t want the pilot of an airplane, or a long-haul truck driver working while inebriated, for example. Of course, we’re not supposed to drive our own cars while under the influence, no matter whether we’re on or off the job, either. But we can drink away from our jobs, provided we don’t drive if we’re not sober.
I suspect there is a line somewhere between giving up some rights or privileges of society for a paycheck and giving up basic rights that shouldn’t be infringed. And that line clearly evolves over time. The question in my mind is, where do we draw the line today?
I recall an on-line discussion I had with someone a couple of years back, on some other site discussing the Landis case. As you might recall, there was a certain amount of talk that, if FL did not like how UCI/WADA implemented and enforced the PED policy, he didn’t have to work as a pro cyclist, and related to this, there was some talk about how certain states are “work at will” states, were either the employee or the employer have the right to end employment at any time, basically for any reason. I mentioned that, none the less, many businesses had policies in place which limited the right of any particular manager to unilaterally fire and employee, and instead put in place a system of due process to follow. It now occurs to me that perhaps one reason for this is that many companies do operate in different states under different rules, so in one state they well may be able to say “your fired” legally, while in another state they have to jump through hoops to get an employee fired. So, in order to ensure they comply with the rules in all states, and (hopefully) be fair to all employees, the company institutes a policy that complies with the most restrictive laws they operate under. I suspect that it wouldn’t be all that hard for the NFL to do something similar. If I counted correctly, the NFL operates in 24 states, although I am not sure how to count, for example, the NY teams that actually play in NJ, and the DC team, which actually plays in Maryland.
Interesting topic Rant! It is the ol’ Fed vs. State thing. The Fed says “you the states are to make your own laws that are in standing with the people in your state”. And occasionally, a state passes a law the Fed doesn’t like. So then the Fed says “no, we don’t like that law. HERE is how you are going to do it”. Oh..but you are still free (and expected) to make your own laws. Just not THAT one.
The one example that comes to mind is that here in CA we have voted to allow medical marijuana dispensaries. They have guidelines/rules to follow as to who gets the goods. Yet each one that tries to open is quickly raided by the Feds and shut down as it violates Federal law. But this type of thing obviously spans countries as well…take the cycling doping policies and doping agencies.
Wasn’t Mr. Rasmussen (Rabobank a few years back, on the birnk of winning the TDF) riding under a Mexican racing liscense (where he had little to no doping controls done)? I seem to recall that. However a rider racing under the banner of say the US faces all KINDS of doping controls…in and out of competition. Hardly a fair playing field.
How the NFL will handle this situation might end up being a litmus test that could span the globe if done properly. Sports, corporations, countries…all trying to make fair policy that has the intended effect, leaves no loopholes but is also fair to all concerned parties…I just don’t think it will happen. Too many players, egos, power-structures involved. Whatever does happen (my glass is half-empty thoughts) will be half-baked. Just my 2 cents.
Matt,
There are at least a few factual errors in your post. I’ll start by pointing out that the “Chicken” did not race with a Mexican license. IIRC it was a license from Monaco? I’ll leave it to others to correct incorrect data/assumptions in your post.
I have a bit more time now, so here is a, hopefully, more reasoned response.
The federal government will sometimes coerce states to fall in line. An example is the federal government denying highway funds to states that failed to enact their standard of a 21-year old drinking law. Individual states were free to have 18-year old drinking laws, and many did, but faced with federal highway funds being denied, each eventually caved IIRC. Under the W. Bush administration, it was policy to raid medical marijuana facilities, regardless of state law. The Obama administration recently reversed that policy.
Each professional rider has to be licensed. The contract for the license requires each rider to submit to drug testing via the current WADA formula. Riders can be tested at random or be targeted for testing. Riders can be tested under the authority of the UCI regardless of their location. They can also be tested by the ADA of the nation where they are physically located at a given time. Each upper level professional rider must participate in a “whereabouts program”, which is under the auspices of the UCI. Each rider is required to state a location where he/she will be during one hour of every day. If the rider is not there when a tester arrives, he/she may be contacted (cell phone/blackberry/other) and has a limited amount of time to present hem/herself to the tester (actually collector/pooper scooper). I’m not a fan of Oscar Pereiro, but he had an interesting encounter with the pooper scoopers recently that resulted in him providing a sample in a restaurant lobby near a bathroom where he was in view of some patrons naked from the ankles to his chest. Now folks, that’s entertainment, and not the good kind.
The Chicken’s license was issued by Monaco, not Mexico. (IIRC, the Chicken’s wife is from Mexico?) The Monaco federation decided his 2-year suspension. The Chicken didn’t fail any drug tests. He was probably targeted and was also probably tested more than average. However, he was not suspended for a failed drug test. He was suspended for fraudulent actions regarding the whereabouts system. He lied about where he was too often and was given a 2-year suspension.
A U.S. licensed rider does not necessarily equate to more doping controls. However there is one or more U.S. licensed rider(s) who are tested more than average. Lance Armstrong is tested much more than average. The leader and winner of stages of major stage races will be tested more than others. Domestiques not finishing close to the front are chosen at random and sometimes targeted. In addition, the UCI has a bio passport program that tests each rider for baselines and at somewhat regular intervals. If their blood values are deemed suspicious, then they may be targeted with more frequent testing.
I’d generally agree with your last paragraph and add a recommendation to follow the money.
Actually, in one sense, you’re both right. Rasmussen was at one time licensed in Mexico and a year or two later, he was licensed in Monaco. At the 2007 Tour, when the whole “where was he training” fiasco occurred, Rasmussen was racing with a license from Monaco.
ahhh….Monaco…Mexico…both start with M…both have 6 letters… close enough for my addled brain (guess I’d best start taking notes, as my few remaining brain cells are failing fast now!) I stand corrected Jeff…thanks. Always good to get the facts right (thats why I come here!)
And as to the Fed ‘coercing’ states to fall in line…using the drinking age is a good one that still has my panties in a bunch after all these years. I’m retired military…as a young Navy lad (under 21) I vividly recall having my ‘right’ to have a drink yanked away from me (was stationed right here in CA when the state finally caved to the Feds pressure and stopped serving to under 21 even on base). I STILL think that law SUCKS! Old enough to die for your country but can’t have a drink. Good thing we have responsible lawmakers looking out for us (sorry rant..this is heading quickly towards Rant2.0 territory).
And btw: happy Veterans day ya’ll! Once again ME the retired Vet is here at work, while my wife the NON vet (but is a gov employee) is home with pay. Guess I’m a bit crabby this morning. The annual joke at our house. Guess I’ve officially strayed from the topic. Oops.
Matt,
Yes. The irony of your workday sucks and the 21-year old drinking law vs. military service has zero basis in logic or the concept of fairness. Thank you for your service!
Jeff
Matt,
Don’t worry about veering off topic and heading into Rant 2.0 territory. It keeps the conversation interesting. 🙂
On a more serious note, we don’t say it often enough, but thanks for your service. Freedom ain’t free, as someone once observed.