dfosterf
15 years ago
This thread is about the litigation, not the suspensions.

I think most will be at least somewhat surprised to learn what is actually true about the case.

An example:

Many on the various forums,blogs and media outlets have stated that the NFL knew about Starcaps , but failed to tell the players. The NFL has argued that the issue is irrelevant, citing the principle of "strict liability" as regards what a player can put in his body.

This contention was the primary argument of the NFLPA's case against the league, and was rehashed and argued over since last year. It was also ruled to be false, and one of the ways that the court found out that it was false (and cited in the order) is both fascinating and somewhat humorous.

A little background here. When the judge issued a temporary restraining order (TRO--this is what allowed them to play) last year, he also ordered the parties to engage in

expedited discovery and therefore to submit to dispositive motions, if appropriate.



This is where it got fun. Apparently, the NFL, the NFLPA and the Williams' wall went to war on this issue. All quotes are from the actual court order.

Depite the Court's clear guidance that discovery was necessary, the parties (and the NFL in particular) engaged in what can only be called gamesmanship, requiring the Magistrate Judge

[unnamed in the court order]

to extend far greater oversight of the discovery process than should otherwise have been required. Not only are such obstructive litigation tactics unnecessary and expensive, but they were contrary to the explicit dictates of the Court. The parties are fortunate

[I would bet that the NFLPA disagrees with this part very strongly, lol]

that the Magistrate Judge so ably shepherded discovery and mediated the parties' disputes. This court would not have looked favorably on the parties' conduct should it have had occaison to consider the consequences of that conduct.



Discovery revealed additional facts not found in the arbitration record.



Remember, the NFLPA (and the Williams' wall) had been claiming all along that the NFL failed to inform them that Starcaps were banned.

Discovery is a bitch...at least that is what the NFLPA might say in this instance.

yada, yada yada

Williams threatened to bring a lawsuit claiming, among other things, a violation of the Americans with Disabilities Act.



Two starting linemen in the NFL...the tone in the order indicated the judge got the humor in that one.

yada, yada yada (This is ALL verbatum, including parens and underlines as contained in the actual court order)

Discovery also revealed a memorandum from the NFLPA to players' agents regarding the distributor of StarCaps. In that memorandum, the NFLPA informed the agents that "Balanced Health Products, which distributes StarCaps, has been added to the list of prohibited dietary supplement companies. Players are prohibited from participating in any endorsement agreement with this company or using any of their products." (12/20/2006 Robinson memo (emphasis added).)



As previously stated, all those underlines etc. are the judge's, not mine.







More to come.
dfosterf
15 years ago
Situs and Judge

In a thread about the Williams wall suspensions, I used the term, Potemkin Village in a descriptive sense.
See http://en.wikipedia.org/wiki/Potemkin_village , and scroll down to its use in the legal sense.

9.29 miles from the metrodome. This federal courtroom.

The appeals on a federal level will be heard in the 8th Federal District Court of Appeals. That court is located in the exact same place. I think the next logical definition is in order, even if this is (mostly, hopefully-tongue in cheek humorous)

See http://en.wikipedia.org/wiki/Kangaroo_court 


The Judge in the Federal proceedings:

See http://en.wikipedia.org/wiki/Paul_Magnuson 


In his personal life, he is a lifelong fan of the Minnesota Twins and Minnesota Vikings.



In the state Court, Judge Gary Larson (not related to the former Viking player, it has been pointed out by the Minneapolis Star-Tribune) has and will continue to preside. He is a Minnesota native as well, but he is a Gopher fan, and doesn't follow the NFL that much.

Any of this relevant?

You be the judge.
dfosterf
15 years ago
Who sued who.

Many think that Roger Goodell got sued, and in a sense, he did. He was not a named defendant, however. This is germane, because there were named defendants in this case, and I will post on the relevance of that later.

Many also assume that Charles Grant, Deuce McAllister and Will Smith of the New Orleans Saints were plaintiffs in this action. That is not true.

The actual parties:

National Football League Payers Association, Plaintiff.

v.

