This week’s question was originally submitted to our legal beagle Bob Mionske. He sent it on to The Explainer who, unfortunately, has been writing about doping questions longer than he would like to admit.
I live in Minnesota and currently five professional football players are being charged with the use of a banned substance. The NFL initially suspended them – two of our own Vikings and three members of the New Orleans Saints – for four games.
The players challenged this ruling in federal court and overturned the suspension, allowing them to play this week. Can you explain how this situation is different than cyclists testing positive for banned substances and why they don’t do this same type of challenge to get back on their teams? Thanks.
Eden Prairie, Minnesota
Your question gets to the root of the differences between the doping rules in cycling and other sports connected to the Olympic movement and the “Big Three” American sports – NFL Football, MLB Baseball and NBA Basketball. To begin, though, it’s important to note that last Friday’s ruling may have only delayed the suspensions. They have not yet been definitively overturned.
The case to which you are referring involved the four-game suspensions of Minnesota Vikings players Kevin Williams and Pat Williams and the New Orleans Saints’ Deuce McAllister, Will Smith and Charles Grant. All of them tested positive for Bumetanide. The drug is an extremely effective diuretic and is viewed by the NFL – and the World Anti-Doping Agency for that matter – as masking agent, since it causes the body to flush fluids quickly and can hide use of performance-enhancing drugs by diluting the level of metabolites in the user’s urine.
The players all claimed that they had unknowingly ingested the drug when they used a weight loss product marketed under the name “StarCaps.”
The players were all investigated by the NFL and found to have committed a doping violation. The NFL adjudication panel rejected players’ claims of an accidental ingestion, saying that the players themselves were responsible for knowing what they were taking.
That duty is at issue in the case. The players – with legal representation provided by the NFL Players’ Union – took the case to federal court and argued that the league had been aware of the contaminated supplement, but failed to notify players that using StarCaps could pose a problem.
In a ruling issued last Friday, U.S. District Judge Paul Magnuson did not overturn the players’ suspensions. Instead, he issued a stay, saying he needed more time to consider the matter and ordered the NFL to allow the five to play until he reached a definitive conclusion.
As soon as the ruling was issued, spokesmen for the NFL and the union began the usual chin music, predicting how the judge would rule. We’ll take a wait-and-see attitude on that one.
But what about cycling?But you also raise the question of whether cyclists – who operate under the much stricter provisions of the World Anti-Doping Code – could mount such a challenge themselves. The answer is a definitive … maybe.
For long-time cycling fans, you might recall that the current matter before the court is reminiscent of the cases of the now-retired Scott Moninger and current world time trial champion Amber Neben. Both had consumed dietary supplements apparently contaminated with the banned steroid Nandrolone.
Like the NFL, WADA has issued a list of banned substances, a definitive list of items that competitors must avoid in order not to be in violation of the rules. The World Anti-Doping Code puts the burden on the athlete to know what those substances are and to avoid their ingestion. In the current case before Judge Magnuson, the NFL is asserting that it was the players’ duty to do the same.
Under the WADA Code, a doping positive is known as a “strict liability” violation. You’re either positive or you’re not. Intent is not a factor in determining whether or not a violation occurred. It’s kind of like the approach American law takes when it comes to a traffic violation: You were either speeding or you weren’t. It doesn’t matter whether or not you intended to speed.
Furthermore, the Code does not place any duty upon a governing body or WADA to inform athletes about potentially contaminated products. The only duty the agency has is to produce the list of banned substances. Beyond that, the rest falls to the athlete. That’s the position the NFL is taking in the current case. The court is trying to determine whether the contract implies that duty to inform does exist.
Now, in the cases of Moninger and Neben, both were found to have committed a doping violation. As we said, the standard is one of strict liability, so once the positive tests were confirmed, the issue of error couldn’t be considered in determining guilt. It was, however, a factor in considering the resulting penalties. Moninger was suspended for a year, Neben for six months. Both were less than the standard rule of two years for a first offense. In both cases, the hearing panels did mitigate the penalty because of the apparent unintentional use of the drugs.
Right off the bat, you can see the difference between the rules outlined in the WADA Code and the rules of the NFL. These guys are facing a four-game suspension. Neben and Moninger were “fortunate” to get less than two years.
Could they have challenged the ruling in U.S. Court? Possibly, but their chances of success would have been considerably less than those of the NFL players.
American football’s anti-doping policy is part of the labor agreement between the NFL and the NFLPA. Like the players’ agreements with MLB, the NBA and the NHL, those rules were drafted independently and do not fall under the authority of WADA.
American courts have long recognized the rights of private employers to require drug testing, especially when it is contractually dictated in a labor agreement. Of course, that doesn’t preclude a legal challenge based on the means by which those contract provisions are carried out. That’s the basis of the players’ suit to overturn their suspensions. It remains to be seen how that will end up.
The WADA Code, however, raises a host of jurisdictional questions. First off, the Code was developed as part of an international agreement, dating back to 1999 when WADA was first created. What’s more, it now carries the additional authority of a U.N. treaty – International Convention against Doping in Sport – which has already been ratified by more than 100 countries, including the United States.
