NFL Suspends 6 for Starcaps

[sharpe1027]

I think that drug is prescription only for a reason. I think the NFL is going to live to regret the way they handled it in 2006, when they let the first player off scot free and then kept quiet (other than banning the maker from being endorsed by NFL players).....Nice.

http://www.startribune.com/sports/vikings/35993969.html?elr=KArksi8cyaiU9PmP:QiUiD3aPc:_Yyc:aULPQL7PQLanchO7DiU

The NFL shared the truth about StarCaps with the league’s 32 teams. I see the Vikings did a nice job of protecting their players.

Unless two wrongs make a right, they should be suspended no matter what the NFL knew or did not know. Maybe the NFL is wrong too, but there is not doubt that the players were in the wrong.

[Rastak]

Yikes......just reading over the judges findings....interesting section and it explains why he continued the injuction.

Federal Arbitration Act provides that a court may vacate an arbitration award “where there
was evident partiality or corruption in the arbitrator[].” 9 U.S.C. § 10(a)(2).
The NFLPA argues that Mr. Pash was biased because his office was directly
implicated in the NFL’s failure to inform players that StarCaps contained a banned
substance. The NFL responds that because the Policy specifically provides that the
Commissioner or his designee will preside over any arbitration, the NFLPA agreed to Mr.
Pash presiding over the hearing and therefore waived any challenge to Mr. Pash.
In agreeing that the Commissioner or his designee would preside over hearings under
the Policy, the NFLPA agreed to a certain amount of partiality in the arbitrator.3 Thus, “the
award should be confirmed unless the objecting party proves that the arbitrator’s partiality
prejudicially affected the award.” Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 551 (8th
Cir. 2007).
It is plain that the involvement of Mr. Pash’s office and Birch, Mr. Pash’s subordinate,
in the alleged conduct rendered Mr. Pash a partial arbitrator. At the oral arguments on the
pending Motions, counsel for the NFLPA discussed Birch’s arbitration hearing testimony.
Birch was asked whether he reported the information about StarCaps to either Mr. Pash or
the Commissioner. He refused to answer the question, and Mr. Pash upheld his refusal to answer.
This exchange alone casts substantial doubt on Mr. Pash’s neutrality.
The NFLPA has succeeded in establishing that a substantial question exists as to
whether Mr. Pash’s connection to the allegations in this case prejudicially affected the award.
Although Mr. Pash’s decisions are well reasoned, he glossed over the rather shocking
allegations the NFLPA makes. Moreover, he did not take into account Lombardo’s
testimony that, even if asked about StarCaps in particular, he would merely warn the player
away from supplements in general. Such testimony calls into question the very basis of the
NFL’s position on banned substances. The NFL maintains that its strict liability policy is fair
in part because players may contact either Lombardo or the Hotline with questions about
specific supplements If players cannot get answers to their questions, however, they cannot
determine which supplements are permissible and which are not. While it is true that the
NFL discourages the use of all weight-loss supplements, such supplements are not forbidden
and the players reasonably expect to rely on the advice of Lombardo and the Hotline with
respect to such substances. Mr. Pash’s failure to take Lombardo’s testimony into account is
substantial evidence that the arbitration award was prejudiced by Mr. Pash’s partiality. The
NFLPA is entitled to a preliminary injunction to preserve the status quo until a full hearing
can be held on the issue of Mr. Pash’s partiality and the effect of any partiality on the
arbitration awards at issue.

[denverYooper]

Oooh, I want to play.