National Football League, and
National Football League Management Council, Defendants.

___________________________________________________________

Kevin Williams and Pat Williams, Plaintiffs.

v.

National Football League, John Lombardo, M.D., Brian Finkle, and Adolpho Birch, Defendants.


Lombardo, Finkle and Birch...what they said and did is the meat of the matter for the NFLPA and the Williams' boys.
dfosterf
15 years ago
Some background outside the courtroom.

A possible explanation of where the Williams' wall got the idea to take StarCaps in the first place.

Buffalo Bills players associated with Starcaps 

Williamses to subpoena Bills about StarCaps
By Mark Gaughan
NEWS SPORTS REPORTER
Updated: April 29, 2009, 4:45 PM / 0 comments

Minnesota Vikings defensive linemen Pat and Kevin Williams plan to subpoena the Buffalo Bills to produce documents about a dietary supplement that they took, which caused them to receive a four-game suspension from the NFL.
The two players are trying to get their suspension overturned via a federal lawsuit against the NFL in St. Paul, Minn. They took the weight-loss supplement, called StarCaps, in order to avoid being fined by the Vikings for being overweight. However, the product was contaminated with a prescription drug that can be used to mask steroids. As a result, they tested positive for a banned substance as part of the NFLs steroid policy.
According to the St. Paul Pioneer Press, Peter Ginsberg, the attorney representing the Williamses in their lawsuit, said during a hearing last week that StarCaps were freely distributed in the Bills locker room and that a number of Buffalo players used StarCaps. Pat Williams played for the Bills from 1997 to 2003. Ginsberg did not say who allegedly dispensed the supplement and to which players.
The Bills issued a statement denying the allegation through Scott Berchtold, team vice president of communications. It read: We have never heard these allegations, and we are not aware of anyone representing the Bills distributing StarCaps, an over-the-counter weight-loss supplement, to players. These allegations were made by an attorney and not by any players.
StarCaps was advertised as the diet supplement of the stars, in reference to Hollywood stars. It purported to be the quick, effective way to melt off 10 to 125 pounds. Unlike steroids, it is not used to gain a competitive advantage on the field, other than to lose weight.
It remains to be explained what motivation a team official would have to distribute a supplement designed to allow a player to skirt team rules without a competitive edge.
Pat and Kevin Williams were scheduled to give depositions in the case Tuesday in Minneapolis. They are suing the NFL for $10 million in damages. The NFL Players Association joined the federal suit in Minnesota on behalf of New Orleans Saints linemen Will Smith and Charles Grant and former Saints running back Deuce McAllister, who also were suspended.
Trial is set for June 15. The union is prepared to argue for a summary judgment during a May 14 hearing before Judge Paul A. Magnuson, who is expected to order both sides into settlement talks.




Why they say they took them. (Note how this is a violation of their contract editorial off)

Williams' explain why they took Starcaps 

Vikings explain why they took banned diuretic
Comment Email Print Share
ESPN.com news services

Minnesota Vikings defensive tackles Kevin and Pat Williams, who were among six players suspended four games by the NFL for testing positive for a diuretic, said they used the banned substance because they had $400,000 in incentive bonuses in their contracts if they met, or were below, a specific weight during several weigh-ins throughout the year.

The Minneapolis Star Tribune reported the story in Wednesday's editions. The newspaper obtained details from a Dec. 2 letter sent by the NFL to the Williamses' lawyer, which was part of the filings in the the players' suit against the league to nullify their suspensions for violating its anti-doping policy.

The two Vikings tested positive for Bumetanide, which can be used for rapid weight loss or as a masking agent for steroids. They hoped to avoid suspensions because the product they used, StarCaps, did not list Bumetanide as an ingredient.

The NFL Players Association filed an appeal on the players' behalf, but the league denied the appeal, saying it issued a warning about the product in 2006.

According to the Star Tribune, the letter states that both Williamses are subject to receive bonuses if they met or were below a specific weight 11 times during the year -- eight during the season, three in the offseason.