Seeking help from the courtsTo be certain, athletes still have the right to seek redress in U.S. courts, but a ruling in a U.S. District Court in Minnesota has a lot more impact in NFL football than it would in cycling. Judge Magnuson may rule in favor of the five players, and that would – in the absence of an appeal from the NFL – settle the matter, since football is a game played only within the borders of the U.S. In contrast, an American court ruling involving a Tour de France cyclist, for example, wouldn’t carry a lot of weight in France.
There have been U.S. legal challenges to the authority of WADA and its U.S. affiliate USADA. To date, none of them have succeeded, though. Track sprinter Marion Jones threatened to sue USADA on the grounds that her due process rights had been violated when an arbitration panel found her guilty of a non-analytical positive, a doping violation based not on a lab result, but on a combination of scientific and witness testimony. She dropped her suit, right around the time she was indicted for perjuring herself in front of the federal grand jury in the BALCO case.
Last week, Floyd Landis withdrew his federal court challenge to this summer’s ruling on his appeal by the International Court of Arbitration for Sport. He may have reached an out-of-court settlement regarding CAS’s imposition of a $100,000 penalty, but neither side in the case has spoken about the agreement. Again, the deal means that we have yet to see how a challenge of the provisions of the Code, of USADA, of WADA and CAS would fare in an American court.
Similar challenges in European courts have done rather poorly. In 2004, Spain’s David Meca-Medina and Slovenia’s Igor Majcen, two professional long-distance swimmers, went to the European Court of Human Rights, with hope of challenging WADA’s testing policy as an interference in their right to earn a living. The court not only dismissed the claim on jurisdictional grounds, but also ordered them to pay court costs for both sides, ruling that the challenge was “frivolous” in nature.
In October, 2007, cyclist Andrej Kashechkin, suspended for testing positive for homologous blood doping, filed suit in a Belgian civil court challenging WADA’s authority to conduct doping tests. The judge ruled that the question did not fall within the court’s jurisdiction.
Why no strong union?Many readers have suggested that cyclists form a strong riders’ union to mirror the agreements in top American sports. There are a couple of reasons why – at least when it comes to doping – it won’t happen so easily in cycling, or any other sport that falls under the governance of the International Olympic Committee.
To start, there is a riders union of sorts – the Cyclistes Professionnels Associes – but the group wields little power. It really plays no role in the negotiation of contracts and has little power to influence the outcome of doping cases.
In American Football, the union represents all players in the NFL. The labor contract sets a minimum annual salary and establishes benefits and retirement programs. As was the case in the matter before the Minnesota court, the union also helped establish doping rules and plays an advocate’s role when a charge is made.
Looking beyond the CPA’s relative weakness when it comes to negotiating salaries and benefits on behalf of pros in the peloton, the group has absolutely no power when it comes to dictating the particulars of any testing and enforcement program involving doping.
As is already probably quite clear, cycling operates under the rules spelled out in the provisions of the World Anti-Doping Code. The only influence the CPA, or the UCI or anyone else can have on the specific provisions of the Code is to lobby delegates to an International Conference on Doping in Sport, most recently held in Madrid in 2007. Otherwise, the only other way to change the Code would be appointment to the WADA committees charged with the task of refining the rules in advance of a world conference.
In order for cycling to operate independently of WADA and the Code, it would have to leave the Olympic movement, since support of the Code became mandatory soon after the agency was originally created. It was established to operate as an independent testing system, but it survives largely with the support of the full membership of the IOC.
Indeed, there are significant segments of CPA membership who fully support the idea of strict doping rules and even if the organization did have the power to affect the rules. There is a question of what the consensus among riders would be. Recall that doping caused serious problems for all riders in professional cycling, both those that used and those that did not. Doping also has a direct and negative economic impact on sponsors, teams and races. Just count the number of team sponsors who have left the sport because of doping over the past, say, three years, if you have a doubt.
There are now plenty of sponsors, teams and riders who see the value in an independent and strict set of rules. Personally, we think the NFL, and other big American sports, should look to WADA as a model, rather than the other way around.
You can always sue somebodyFinally, one thing to remember, though, is athletes covered by either arrangement – the NFL’s contract or the World Anti-Doping Code – do have other legal options when it comes to contaminated substances. They can sue the pants off of the folks responsible for the contamination.
Defensive tackle Grady Jackson of the Atlanta Falcons, who is also facing a four-game suspension because of StarCaps, is suing the product’s manufacturer, Balanced Health Products Inc., for false advertising and unfair business practices, seeking both compensatory damages – loss of income, damage to reputation etc. – and punitive damages. Probably not coincidentally, Balanced Health issued a recall this week, conceding that the product is contaminated with Bumetanide.
In March of this year, Neben filed suit against Hammer Nutrition, the manufacturer of Endurolytes, the product that reportedly caused her positive for Nandrolone. Moninger, too, filed suit against the manufacturer of the contaminated product he used, as well as the retailer from whom he purchased it. The suit was withdrawn and it is believed he reached an out-of-court settlement in the case.
So, as you can see, Kris, no matter whose doping rules apply – be it the labor contract with the NFL or the World Anti-Doping Code – at least the lawyers will have jobs, no matter what.
Back to you, Bob.