Opposition Brief — National Football League v. Williams

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Supreme Court of the United States

Clik NATIONAL FOOTBALL LEAGU]

On PevitTion FOR A WRI? OF CERTIORARU TO THE UNIVED

States Court Or ArpeALs For Tie Esauru Cirncen

BRIEF OF RESPONDENTS IN OPPOSITION

no Rat PETER R GINSBERG

I'L NN GASKINS Counsel of Recor

INETT, LLP CHristiINAN Bureo

33 South 7th Street, (HINSBERG & BURGOS P!

Suite 2900 12 East 49 Street 30th Il

Minneapolis, MN 55402 New York NY 10017

612) 883 Gb00 (646) 374 0029

peinsberg@pimnsbe

lurros com

Counsel for Te spondents

. : yyy : i AVP ;

AeCVINR Vj 4L1QINS and Pat Willrams

eee -_—~— - _—_——_ + — ~ a ~~ ~~ —— — —_—

QUESTION PRESENTED

Kevin Williams and Pat Williams (“Williamses”

or “Respondents”) are professional football players

employed by the National Football League (“NFL” or

“Petitioner”). The Williamses play for the Minnesota

Vikings. The NFL, by conducting drug testing in the

State of Minnesota, had an obligation to know and to

abide by Minnesota State drug testing laws. It failed

in both regards.

The NFL contends that § 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C.

§ 185, preempts certain Minnesota state statutory

claims which regulate drug testing. The NFL is

wrong. The federal district court considered the

NFL’s arguments and defenses; determined that the

Williamses’ claims were not preempted by the

LMRaA; and properly remanded the state law claims

to state court.

A bench trial was held on claims brought under

the Drug and Alcohol Testing in the Workplace Act

(““DATWA”), Minn. Stat. § 181.950-957. Pet. App.

938a-1l4a. The NFL was found to have violated

DATWA but the trial court declined to continue the

injunction that prevented the NFL from suspending

the Williamses. The Williamses have appealed

whether it was error for the trial court to decline to

issue a permanent injunction in light of the NFL’s

violation of DATWA. Briefing in the Minnesota

Court of Appeals is complete and the parties await

oral argument.

The question presented is whether this Court

should exercise certiorari review where (a) the

underlying dispute could be rendered moot within a

few months by affirmance of the Minnesota appellate

courts of the decision allowing for the suspension of

the Williamses; (b) a threshold jurisdictional defect

precludes this Court’s review altogether because,

under 28 U.S.C. § 1447(d), appeals from orders

remanding cases to state courte are not appealable,

notwithstanding this Court’s holding to the contrary

in Carlsbad Tech., Inc. v. HIF BIO, Inc., U.S. _,

129 S. Ct. 1862 (2009), premised on Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S, 336 (1976),

which “was questionable in its day and is ripe for

reconsideration in the appropriate case,” Carlsbad,

129 S. Ct. at 1868 (Scalia, J., concurring); (c) where

the question purportedly presented by the Petition

whether defenses are relevant in a § 301 preemption

analysis — arises only in connection with a claim

brought pursuant to the Lawful Consumable

Products Act (““LCPA”), Minn. Stat. § 181.938, on

which the NFL obtained summary judgment in a

ruling from which the Williamses have not appealed;

and (d) no circuit split is presented

PARTIES TO THE PROCEEDING

The caption contains the names of al]

parties to this proceeding

The Nationa! Football League Player

Association, the National Football Leagut

Management Council, Adolpho Birch, Dr. John

Lombardo, and Dr. Brian Finkle were parties in the

consolidated proceedings below, but are t}

LiCl

petitioners nor respondents in this Court

hel

TABLE OF CONTENTS

QUESTION PRESENTED ..

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATEMENT

PROCEDURAL HISTORY

REASONS FOR DENYING THE

"ETITION

Il. THE PETITION MAY SOON BE MOO'1

Il. THE COURT OF APPEALS LACKED

JURISDICTION UNDER

28 U.S.C. § 1447(D)

[1]. THE ISSUE ON WHICH THE NFL

SEEKS REVIEW IS NOT PROPERLY

PRESENTED.

IV. THERE IS NO CONFLICT IN THI

COURTS OF APPEALS WARRANTING

THIS COURT’S REVIEW .

V. THE NFL CANNOT CONTRACT FOR

WHAT IS [ILLEGAL UNDER STATI

LAW

VI. CONGRESS DID NOT PREEMPT OR

CREATE LAWS THAT CONFLICT WITH

rHE STATES’ RIGHT TO REGULAT!I

DRUG TESTING. ..... A

VII ‘THE CLAIMS IN THIS CASE AR!)

NOT PREEMPTED BECAUSE THE

COLLECTIVE BARGAINING

Pape

\GREEMENT NEED Nort BI

MXAMINED TO DETERMINI

CLAIMS

ONCLUSION

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Gardner-Denver Co., 415

a sap usliannaien 20

Allis-Chalmers Corp. v. Lueck, 471 U.S.

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Braxton v. United States, 500 U.S. 344

RRR ese ORD NO cE COS OO eT 9

Brown v. Holiday Stationstores, Inc., 723

F. Supp. 396 (D. Minn, 19GD) ......0cccecersreeessessanes 27

Carlsbad Tech., Inc. v. HIF BIO, Inc., __

+S Gs 5 Be Be US) ne ili, 10

Caterpillar, Inc. v. Williams, 482 U.S. 386

)__-__, EPNIDSRE Renee narCr et” oes Reem 23, 24, 27

Clark v. Kellogg Co., 205 F.3d 1079 (8th

RRR URED ree set CNG Re ea 25

Cramer v. Consol. Freightways, Inc., 255

Be ie Cee CRIN GIN, BI Dievneninsscececsscesessesstcnsessiones' 27

Cuomo v. Clearing House Assoc., L.L.C.,

657 U.S. __. 129 &. Ct. 2710 (2008) .................. 19

Deakins v. Monaghan, 484 U.S. 193

RSE RR IMEI reat ct reef et oP ae 8

DeFunis v. Odegaard, 416 U.S. 312 (1974)............. a

Farmer v. United Bhd. of Carpenters and

Joiners of Am., Local 25, 480 U.S. 290

Vill

Fed. Baseball Club v. Nat'l League, 259

BPM I WII Sys stand csusachcccbnardankoadasiassisscsasanans 21

Ferrell v. Cross, 557 N.W.2d 560 (Minn.