However, the letter specified that the players "would not engage in any 'last-minute weight reduction techniques,' which included 'use of diuretics,'" the Star Tribune reported.

Pat and Kevin Williams, who are not related, have been active in Minnesota's lineup because a federal judge has blocked the suspensions.

The NFL wants an appeals court to reconsider the order, according to court documents filed Monday in U.S. District Court in Minnesota.
The Vikings lead the NFC North with a 9-6 record and can win the division with a victory over the New York Giants in Sunday's regular-season finale.
Information from The Associated Press was used in this report.

dfosterf
15 years ago
More background.

This is what is going to ultimately "do-in" the Williams' wall, imo.

The legal term is.

"The Garmon Preemption"

An example, (And this is one from Minnesota)

LINK 

Author(s): S. Kato Crews
Published: 06/01/2005
The Supreme Court recently let stand a case holding that the National Labor Relations Act ("NLRA") preempted state law claims brought by a non-union company against a union "salt." (A "salt" is a union organizer who tries to get hired at a non-union company in order to organize the company from within.) The decision is a good reminder of the well-settled doctrine of Garmon preemption, which holds that the NLRA preempts state law claims for relief that are based on conduct that is "arguably" protected or prohibited by the NLRA. San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236 (1959).
The case left alone by the Supreme Court was a Minnesota Court of Appeal's decision. Wright Elec. v. Ouellette, 686 N.W.2d 313 (Minn. App. 2004), cert. denied June 20, 2005. In that case, Thomas Ouellette, a union "salt," lied on his employment application with Wright Electric in order to hide his union affiliation. When the company discovered his deception, it fired Ouellette for "falsifying information on [his] employment application." It then sued Ouellette in state court, bringing Minnesota state law claims against him for breach of at-will employment contract, breach of fiduciary duty and duty of loyalty, recovery of salary and benefits, and unjust enrichment.
The Minnesota appeals court reversed the lower court's finding that Wright Electric's claims were not preempted by the NLRA. The appellate court noted that the NLRA protects a union member's right to "salt" non-union workplaces, which includes the right to lie when applying for employment in order to hide his or her union affiliation. Finding that "salting" was "arguably" protected by the NLRA, the appellate court ruled the company's claims were preempted by the federal statute.
Preemption under the Garmon doctrine does not require that a plaintiff have a certain remedy before the National Labor Relations Board ("NLRB"), the federal agency that enforces the NLRA, or even that the NLRB will hear the claim in the first place. Bassette v. Stone Container Corp., 25 F.3d 757, 759-60 (9th Cir. 1994). Instead, once a court determines that a plaintiff's claim alleges conduct that is "arguably" or "potentially" subject to regulation or protection under the NLRA, federal labor law preempts state law and the NLRB has exclusive jurisdiction.
Practical Significance
Employers should remember that certain state law claims brought against them by their employees, or their employees' union, may be preempted by the NLRA. For example, several federal courts have held the NLRA to preempt state law claims against an employer alleging the employer fraudulently induced employees to ratify certain terms contained in a collective-bargaining agreement. These claims are "arguably" prohibited by the NLRA's provisions requiring an employer to bargain in good faith. Depending on the employer's particular circumstances, and the particular claims asserted against it, the Garmon preemption doctrine could be an advantageous tool for employers. At the same time, employers, particularly non-union employers, should gain an understanding of what rights and protections the NLRA affords all employees in order to avoid NLRA preemption of any claims it may assert against an employee or union.
A partner in RJ&L's Colorado Springs and Denver offices, S. Kato Crews represents and advises business clients in all aspects of their endeavors. While his practice is focused on general litigation matters, Kato practices in the areas of labor and employment law, representing employers in all aspects of the employment relationship. He joined the firm after serving as an attorney with the U.S. National Labor Relations Board. Kato practices in the firm's Colorado Springs and Denver offices. He can be reached at 719-386-3017, or by e-mail at kcrews@rothgerber.com.