Federal Arbitration Act provides that a court may vacate an arbitration award “where there
was evident partiality or corruption in the arbitrator[].” 9 U.S.C. § 10(a)(2).
The NFLPA argues that Mr. Pash was biased because his office was directly
implicated in the NFL’s failure to inform players that StarCaps contained a banned
substance. The NFL responds that because the Policy specifically provides that the
Commissioner or his designee will preside over any arbitration, the NFLPA agreed to Mr.
Pash presiding over the hearing and therefore waived any challenge to Mr. Pash.
In agreeing that the Commissioner or his designee would preside over hearings under
the Policy, the NFLPA agreed to a certain amount of partiality in the arbitrator.3 Thus, “the
award should be confirmed unless the objecting party proves that the arbitrator’s partiality
prejudicially affected the award.” Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 551 (8th
Cir. 2007).
It is plain that the involvement of Mr. Pash’s office and Birch, Mr. Pash’s subordinate,
in the alleged conduct rendered Mr. Pash a partial arbitrator. At the oral arguments on the
pending Motions, counsel for the NFLPA discussed Birch’s arbitration hearing testimony.
Birch was asked whether he reported the information about StarCaps to either Mr. Pash or
the Commissioner. He refused to answer the question, and Mr. Pash upheld his refusal to answer.
This exchange alone casts substantial doubt on Mr. Pash’s neutrality.
The NFLPA has succeeded in establishing that a substantial question exists as to
whether Mr. Pash’s connection to the allegations in this case prejudicially affected the award.
Although Mr. Pash’s decisions are well reasoned, he glossed over the rather shocking
allegations the NFLPA makes. Moreover, he did not take into account Lombardo’s
testimony that, even if asked about StarCaps in particular, he would merely warn the player
away from supplements in general. Such testimony calls into question the very basis of the
NFL’s position on banned substances. The NFL maintains that its strict liability policy is fair
in part because players may contact either Lombardo or the Hotline with questions about
specific supplements. If players cannot get answers to their questions, however, they cannot
determine which supplements are permissible and which are not. While it is true that the
NFL discourages the use of all weight-loss supplements, such supplements are not forbidden
and the players reasonably expect to rely on the advice of Lombardo and the Hotline with
respect to such substances. Mr. Pash’s failure to take Lombardo’s testimony into account is
substantial evidence that the arbitration award was prejudiced by Mr. Pash’s partiality. The
NFLPA is entitled to a preliminary injunction to preserve the status quo until a full hearing
can be held on the issue of Mr. Pash’s partiality and the effect of any partiality on the
arbitration awards at issue.

I'm calling into question the partiality of Judge Homer Magnuson. "Discourages" is far too soft a word for the language in the letter issued by the NFL. They flat out said that players are completely responsible for what goes into their bodies and that players would be suspended if they chose to take those supplements and they turned out to contain banned substances.

[Rastak]

Denver, why'd the NFL let the first guy off then?

[denverYooper]

Denver, why'd the NFL let the first guy off then?

Was it before the current administration (Goodell)?

[Rastak]

Denver, why'd the NFL let the first guy off then?

Was it before the current administration?

Does the CBA predate the current administration? The terms of the CBA did not change. I should see if I can find the section in that ruling where the NFL detailed the intent of the policy....that was interesting.


edit: Gah, reading legal documents isn't as fun as I thought. Eseentially the NFL claimed players should contact Dr Lombardo or call the suplement hotline yet Lombardo testified if a player had called he wouldn't have told him it contained a prescription only banned drug. With partners like that who need enemies!

[denverYooper]

Denver, why'd the NFL let the first guy off then?

Was it before the current administration?

Does the CBA predate the current administration? The terms of the CBA did not change. I should see if I can find the section in that ruling where the NFL detailed the intent of the policy....that was interesting.


edit: Gah, reading legal documents isn't as fun as I thought. Eseentially the NFL claimed players should contact Dr Lombardo or call the suplement hotline yet Lombardo testified if a player had called he wouldn't have told him it contained a prescription only banned drug. With partners like that who need enemies!

My point was that Goodell's been trying to enforce the rules tighter and he came into office in Sept 2006. The first case pre-dated his tenure. Could explain why the first guy wasn't busted.

I don't know about Lombardo's role. He's being made the bad guy by the defense though, that's for sure.

[Rastak]

Denver, why'd the NFL let the first guy off then?

Was it before the current administration?

Does the CBA predate the current administration? The terms of the CBA did not change. I should see if I can find the section in that ruling where the NFL detailed the intent of the policy....that was interesting.


edit: Gah, reading legal documents isn't as fun as I thought. Eseentially the NFL claimed players should contact Dr Lombardo or call the suplement hotline yet Lombardo testified if a player had called he wouldn't have told him it contained a prescription only banned drug. With partners like that who need enemies!

My point was that Goodell's been trying to enforce the rules tighter and he came into office in Sept 2006. The first case pre-dated his tenure. Could explain why the first guy wasn't busted.

I don't know about Lombardo's role. He's being made the bad guy by the defense though, that's for sure.

He runs the entire NFL Steroids policy is my understanding. Anyway, I wish this one would show up on courtTV, I find it an interesting case.

[denverYooper]

Denver, why'd the NFL let the first guy off then?

Was it before the current administration?

Does the CBA predate the current administration? The terms of the CBA did not change. I should see if I can find the section in that ruling where the NFL detailed the intent of the policy....that was interesting.


edit: Gah, reading legal documents isn't as fun as I thought. Eseentially the NFL claimed players should contact Dr Lombardo or call the suplement hotline yet Lombardo testified if a player had called he wouldn't have told him it contained a prescription only banned drug. With partners like that who need enemies!