ED dedckae Ascetic tad ut icaea cua isks ck taxustabesosivencevieviis 20

Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 463 U.S. 1

a, tetra ice este edie te psLddataixacasnavensncxoannanc 24

Fry v. Airline Pilots Ass'n, 88 F.3d 831

+ __: SHRRAR EASIER eee Oa 16

Graham v. Contract Transp., Inc., 220

Be Fr i, BO aisinicisinsisvicsnanadasercreess 15, 26

Humphrey v. Sequentia, Inc., 58 F.3d

1288 (8th Cir. 1996)................... iteeumsasd saben eas 26, 27

Jones v. Flowers, 647 U.S. 220 (2006) ...........cceeeseeeeeee 8

Karnes v. Boeing Co., 335 F.3d 1189 (10th

oe och cana cies tae eescatceeri macsices 27, 28

Lewis v. Continental Bank Corp., 494 U.S.

Fe I iene Pisa ca neni cece eed cistgnueconvuneionns 8

Lingle v. Norge Division of Magic Chef,

BG g SBS UB. SOO CLG BS) vanes cnncncenscscccscecerseeses 24, 25

Livadas v. Bradshaw, 512 U.S. 107 (1994) .............. 15

Local 174, Teamsters of Am. V. Lucas

Fiour Co. S60 U.S. SE (AGES) .sccrsscccsccsscsssnvecessns 23

Lodge 76, Int'l Assoc. of Machinists and

Aerospace Workers v. Wisconsin

Employment Relations Comm’n, 427

Se Ia sia aoe ren cetaa has ssancusecpcaieiaencins 18

Metro. Life Ins. Co. v. Massachusetts, 471

Ei ae 0 eaves ennvtcesncssdavenemdccoorss 18, 19, 21

Meyer v, Schnucks Markets, Inc., 163 F.3d

S0GE a ,. Bt els idcdteoGeroa eee

Neppl v. Signature Flight Support Corp.,

234 F.Supp.2d 1016 (D.Minn. 2002)... 20

Osborn v. Haley, 549 U.S. 226 (2007)..........cceeeeees 9,10

Quackenbush v. Allstate Ins. Co., 517 U.S.

A nasickcctsvavinssininccbbecesn conse 9

Retail Clerks v. Schermerhorn, 375 U.S.

eC i ikdnsanstcncresncett teeckicoaeedsnasdisceeienniae 21

Sec. and Exchange Comm’n v. Medical

Comm. for Human Rights, 404 U.S.

ERR ERR ee E EL OLENA ERED ORSEE ENE! 7

Smith v. Colgate-Palmolive, 943 F.2d 764

CFR Rot BED cinvinsvcsqecssaseostinteeaaacsasiereaae 16

South Central Bell Tel. Co. v. Alabama,

SP U.S. DE Cinictntceciccies cence 11

Sprewell v. Golden State Warriors, 266

Fe BTS Ce Ca Se ix pecssivistnabeiensvenenexanens 16, 17

St. John v. Int? Ass’n of Machinists and

Aerospace Workers, 139 F.3d 1214

eC: SG hicinstitcatneaeee 19

Textile Workers Union v. Lincoln Mills,

SES UB Ba a ivsccctcctitanddececee 23

Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976).. iii, 9, 10, 11

Things Remembered, Inc. v. Petrarca, 516

US. TER ee ikcinrecticuiiionninaaisane 9

Thompson v. Hibbing Taconite Holding

Co., No. 08-868 (JRT/RLE), 2008 WL

4737442 (D. Minn. Oct. 24, 2008)..........0. ee 28

Umphrey v. Fina Ou & Chemical Co., 921

F.Supp. 434 (E.D.Tex. 1996)...........ccccccsssresssssees 27

United States v. Estate of Romani, 523

AL 8

Valles v. luy Hull Corp., 410 F.3d 1071

eee icicncetisessesvesesenens esses mabaaekieis 15

Williams uv. Nat’l Football League, 582

EEE, MIMI snescosevoncscorscssessesssevessevesvese 1

Williams v. Nat'l Football League, 598

i l

Williams v. Nat'l Football League, 654 F.

Supp. 2d 960 (D.Minn. 2009)........00...0cccceeeeeees 1

Wyeth v. Levine, No. 06-1249, 555 U.S.

___; 129 S. Ct. 1187 (Mar. 4, 2009)............... 17, 19

STATUTES

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| 27

OTHER AUTHORITIES

Government-wide Implementation of the

Drug-Free Workplace Act of 1988, 55

FO, FN, Be Cee cisshichssnseeriesscasanseses Pree 3 |

Hearing on HF 1108 Before the H.

Commerce and Financial Institutions

Comm., 2005 Leg., 84th Sess. (Minn.

SINT acsiviacdstinniiescuamicnmniesasstrtmasere tetas SAR iehe

BRIEF OF RESPONDENTS IN OPPOSITION

Respondents Kevin Williams and Pat Williams

respectfully submit this brief in opposition to the

Petition filed by the NFL.

The Petition should be denied because it may

well be rendered moot before the Court could render

a decision on the merits; because the Court lacks

jurisdiction over the appeal under 28 U.S.C. §

1447(d); because the question purportedly presented

is not actually presented given the NFL’s state court

victory on respondents’ LCPA claims; and, because

there is no relevant disagreement among the courts

of appeals requiring the Court’s resolution.

OPINION BELOW

The opinion of the court of appeals is reported at

582 F.8d 863. Pet. App. la. The court of appeals

decision denying rehearing and rehearing en banc is

reported at 598 F.3d 932. Pet. App. 66a. The final

judgment of the district court is reported at 654 F.

Supp. 2d 960. Pet. App. 42a.

JURISDICTION

The judgment below was entered on September

11, 2009. Pet. App. la. Petitions for rehearing and

rehearing en banc were denied on December 14,

2009. Pet. App. 66a. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATEMENT

The underlying facts of this case are undisputed.

For two years, the NFL possessed scientific evidence

that a seemingly innocuous, over-the-counter product

called StarCaps contained an _ undisclosed,

potentially lethal controlled substance called

Bumetanide. Bumetanide is on the NFL’s list of

prohibited substances, but nothing on the label or

packaging of StarCaps indicates that Bumetanide is

present in the product. Res. App. 4a at 22. Neither

of the Williamses has ever taken steroids or

performance enhancing drugs. Res. App. 2a-3a at 7,

16.