ATTORNEYS
S. Kato Crews
AREAS OF PRACTICE
Labor and Employment



The doctrine is established and based upon a rather impressive document.

Article 6, clause 2; U.S. Constitution 

In the Williams' case, they have one huge problem with the National Labor Relations Act, and the authority of the National Labor Relations Board...All as enacted by the legislative branch of the U.S. government and in accordance with the Constitution as outlined in Article 6.



Federal preemption 
dfosterf
15 years ago
More background.

Take a moment to attempt to negotiate around the website. This would be your nutritional expert.

WTF Nikki Hasskell 

It is one thing to read that the pills were marketed by (and to) celebrity-types, I find it interesting to see what is meant by that.

The link does that quite well, imo.

I guess some would argue that the Williams' were taken in by the authority and expertise of the originator of the product.

From her website:

COVER STORY (from Beverly Hills 213)
Over 30 years ago, Nikki Haskell was a divorced housewife who had never worked a day in her life. At the time, there were not a lot of career opportunities for women in business, so Nikki did what seemed most natural thing to her at the time: become the first female stock broker on Wall Street.
I grew up in Beverly Hills, from the last generation of women that didnt work. Nikki explains. The W word was never spoken in our home. So I was just going to grow up get married, and live happily ever after. And then I got married and divorced, and as a fluke decided to invest in the stock market and ended up making a couple of million dollars. I did so well trading the market, I figured I may as well become a stock broker. It never occurred to me that Id be the only woman.
Filled with dazzling arrays of various talents and a strong drive, Nikki was unhappy with the limits that a corporate structure imposes, so she moved on to the next most natural stage of her career: she hosted her own television show.
I used to say that I lived at Studio 54, but kept an apartment on 68th street. A friend threatened to send me to Disco Anonymous, so I decided I better make a living out of dancing and going to parties, so that s what the show was.
The Nikki Haskell Show, which she also produced, wrote, and edited, ran for 300 episodes on early cable television and is considered the first reality show. She went on location to countries around the world (covering Carnivale in Rio) and was the first to interview Donald Trump, who at the time, was married to Nikkis close friend, Ivana.
As if flying around the world, attending lavish parties, and interviewing celebs wasnt enough, in the interim Nikki created what she would ultimately become known for: StarCaps.
I was always on a diet, Nikki says. Even when I was a stock broker, I would take a break and go weigh myself. I was born on a diet-my mother put me on a diet at birth.
Hating exercise, Nikki wanted a diet pill that could help her lose weight. She combined a few products on the market to create her own, took it to a pharmaceutical company, and voila! StarCaps was born.
I got them to2,500 GNC stores, the Vitamine Shoppe, Great Earth, and other stores all over the planet. I have single-handedly taken it to new stores myself, gone to conventions, and done whatever it takes to get it out there.
But the reason for the products immense success, she says is that it works.
For people to have been taking it consistently for 25 years, it has to work.
It is named StarCaps to reflect the many celebrities that use and endorse it?
A lot of people think that, Nikki says laughing. Yes, a lot of celebs take it, but a lot of everybody takes. Its named after those gold stars that you get in school when you do something right.
Also in Nikkis line of health and diet products is her StarCruncher, a resistance exercise item which comes with and instructional DVD (shot at famed producer Robert Evans house) and features astronaut Buzz Aldrin, supermodel Beverly Johnson, and Joan Collins. And, while creating diet products has brought Nikki much notoriety (and financial comfort), shes much more than just an entrepreneur. Shes also a painter, writer, web designer (her website, www.starcaps.com, has been on-line since the beginning of the internet), photographer and art collector. But her true passion lies in something much more serious: throwing parties.
Theres nothing I like to do more in the whole world that to throw parties, she says. I m a people person, I know so many people from so many different walks of life, from different parts of the world, I feel like its my responsibility to bring these people together. When I had my TV show, Id throw six parties a month. Im really not a happy camper if I m not working on a good party.
Te key ingredient is a great party?
The most important thing are the people, she says. Its important to mix all different people together. Ive given parties for Ivana Trump, Cher, Michael Jackson..at my parties, people come early and stay late.
Nikki says that what she likes the most about her life is being with her friends.
I dont have children, Im not married, and I dont have any pets, so many family these days are my friends, and I have wonderful friends all over the world.
While listing of her many plans for the future (writing an autobiography, more parties winning an Oscar, etc) Nikki allows herself to become a touch retrospective.
My father died when I was a little girl. I did everything on my own, and Im very proud of the things Ive accomplished in my life, but know what? Ive only just begun.
She continues: In this life, you have to be overdressed and ready to go 24 hours a day, because youll never know youre going to be , or who youre going to meet.

