Impartial Arbitration in NFL?

As I’m sure you’ve read on every sports website, yesterday U.S. District Court Judge Paul Magnuson upheld the NFLPA’s injunction against the NFL.  This means that the five players which the NFL is attempting to suspend for testing positive for a banned substance, bumetanide, will be permitted to continue playing – likely for at least the remainder of the season.  Bumetanide is a diuretic that is often used to mask steroid use.  However, in this case it was found in a popular supplement called StarCaps, which is used by players to cut weight.  From the evidence currently available, it appears that none of the players knew Bumetanide was in StarCaps and none of them was using the supplement to mask steroids.  However, the NFL was aware that StarCaps contained Bumetanide, but did not inform the players or NFLPA of their findings.  Instead, they tested the players, found the banned substance, suspended the players,…. then told them, “by the way, StarCaps contains Bumetanide – GOTCHA!” …Well, maybe it didn’t quite go down that way, but you get the drift.  The NFL knew the substance was contained in the product and, whether intentionally of not (I personally find it highly unlikely that it was intentional), failed to tell the NFLPA, as they had done in the past when banned substances were found in other supplements.

Ok, now that I’ve repeated the story from every sports journalist in the country you’re surely asking, “tell me something I don’t know?”  Well, the part of this story that I find the most interesting is the NFL’s internal arbitration procedure.  You see, prior to this case making it into the U.S. court system, it was evaluated by an arbitrator who determined that the NFL was correct in suspending the players for violating the league’s anti-doping rules.  So, who was the arbitrator?  None other than the NFL’s Chief Legal Officer, Jeffrey Pash…  I’ve worked with several sports leagues over the years and, unfortunately, this is a relatively common practice, but that surely doesn’t make it any more impartial!  For a league like the NFL to utilize it’s own CLO as an arbitrator in a suspension appeal that it itself is trying to enforce is just a bad practice.  It’s not as if the NFL is small-time league that can’t afford to retain a neutral third party arbitrator, many smaller and more progressive leagues do this all the time.  Heck, when I was General Counsel for the Champ Car World Series, I surely didn’t evaluate appeals.  Intead, I would bring in a panel of three neutral arbitrators to hear the case.  I submit that this is exactly what the NFL should be doing.   Afterall, the public demands impartiality in sports leagues when it comes to on-field activities, shouldn’t it be the same off the field?

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.