The NFL knew since 2005 that NFL players were

using StarCaps yet failed to disclose the health risk,

or the risk that usage violated the NFL steroid

policy, to players, including the Williamses, and

then, starting in 2008, punished players for using

that product without any notice or explanation. The

NFL contends that it was defending its strict liability

steroid policy by suspending the Williamses. Lower

federal and state courts have all rejected the NFL’s

defense since it has been proved that the NFL had a

“secret policy” not to suspend NFL players who

tested positive for Bumetanide from as early as 2005

until sometime in 2008.

In July and August 2008, the Williamses and

other NFL players tested positive for Bumetanide.

Reversing years of policy — and playing what the

Minnesota state trial court, after a bench trial,

characterized as “a game of gotcha” — the NFL

suspended the Williamses for four games without

pay. Res. App. 21a at 154.

The NFL detected usage of StarCaps by invoking

a drug testing procedure that indisputably and

materially violated DATWA. The NFL’s conduct also

violated the clear public policy of Minnesota.

Minnesota has a right to police the NFL’s drug

testing activity in Minnesota.

PROCEDURAL HISTORY

The NFL and the National Football League

Players Association (“NFLPA”) are party to a

nationwide collective bargaining agreement (“CBA”),

which incorporates the NFL Policy on Anabolic

Steroids and Related Substances (the “Policy”). Pet.

App. 115a-157a. The CBA affords players a right to

appeal drug-related suspensions. That appeal was

heard by NFL Vice President and General Counsel

Jeff Pash on November 20, 2008. On December 2,

2008, Pash issued a decision upholding the

suspensions. Pet. App. 77a-91a.

On December 3, 2008, the day after the NFL

issued an arbitration decision suspending the

Williamses for four games for their alleged violation

of the NFL’s Policy, the Williamses filed an action in

District Court of the Fourth Judicial District of the

State of Minnesota for the County of Hennepin and

sought injunctive relief. Following extensive oral

argument, a temporary restraining order against the

NFL’s suspensions was granted.

On December 4, 2008, the NFL removed the

matte: to the United States District Court for the

District of Minnesota.! Following summary judgment

1 The Williamses originally sued the NFL and certain

NFL representatives for fraud, breach of fiduciary duty, aiding

and abetting breach of fiduciary duty, violations of public

policy, constructive fraud, negligent misrepresentation,

negligence, gross negligence, vicarious liability under the

doctrine of respondeat superior. Since the NFL removed the

case to federal court the day after the Williamses’ state court

filing, the Williamses’ amendment of the complaint to include

[Footnote continued on next page}

motions in federal court, Honorable Paul A.

Magnuson, on May 22, 2009, ruled that the

Williamses’ common law claims were preempted by §

301 of the LMRA but that the DATWA and LCPA

claims were not preempted. On May 22, 2009, the

district court remanded the DATWA and LCPA

claims to state court, declining to exercise

supplemental jurisdiction over them because they

raised significant questions about “the public policy

of the state of Minnesota.” Pet. App. 64a.

The United States Court of Appeals for the

Eighth Circuit affirmed the district court in all

respects. With regard to the DATWA claims, the

court noted that “section 301 does not preempt state

law claims merely because the parties involved are

subject to a CBA and the events underlying the claim

occurred on the job.” Pet. App. 15a-16a. Because “a

court would have no need to consult the Policy in

order to resolve the players’ DATWA claim,” and

because the NFL could “not point to a specific

provision of the CBA or the Policy which must be

interpreted,” the court of appeals concluded that the

Williamses’ DATWA claims were not preempted by §

3801. Pet. App. 19a, 22a. The NFL’s petitions for

rehearing and rehearing en banc were denied on

December 14, 2009. Pet. App. 66a-77a.

[Footnote continued from previous page]

claims under DATWA and the LCPA, on January 2, 2009,

occurred while the case was in federal court.

The state trial was held from March 8 through

March 12, 2010.2 The court issued findings of fact

and conclusions of law on May 6, 2010, holding that

the NFL had violated DATWA’s three-day notice

provision for notifying players of a positive test, but

refusing to enjoin the NFL permanently from

suspending the Williamses. Res. App. la-37a. The

court concluded that “Kevin Williams and Pat

Williams were not harmed by Defendant NFL’s

DATWA violation,” and therefore “(p]laintiffs failed

to establish success on the merits.” Res. App. 23a,

36a.

On May 21, 2010, after the Williamses requested

a stay of the order pending appeal, Judge Larson

refused to dissolve the temporary restraining order

pending appeal and stayed entry of the final order

pending appeal of the order refusing to dissolve the

injunction. Res. App. 38a-49a.

The Williamses appealed from the May 6, 2010

order to the Minnesota Court of Appeals on May 25,

2010. The briefing of that appeal was completed on

2 DATWA provides broad protections to Minnesota

employees who are subject to employer drug and alcohol

testing. It establishes, inter alia, criteria for testing

laboratories, procedures employers must follow, and

disciplinary limitations for those who test positive. Minn. Stat.

§§ 952-955. The LCPA prohibits employers from disciplining

employees because “the employee engages in or has engaged in

the use or enjoyment of lawful consumable products” —

products such as StarCaps — “if the use or enjoyment takes

place off the premises of the employer during nonworking

hours.” Minn. Stat. § 181.938.

August 30, 2010. Oral argument is expected this fall

and a decision shortly thereafter. Either party can

seek discretionary review in the Supreme Court of

Minnesota, but otherwise judgment on the

Williamses’ DATWA claims will be final in all

respects unless one of the parties petitions for review

by this Court.

After briefing before the Minnesota Court of

Appeals was fully submitted, the NFL filed a motion

to dismiss the appeal on September 8, 2010,

asserting that the Williamses had not properly

perfected an appeal from the trial court’s final

judgment. The NFL claimed, inter alia, that the

appeal was moot and that there is no justiciable

controversy to be heard before the court of appeals.

Res. App. 60a-61a. That motion is pending before the

Minnesota Court of Appeals.

REASONS FOR DENYING THE PETITION

I. THE PETITION MAY SOON BE MOOT.

The ongoing state court litigation may soon

render the Petition moot.

The Minnesota state trial court has denied the

Williamses the relief they seek, a permanent

injunction on the merits of the state statutory claims.

See Pet. 6 n.1, 17 n.3 (noting that the trial court

“entered judgment for the NFL” on the DATWA

claims and “granted summary judgment for the NFL

on the LCPA claim”). The Williamses have appealed

to the Minnesota Court of Appeals from the post-trial

order relating to the DATWA claims. Appellate

briefing in that case was completed on August 30,

2010, and a decision is expected within a few

months. Because the Minnesota Supreme Court's

review is discretionary, and because that court

typically decides whether to grant review within

sixty days of a decision by the Minnesota Court of

Appeals, the NFL may secure a final judgment on

the DATWA claims well before the end of this

Court’s October Term 2010.