My point was that Goodell's been trying to enforce the rules tighter and he came into office in Sept 2006. The first case pre-dated his tenure. Could explain why the first guy wasn't busted.

I don't know about Lombardo's role. He's being made the bad guy by the defense though, that's for sure.

He runs the entire NFL Steroids policy is my understanding. Anyway, I wish this one would show up on courtTV, I find it an interesting case.

Yeah. I'd bet that at the very least this results in the steroids policy being spelled out much better than it apparently has been.

[sharpe1027]

Denver, why'd the NFL let the first guy off then?

In the first instance the NFL had specifically told players that starcaps was O.K. via their hotline. The player in question worked with the NFL to help determine how he tested positive for the substance.

Since that time the NFL issued a warning about these types of supplements, changed their stance on Home Grown, notified each of the NFL teams about Star Caps and clarified that taking these types of supplements are "at your own risk."

There is a difference in the situations and the NFL can make a logical case for their actions. Personally, I don't think that the first player should have gotten off.

[Guiness]

Denver, why'd the NFL let the first guy off then?

In the first instance the NFL had specifically told players that starcaps was O.K. via their hotline. The player in question worked with the NFL to help determine how he tested positive for the substance.

Since that time the NFL issued a warning about these types of supplements, changed their stance on Home Grown, notified each of the NFL teams about Star Caps and clarified that taking these types of supplements are "at your own risk."

There is a difference in the situations and the NFL can make a logical case for their actions. Personally, I don't think that the first player should have gotten off.

I agree with the interpretation in your first paragraph. The original player got off because he'd been specifically told by the NFL that it was ok to take. And if that was the case, I do think he should've gotten off. I also suspect that's why the NFL no longer has a list of 'approved' supplements. They have some endorsed ones, but not approved, as I understand it.

What about the part I bolded though? They notified each team about Starcaps? Isn't the whole problem that they didn't notify them? The general warning was worded in such a way as to not single out Starcaps.

[pbmax]

The NFL shared the truth about StarCaps with the league’s 32 teams. I see the Vikings did a nice job of protecting their players.

The NFL did not share the "truth" about StarCaps with anyone except, perhaps, itself. Possibly the FDA.

The league put the Manufacturer on the "Do Not Endorse" list. It might be possible for a player to interpret that as a backdoor notice that some of its products may contain prohibited substances, but it is far from clear.

The Do Not Endorse list also might contain companies with legal problems, gambling interests, or questionable associations (pornography, Pete Rose? hopefully not together ). There are certainly many reasons the League could want its players to not associate with a given company. And due to the complete lack of logic of NFL reporters, I have yet to see anyone ask how a company ends up on this list.

What the league did share was a general warning about supplements and about weight loss products in particular.

[pbmax]

Denver, why'd the NFL let the first guy off then?

In the first instance the NFL had specifically told players that starcaps was O.K. via their hotline. The player in question worked with the NFL to help determine how he tested positive for the substance.

The Hotline does not approve products beyond what is on the EAS produced line for the NFL. It reads the labels and cross checks the listed ingredients against the banned substances list.

The Saints players who called were given the same answer that the player from 2006 was given. Nothing on the label is a banned substance.

Its possible the Hotline was changed after the first StarCaps incident, but I have not seen this reported.

[Rastak]

In addition PB, it is my understanding that the players were told they could contact Dr. Lombardo with questions and my understanding is he admitted under questioning he would have only warned them off generally had someone asked specifically about StarCaps.

It just seems to me that the NFL completely fucked this one up. I totally agree with the policy and I'm sure when the players bargained this they likely thought they were partnering with the league since they both have a vested interest. The NFLPA to protect it's members health and the NFL to protect the integrity of the game. It seems the NFL wanted to turn it into some sting operation rather than the stated goals. I could even somewhat understand that if the drug in question had been performance enhancing but I just don't see what the NFL tried to gain in handling things this way. Leverage on the next CBA? It doesn't make sense to me.

[pbmax]

... It seems the NFL wanted to turn it into some sting operation rather than the stated goals.

Perhpas Ras. But the prognosticator in me thinks someone ran a test they never should have run in the first StarCaps case, back in 06. If it didn't matter how it got into the player, then there was no reason for that test.

So either the NFL (or its policy enforcement team) ordered the test because it thought they found a hole in the policy, and needed the test in order to be sure how to close it or they ran the test and from that point forward possessed knowledge they really didn't want.

Or perhaps it was a league icon who tested positive and they were looking for a way to let him off the hook. Someone like Gus Frerotte.