Formo
15 years ago
First, you have too much time on your hands.

Second, I would not be surprised to hear the truth that the reasons the Williams' Wall were taking StarCaps are: (A) what was stated in an above post, that they honestly needed to keep at a certain weight.. They just picked the wrong product, or (B) they want to try and mask their mary-jane addiction.

What I find somewhat intriguing is how adamant the Williams' Wall is with their case(s). Which almost leads me to believe that they really are telling the truth.

Personally, I just wish this thing were all over.
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dfosterf
15 years ago

First, you have too much time on your hands.

"Formo" wrote:



The most truthful statement in the whole saga.

Second, I would not be surprised to hear the truth that the reasons the Williams' Wall were taking StarCaps are: (A) what was stated in an above post, that they honestly needed to keep at a certain weight.. They just picked the wrong product, or (B) they want to try and mask their mary-jane addiction.



I lean towards both. Trying to make weight, for an almost certainty in the Williams' case. I would also bet that they knew that the pills contained "something" besides the listed ingredients to make them act like fast pee-pee makers. Witness their proliferation in Bills' locker room. Taking these pills the night before a weigh-in (Hello, I'm peeing here...alot--a question one might reasonably ask oneself)

I think these pills were in the "quick, gotta make my weight" culture of the NFL, plus the "Damn, I gotta get below the 15ng/mil for a positive on a pot test threshold" cultures of the NFL.

The court and parties stipulated only one thing. They stipulated that there was no evidence of Steroid use. The court has left open the examination of those drug tests for the state to review. This will be potentially damning. I warned of this last year, and it just might come to pass.

What I find somewhat intriguing is how adamant the Williams' Wall is with their case(s). Which almost leads me to believe that they really are telling the truth.



I think it more plausible that their attorneys are just taking as many "bites at the apple" as is possible, confusing some "wins" in the courtrooms as regards the TRO's with "wins" as to the merits. They are not alone. Many think that the attorneys have won something on the merits in a courtroom. The reality is that they have won absolutely nothing as regards the merits, including, very surprisingly, the aspect that got this case remanded to the State courts. The Williams' had requested that the Federal Judge rule on the merits, and he denied their motion. About .01% of the folk weighing in on this matter seem to know that part.

Reminder--TRO= Temporary Restraining Order

Personally, I just wish this thing were all over.



Not me! See your first statement. It is absolutely fascinating what the perception vs. the reality are in this case.

If you are too tired of it, I am about to torture you. This case has been written on by the associated press, all the national media, and mostly by the MInneapolis Star-Tribune. All have weighed in on what was said, and the decision rendered...agreed?

Try and find the ruling by Judge Magnuson. I will tell you upfront that it is there.

Try and find it. Let me know how easy that was. Maybe you will get lucky.
TheEngineer
15 years ago
When I get some time I'll definitely be reading all of this. Thanks for succinctly organising it!
blank
dfosterf
15 years ago
More background...

Dr. John Lombardo testifies before Congress 

Remember him?

A named defendant by the Williams' wall plaintiffs.

Another named defendant...

Dr. Bryan Finkle testifies before Congress 

And finally, the last named co-defendant in the suit.

NFL General counsel interviewed by Vanderbilt University regarding drug policy 

Heck, we are almost ready to get to the trial, LOL

(This is, after all, a legal proceeding being discussed...What did you expect)
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