Moreover, the NFL recently moved the

Minnesota Court of Appeals to dismiss the

Williamses’ appeal in the state system altogether.

Res. App. 56a-68a. The NFL has taken the position

that, while the Williamses timely appealed the

Minnesota trial court’s May 6, 2010 post-trial order

setting out findings of fact and conclusions of law,

and although the state court stayed entry of the trial

order, the Williamses did not timely appeal the final

judgment entered by an administrative clerk of the

Minnesota trial court on June 7, 2010,

notwithstanding the court’s stay order. Accordingly,

the NFL’s current litigation position in the

Minnesota Court of Appeals is that there presently

exists an unappcaled “final determination of the

rights of the parties” with respect to these claims.

Res. App. 5la. Should the NFL’s motion be granted

— it is fully briefed and pending adjudication — it is

even more likely that the judgment in the state

system will become final before this Court receives

briefing, hears oral argument, and renders a decision

on the merits.

A final state court decision in the NFL’s favor on

the DATWA claims would render the Petition for

moot. It is elementary that this Court will not decide

moot disputes. Sec. and Exchange Comm'n v.

Medical Comm. for Human Rights, 404 U.S. 403, 407

(1972) (“Our lack of jurisdiction to review moot cases

derives from the requirement of Article III of the

Constitution under which the exercise of judicial

power depends upon the existence of a case or

controversy”) (internal quotation marks omitted).

This Court will dismiss a writ of certiorari when a

case becomes moot. See Deakins v. Monaghan, 484

U.S. 198, 199 (1988).

Although the mootness doctrine excepts the rare

cases that are “capable of repetition, yet evading

review,” that exception applies only where “(1) the

challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same

complaining party would be subjected to the same

action again.” Lewis v. Continental Bank Corp., 494

U.S. 472, 481 (1990). This exception does not apply

here because “there is no reason to suppose that a

subsequent case wil] not come with relative speed to

this Court.” DeFu sis v. Odegaard, 416 U.S. 312, 319

(1974). The NFL has asserted and preserved its §

301 preemption defense in the state system, and, in

the event the NFL does not prevail in the Minnesota

appellate courts, it could, obtain review by writ of

certiorari via 28 U.S.C. § 1257(a).

Even if the NFL were correct in its assertion that

there is a circuit split on the preemption issue —

and, as discussed below, the NFL is wrong on this

point — this Court can grant certiorari to resolve

conflicts between the decisions of a highest state

court and a federal court of appeals. See, e.g., Jones

v. Flowers, 647 U.S. 220 (2006) (granting certiorari to

the Arkansas Supreme Court “to resolve a conflict

among the Circuits and State Supreme Courts”);

United States v. Estate of Romani, 523 U.S. 617, 621

(1998) (granting certiorari to the Pennsylvania

Supreme Court where the decision of that court

“conflictied) with two federal Court of Appeals

decisions”); accord Braxton v. United States, 600 U.S.

344, 347 (1991) (“A principal purpose for which we

use our certiorari jurisdiction . .. is to resolve

conflicts among the United States courts of appeals

and state courts concerning the meaning of

provisions of federal law”). As a result, the NFL

could seek this Court’s review were the Minnesota

appellate courts to reverse the trial court and enter

judgment ugainst the NFL. Because the Petition

may be rendered moot after a_ substantial

expenditure of this Court’s limited resources,

certiorari is unwarranted,

i. TIE COURT OF APPEALS LACKED

JURISDICTION UNDER

28 U.S.C. § 1447(D).

The district court remanded the Williamses’

state statutory claims to the Minnesota trial court.

Under 28 U.S.C. § 1447(d), “[a]n order remanding a

case to the State court from which it was removed is

not reviewable on appeal or otherwise....” Under

the plain text of that section, the court of appeals

lacked jurisdiction, and this Court now lacks

jurisdiction, to hear petitioner's appeal from the

district court’s order.

Beginning in Thermtron, this Court has

permitted appellate review of remand orders in

certain types of cases despite the plain language of §

1447(d). See Osborn v. Haley, 549 U.S. 225 (2007);

Quackenbush v. Allstate Ins. Co., 617 U.S. 706

(1996); Things Remembered, Inc. v. Petrarca, 516

U.S. 124 (1996). Although the plain language of §

1447(d) is unambiguous, TJhermtron held that

“remand orders are appealable if they are based on

any grounds other than the mandatory ground for

remand set forth in § 1447(c)” because “subsections

together.” Osborn, 549 U.S. at 263 (Scalia, J.,

dissenting) (emphasis in original). Thus, Thermtron

opened the door to appeals of remand orders based

on grounds other than lack of subject matter

jurisdiction, which is a mandatory ground for

remand specified in § 1447(c).

Applying Thermtron, this Court recently

determined that an appeal can be taken from a

remand order in the circumstances here, where a

federal district court declines to _ exercise

supplemental jurisdiction over state law claims.

Carlsbad, 129 S. Ct. at 1862.

Respondents believe that Thermtron was

incorrectly decided, that this error infected the

Court’s decision in Carlsbad, and that the Eighth

Circuit therefore lacked jurisdiction over the district

court’s remand order. As a result, respondents

intend to request reversal of Thermtron should the

Petition in this case be granted.

Several members of the Court have suggested

that Thermtron was wrongly decided and that

Justice Rehnquist’s dissent in that case was a more

faithful application of the statute and the intent of

Congress. See Carlsbad, 129 S. Ct. at 1865 n.* (“We

do not revisit today whether Thermtron was correctly

decided. Neither the brief for petitioner nor the brief

for respondents explicitly asked the Court to do so

here ...”); id. at 1861 (“Today, as in Thermtron, the

Court holds that § 1447(d) does not mean what it

says”) (Stevens, J., concurring); id. (“Thermtron was

questionable in its day and is ripe for reconsideration

in the appropriate case”) (Scalia, J., concurring).

The remand order here comes within the plain

language of § 1447/d), but the order itself is not

predicated on the absence of subject matter

jurisdiction. Absent the Thermtron gloss, the district

court’s remand order would be unreviewable.

Thermtron conflicts with the policy judgment

Congress made about the costs and benefits of

remand appeals. “Congress’ purpose in barring

review of all remand orders has always been very

clear — to prevent the additional delay which a

removing party may achieve by seeking appellate

reconsideration of an order of remand.” Themtron,

423 U.S. at 354 (Rehnquist, J., dissenting). “While

Congress felt that making available a federal forum

in appropriate instances justifies some _ such

interruption and delay, it obviously thought it

equally important that when removal to a federal

court is not warranted the case should be returned to

the state court as expeditiously as possible.” Id.

In cases where a respondent seeks to overturn

this Court’s prior jurisprudence, the Court has noted

that “[wle would normally expect notice of an

intent...in the respondent’s opposition to a petition

for certiorari.” South Central Bell Tel. Co. v.

Alabama, 526 U.S. 160, 171 (1999). Respondents

provide such notice.

Ill. THE ISSUE ON WHICH THE NFL SEEKS

REVIEW Is NOT PROPERLY PRESENTED

The Petition also should be denied because the

question the NFL contends is presented relates only

to the players’ LCPA claims. The NFL prevailed in

state court on the LCPA claims on summary

judgment, and the players have not appealed from

that ruling. No matter how the Minnesota Court of

Appeals disposes of the Williamses’ appeal on the

hoe

DATWA claims, the LCPA ruling for the NFL will be

undisturbed.

The NFL's Petition focuses heavily on the

DATWA claims while saying very little about the

LCPA claims. But the Eighth Circuit dutifully

evaluated every “defense” proffered by the NFL with

respect to the DATWA claims. See Pet. 18-29. It

only invoked the “no defenses” statement with

respect to the LCPA claims — and the NFL has

prevailed on those claims in state court in a ruling

that has not been appealed.

Moreover, the NFL grossly exaggerates the

significance of the Eighth Circuit’s statement about

the role of defenses in § 301 analysis. In rendering

its LCPA analysis, the Eighth Circuit authored a

single footnote, upon which the NFL essentially

premises its entire challenge to the Eighth Circuit

opinion, that “the NFL’s defenses to liability under

the LCPA are not relevant to our section 301

analysis.” But it is evident from the 8% Circuit’s

analysis of both the LCPA and DATWA claims that

the Court did look to all of the NFL’s defenses on

both claims.

The NFL asserted three arguments in support of

its argument before the Eighth Circuit that DATWA

was preempted by § 301 of the LMRA. Each of the

arguments was considered and rejected by the

Kighth Circuit.

The first argument was predicated on the

language of DATWA itself which allows employers to

test employees covered by a CBA for drugs only if

that testing “meets or exceeds” DATWA's

protections. The NFL claimed that that language

required an analysis of the CBA in order to evaluate

the testing performed on the Williamses and thus

preempted the claim. The Eighth Circuit rejected

that claim: "DATWA does not state that an employee

who is a party to such a CBA cannot bring a claim

under DATWA. Rather, where there is a CBA that is

at least as protective of employees as DATWA, the

number of possible claims an employee has against

his or her employer will be affected." Pet. App. 19a.

The Eighth Circuit explained that a court does not

need to consult the CBA or NFL’s drug policy in

order to resolve the Williamses’ DATWA claim. Zd.

A court only needs to compare the procedure that the

NFL actually followed with respect to the particular

employee with DATWA’s requirements in order to

determine if an employee should prevail. Jd. Such a

claim, the Eighth Circuit found, was not preempted.

Id.

The NFL’s second argument for preemption was

that DATWA provides a cause of action only against

“employers,” and an interpretation of the CBA was

required to determine whether the NFL qualified as

an employer. The Eighth Circuit rejected that

argument, explaining that “[t]he NFL does not point

to a specific provision of either the CBA or the Policy

which must be interpreted.” Only the relationship

between the NFL and the Williamses needs to be

analyzed to determine whether an employer-

employee relationship existed. Pet. App. 22a.3

The NFL’s third preemption argument was also

considered and rejected. The NFL argued that

3 The state trial court did precisely what the Eighth

Circuit suggested and found that an employee-employer

relationship existed without reference to the CBA, by

examining the NFL’s role in the Williamses’ employment.

denying preemption and subjecting its drug policy to

divergent state regulation would render the uniform

enforcement of its drug testing policy nearly

impossible and compromise the integrity of its

business. Pet. App. 23a. The Eighth Circuit rejected

this argument, relying on this Court’s holding in

Allis-Chalmers Corp. v. Lueck, 471 U.S. 212 (1985)

that in adopting § 301 Congress did not give “the

substantive provisions of private agreements the

force of federal law, ousting any inconsistent state

regulation.” Pet. App. 24a. National companies

operate in multiple states and have no difficulty

complying with the laws of each state in which they

do business. And to suggest that the Minnesota

Vikings players would have a competitive advantage

over another team’s because their drug tests are

analyzed quicker or in a more reliable fashion is

simply fiction.

The Eighth Circuit also considered the NFL’s

defenses on the LCPA claims. As to those claims, the

NFL's first argument was based on the alleged need

to interpret the CBA to determine whether the NFL’s

ban on Bumetanide, the substance for which the

Williamses tested positive, was a bona fide

occupational requirement — an exception to liability

under the LCPA. Pet. App. 25a. The second

argument was premised on a limitation in the LCPA

which applied its restrictions only to the use of

substances “off the premises of the employer” and

“during nonworking hours.” Id. The NFL claimed

that these provisions in the LCPA required a court to

analyze the terms of the CBA to determine whether

the CBA was applicable to the Williamses’ claim

under the LCPA. The Eighth Circuit noted that the

NFL was unable to direct the court to any specific

provision of the CBA that had to be construed in

order to determine what a “bona fide” occupational

condition constituted or “off the premises of the

employer” and “during working hours” meant. Pet.

App. 28a. The Eighth Circuit went so far as to

review the entire 361-page CBA “provision-by-

provision” and found no guidance that could resolve

what “bona fide” occupational condition or what

“working hours” meant, and thus found that the

CBA did not need to be interpreted to resolve the

Williamses’ LCPA claims.

The Eighth Circuit specifically considered what

the NFL now contends that the Court ignored: the

Court reviewed the claims, considered the NFL’s

contention that the CBA was intertwined with the

claims anc needed to be interpreted in order to

resolve the action, and expressly rejected the NFL’s

contentions.

IV. THERE Is No CONFLICT IN THE CouRTS OF

APPEALS WARRANTING THIS COURT’S REVIEW

In this matter, the Eighth Circuit followed well-

established case law allowing union and non-union

employees to enjoy the statutory protections

traditionally provided by states. See Livadas v.

Bradshaw, 512 U.S. 107, 123 (1994) (“§ 301 cannot

be read broadly to pre-empt nonnegotiable rights

conferred on individual employees as a matter of

state Jaw”); Valles v. Ivy Hill Corp., 410 F.3d 1071,

1076 (9th Cir. 2005) (a CBA could not waive non-

negotiable rights regarding employee meal times

provided in a state statute and “Section 301 must not

be construed to give employers and unions the power

to displace state regulatory laws”); Graham u.

Contract Transp., Inc., 220 F.3d 910, 914 (8th Cir.

2000) (“It would be inconsistent with congressional

intent under § 301 to pre-empt state rules that

proscribe conduct, or establish rights and obligations,

independent of a labor contract”) (citing Allis-

Chalmers, 471 U.S. at 212).

The NFL contends that the courts of appeals are

divided, but that is simply not so. The only two

federal appellate decisions involving § 301 and state

drug testing laws are the decision below and the

Tenth Circuit’s decision in Karnes v. Boeing Co., 335

F.3d 1189 (10% Cir. 2003), both of which hold that §

301 does not preempt such statutes. Notably, the

NFL’s Petition singles out the Tenth Circuit as being

in “conflict” with the Eighth Circuit (see Pet. at 9),

but Karnes belies that assertion. Indeed, the Tenth

Circuit case the NFL cites — Fry v. Airline Pilots

Ass’n, 88 F.3d 831 (10th Cir. 1996) — does not even

involve § 301. It involves the Railway Act. See Fry,

88 F.3d at 833. And the NFL’s Petition does not cite

or discuss Karnes. Similarly, the Seventh Circuit

case cited by the NFL, Smith v. Colgate-Palmolive,

943 F.2d 764 (7th Cir. 1991), has nothing to do with

state drug testing laws.

The NFL’s other claims in support of the circuit

conflict are equally strained. The NFL cherry picks

stray language from the Ninth Circuit’s decision in

Sprewell v. Golden State Warriors, 266 F.3d 979 (9th

Cir. 2001), that § 301 preemption “is not mandated

simply because the defendant refers to the CBA in

mounting a defense.” Jd. at 922. The Ninth Circuit

in that case was addressing the NBA’s claim that

NBA players had waived certain state law rights by

entering into a CBA with the league, a defense the

Ninth Circuit stated could be sustained only if the

“CBA includes clear and unmistakable language

waiving the... employees’ state right.” Jd. Any fair

reading of the Ninth Circuit opinion demonstrates

that the court then in fact evaluated the CBA in the

course of concluding that no such waiver existed. See

id. (“The NBA and the Warriors have failed to cite

any language, let alone clear and unmistakable

language, in the CBA waiving Sprewell’s state law

right to assert intentional interference claims

against the NBA and the Warriors”) (quotation

omitted). Sprewell does not stake out a position on

the issue the NFL claims warrants this Court’s

review. There is no relevant conflict of law or

controversy to warrant granting the Petition.

V. THE NFL CANNOT CONTRACT FOR WHAT

1S ILLEGAL UNDER STATE LAw.

States, and in this case the State of Minnesota,

have an inherent interest in their citizens’ privacy

rights and in protecting their citizens’ health, safety

and procedural rights. Farmer v. United Bhd. of

Carpenters and Joiners of Am., Local 25, 430 U.S.

290, 303 (1977). DATWA regulates minimum rights

concerning the health, well-being, and due process of

Minnesota employees with regard to employer drug

testing. The NFL challenges Minnesota’s right to

legislate these basic employee rights, seeking to

place itself above Minnesota law and circumvent the

basic minimum requirements imposed upon

employers in the State. Yet, this Court has been

unequivocal, “§ 301 does not grant the parties to a

collective-bargaining agreement the ability to

contract for what is illegal under state law.” Allis-

Chalmers, 471 U.S. at 212.

There is a_ strong presumption against

preempting a state’s legislation in the areas of the

health and safety of its citizens. Wyeth v. Levine, No.

06-1249, 655 U.S.__, 129 S. Ct. 1187 (Mar. 4, 2009);

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724,

740 (1985) (“[Wle start with the assumption that the

historic police powers of the States were not to be

superseded by the Federal Act unless that was the

clear and manifest purpose of Congress”); Lodge 76,

Intl Assoc. of Machinists and Aerospace Workers v.

Wisconsin Employment Relations Comm’n, 427 U.S.

132, 137 (1976) (internal citations and quotations

omitted) (“[iJn short, a State may still exercise

historic powers over such traditionally local matters

as public safety and order ... for policing of such

conduct is left wholly to the states”).

In Farmer, the Court considered a claim for

intentional infliction of emotional distress brought by

a union employee who voiced dissent regarding a

union’s operation. Farmer, 430 U.S. at 303. As a

result of the employee’s dissent, the union began to

abuse and harass the employee by assigning him

only to jobs of short duration or jobs for which he was

not qualified. The union argued that federal labor

law preempted the employee’s intentional infliction

of emotional distress claim.

The Court explained in Farmer that “inflexible

application of the [preemption] doctrine is to be

avoided, especially where the State has a substantial

interest in regulation of the conduct at issue and the

State’s interest is one that does not threaten undue

interference with the federal regulatory scheme.” Jd.

at 302. The Court determined that Farmer

presented a case with “interests so deeply rooted in

local feeling and responsibility that, in the absence of

compelling congressional direction, we could not

infer that Congress had deprived the States of the

power to act.” Id. at 296-97. The Court noted that

states have a paramount interest in “protecting the

health and well-being of its citizens.” Jd. at 303.

Accordingly, “in light of the discrete concerns of the

federal scheme and the state tort law, that potential

for interference is insufficient to counterbalance the

legitimate and substantial interest of the State in

protecting its citizens.” Id. at 304.

In Metro. Life, the Massachusetts Attorney

General brought suit against an insurer to enforce a

state statute which required that specified minimum

mental) health benefits be provided to Massachusetts

residents. Metro. Life, 471 U.S. at 727. The insurer

argued, in part, that the National Labor Relations

Act preempted the state statute and deprived the

state of the ability to legislate in the area of health

benefits for employees. This Court soundly rejected

the argument and held that the Massachusetts

statute was a valid exercise of a state’s historic police

powers to protect the health and safety of its citizens

by mandating minimum protections for employees.

Id. at 756.

In two recent pronouncements, protecting states’

regulations from preemption by federal schemes, this

Court reaffirmed the presumption against

preemption. Cuomo v. Clearing House Assoc., L.L.C.,

557 U.S. __, 129 S. Ct. 2710 (2009); Wyeth, 129 S.

Ct. at 1195. The Wyeth Court recognized the

importance of not treating the issue of preemption

lightly. Wyeth, 129 S. Ct. at 1195 n.3 (“We rely on

the presumption [against preemption] because

respect for the States as independent sovereigns in

our federal system leads us to assume that Congress

does not cavalierly pre-empt state-law causes of

action”) (internal quotations omitted).

Courts within the Eighth Circuit, most recently

in this matter, have properly applied the Farmer

limitation on preemption. See, e.g., St. John v. Int'l

Ass’n of Machinists and Aerospace Workers, 139 F.3d

1214, 1219 (8th Cir. 1998) (preemption doctrine must

yield in § 801 case in order to protect state’s interest

in addressing intentional infliction of emotional

distress); Ferrell v. Cross, 5567 N.W.2d 560, 566-567

(Minn. 1997) (intentional infliction of emotional

distress claim and defamation claim can proceed).

Any argument that the NFLPA waived — or could

have waived — the Williamses’ rights by entering into

the CBA fails as a matter of law. Private parties

cannot contract away an employee’s_non-

discretionary state law rights. The Supreme Court

has held that as a general matter a union is

authorized prospectively to waive only statutory

rights related to collective activity, such as the right

to strike, and cannot waive an employee’s individual

rights provided by statute. Alexander v, Gardner-

Denver Co., 415 U.S. 36, 51 (1974); Neppl v.

Signature Flight Support Corp., 234 F.Supp.2d 1016,

1020 (D.Minn. 2002) (noting that union

representatives cannot waive an _ individual

employees’ statutory rights) (applying Gardner-

Denver).

There can be no real debate that Minnesota has a

bona fide interest in maintaining and enforcing

minimum rights and protections for its employees

from encroachments by employers on their privacy,

due process, health and safety rights. Drug testing

can be acutely intrusive and falsely labeling someone

a drug user based on inaccurate or ill-confirmed tests

can result in major and life-long harm to an

individual. Minnesota exercised its inherent right to

protect its citizens and regulate inappropriate

discharge or suspension of employees within the

State based on infringing drug testing.

VI. CONGRESS Dip Not PREEMPT OR

CREATE LAWS THAT CONFLICT WITH THE

STATES’ RIGHT TO REGULATE DRUG

TESTING.

“The purpose of Congress is the ultimate

touchstone” in a preemption analysis. Metro. Life,

471 U.S. at 736, quoting Retail Clerks ov.

Schermerhorn, 376 U.S. 96, 103 (1963). That which

is not specifically reserved for the federal

government remains in the state’s province. It is a

fundamental principle of federalism that superseding

state law and states’ rights should not be done

lightly. Metro. Life, 471 U.S. at 736.

Congress has historically been clear when it

wants to preempt an area, including areas impacting

sports organizations. For example, Congress

explicitly created exceptions for sports organizations

in the anti-trust arena. Fed. Baseball Club v. Nat'l

League, 269 U.S. 200 (1922).

In the field of drug testing, Congress has

legislated with regard to motor carriers, commercial

transportation operators and railway operators.

Federal Motor Carrier Safety Act, 49 C.F.R. Part 40,

382 (2000); Federal Railroad Administration, 49

C.F.R. Part 219 (2001); Drug-Free Workplace Act of

1988, 41 U.S.C. §701 (1988). One year after

Minnesota enacted DATWA, Congress enacted the

Drug-Free Workplace Act of 1988, 41 U.S.C. § 701,

requiring recipients of federal grants to maintain a

drug-free workplace. Official regulatory guidance

from the federal government states that the Drug-

Free Workplace Act of 1988 is designed to “coexist

with State and local law.” Government-wide

Implementation of the Drug-Free Workplace Act of

1988, 55 Fed. Reg. 21,687 (1990). Thus, the federal

government enacted legislation relating to drug

testing that was designed to supplement, not

supplant, State law.

Despite numerous congressional hearings on the

use of steroids in professional sports, Congress has

chosen not to regulate the field of sports drug

testing. As such, the area remains within the

purview of the States for regulation. The NFL seeks

to have this Court do what it could not successfully

accomplish by lobbying the Legislative branch of

government, exempt it from state drug testing laws.°®

Preemption should not be used to attain this goal.

Meyer v. Schnucks Markets, Inc., 163 F.3d 1048, 1051

(8th Cir. 1998)

———

* Acknowledging that federal law does not preempt the

right of states to regulate drug testing, United States Senator

Byron Dorgan, on September 28, 2010, at the urging of the

NFL, introduced federa) legislation specifically designed to

preempt the field of sports drug testing. The potential for

congressional action in this area undercuts the need for thie

Court's review.

5 On April 7, 2006, the Minnesota House Commerce and

Financial Institutions Committee mot to discuss the enactment

of an amendment to DATWA thut resulted in permitting

random drug testing of professional] athletes. When the floor

opened up to Represontative Goodwin, she specifically noted

that the amendment would pot affect or undermine the

minimum protections for employees set forth in DATWA

Hearing on HF 1103 Before the H. Commerce and Financia)

Institutions Comm., 2005 Leg., 84th Sess. (Minn. 2006)

(statement of Rep. Barbera Goodwin, Member, House

Commerce and Financial institutions Comm.).

VIL. THE CLAIMS IN THIS CASE ARE Not

PREEMPTED BECAUSE THE COLLECTIVE

BARGAINING AGREEMENT NEED Nor BE

EXAMINED TO DETERMINE THE CLALMS.

Section 301 of the LMRA is a jurisdictional

statute under which “[s)uits for violation of contracts

between an employer and a labor organization

representing employees in an industry affecting

commerce as defined in this chapter, or between any

such labor organizations, may be brought in any

district court of the United States having jurisdiction

of the parties.” 29 U.S.C. § 185(a). Section 301 was

expanded to include a federal common law

interpreting collective bargaining agreements,

Textile Workers Union v. Lincoln Muls, 363 U.S 448,

461 (1957). This federal common law was deemed to

preempt the use of state contract law to interpret

collective bargaining agreements and enforcement.

Local 174, Teamsters of Am. V. Lucas Flour Co., 369

U.S. 95, 103-04 (1962).

Allis-Chalmers expanded the application of § 301

preemption beyond cases specifically alleging

contract violations to those whose resolution “is

substantially dependent upon analysis of the terms

of an agreement made between the parties in a labor

contract.” Allis-Chalmers, 471 U.S. at 220. This

Court reiterated that test for preemption in

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987),

Acknowledging that “the pre-emptive force of § 301 is

60 powerful as to displace entirely any state cause of

action for violation of contracts between an employer

and a labor organization,” the Caterpillar Court

explained that § 301 preempts only “claims founded

directly on rights created by collective-bargaining

- 7

agreements, and also claims ‘substantially

dependent on analysis of a collective-bargaining

agreement.” Caterpillar, 482 US. at 394

(1987)(quoting Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 463 U.S. 1, 23

(1983)(internal quotation marks omitted).

Caterpillar specifically rejected the contention that

“all employment-related matters involving unionized

employees be resolved through collective bargaining

and thus be governed by a federal common law

created by § 301.” Td. at 396 n. 10 (internal

quotation marks omitted), explaining that employee

claims unrelated to the terms of a CBA were not

preempted.

In clarifying when claims are preempted under §

301, the Court in Lingle v. Norge Division of Magic

Chef, Inc., 486 U.S. 399 (1988), held that states can

provide substantive rights to workers irrespective of

the existence of a CBA. Id. at 413. A state court suit

seeking to vindicate these state law rights is

preempted only if it “requires the interpretation of a

collective-bargaining agreement.” Id.

Lingle considered whether § 301 preempted an

Illinois statute permitting an employee to file a claim

for retaliatory discharge due to a_ collective

bargaining provision which provided the employee

with a contractual remedy for any termination

without just cause. Jd. The employee filed a claim

with Illinois’ Worker's Compensation Commission

alleging a work related injury. /d. Thereafter, her

employer terminat:d her for filing a false worker's

compensation claim. Jd. The employee went

through the procedures outlined in the collective

bargaining agreement and then sued, alleging that

her employer had violated the Illinois statute

banning retaliatory terminations. Id.

The Court analyzed the elements of the Illinois

statute and found that “{nJeither of the elements

requires a court to interpret any term of a collective-

bargaining agreement.” Jd. at 407. “Thus, the

‘State-law remedy in this case is ‘independent’ of the

collective-bargaining agreement...for § 301 pre-

emption purposes: resolution of the state-law claim

does not require construing the collective-bargaining

agreement.” Id. Therefore, § 301 did not preempt

the Illinois state claims.

In Clark v. Kellogg Co., 205 F.3d 1079 (8th Cir.

2000), seasonal employees brought an action against

their employer alleging breach of an oral contract to

hire them permanently, promissory’ estoppel,

fraudulent misrepresentation, and negligent

misrepresentation. The employer claimed that § 301

preempted the breach of contract claim because the

employer had an existing CBA with a union in which

the employees were members.

Relying on Lingle, the Eighth Circuit in Clark,

noted that “[w]hile Section 301 preempts claims

founded directly on rights created by a CBA and

claims substantially dependent on analysis of a CBA,

not every dispute concerning employment or

tangentially involving a provision of a CBA is

preempted by Section 301.” Clark, 205 F.3d at 1082.

Because the Clark plaintiffs were not seeking to

enforce any provision of the CBA, there was no

preemption because the “state law claims neither

originate in, nor refer in any substantial way to, the

rights and duties established in the CBA.” Id.

The Eighth Circuit has made a concerted effort

to be “faithful to Supreme Court precedent” by

“requir[ing] that a claim be grounded on the rights

established by a CBA, or substantially dependent on

an analysis of a CBA, before it may be found to be

preempted.” Graham, 220 F.3d at 914 (no § 301

preemption where plaintiff claimed employer

defamed him by terminating him as a result of a

negative drug test and finding that the “defamation

claim does not rely on any rights conferred by the

CBA,” but instead on “a right created by state law

(namely, to be free from false and harmful

statements made about him to others), which is a

right that is independent of any CBA”).

The Williamses’ case needs no reference to or

analysis of the CBA and is independent of it. The

only relevant analysis involves an application of the

NFL’s actions to the confines of DATWA and a

determination of whether those actions violated the

Statute. The NFL’s defense that it was merely

complying with its CBA cannot insulate it from

liability. Section 301 preemption is not applicable

simply because a defendant without substance refers

to the CBA in defending itself.

In Humphrey v. Sequentia, Inc., 58 F.8d 1238

(8th Cir. 1995), an employee brought an action to

restrain his employer from suspending him pending

an investigation into the employee’s conduct. ZId. at

1239. The employer argued that § 301 preempted

the employee’s claims because the collective

bargaining agreement specifically authorized the

employee’s claims. Jd. The Eighth Circuit reversed.

Id. Relying on Supreme Court precedent, the Court

explained that “a defendant cannot, merely by

injecting a federal question into an action that

asserts what is plainly a state-law claim, transform

the action into one arising under federal law” and

“(t]he fact that defendant argues...that there was

Sust cause’ under the terms of the CBA for the

discipline plaintiff received, does not create a basis

for § 301 preemption.” Humphrey, 58 F.3d at 1244

(quoting Caterpillar Inc., 482 U.S. at 399); see also,

Cramer v. Consol. Freightways, Inc., 255 F.3d 683,

692 (9th Cir. 2001) (“The plaintiffs claim is the

touchstone for this analysis; the need to interpret the

CBA must inhere in the nature of the plaintiff's

claim. If the claim is plainly based on state law, §

301 preemption is not mandated simply because the

defendant refers to the CBA in mounting a defense”);

Umphrey v. Fina Oil & Chemical Co., 921 F.Supp.

434, 4387 (E.D.Tex. 1996) (“although the employers

may defend against claims by arguing that their

actions were authorized under the CBA and its rules,

this fact does not transform the claim into one which

requires an interpretation of the CBA”); Brown uv.

Holiday Stationstores, Inc., 723 F. Supp. 396, 403 (D.

Minn. 1989) (employer’s claim that its conduct is

authorized by a CBA is insufficient to warrant

preemption). In Humprey, the claim was not

preempted since the Court’s decision was based upon

a review of the facts and the statute, and no review

of the CBA was involved — as in the Wiiliamses’ case.

The decision in Karnes is also instructive.

Karnes, 335 F.3d at 1189. In Karnes, Boeing

terminated the plaintiff, pursuant to the terms of a

collective bargaining agreement and the anti-drug

policy incorporated in the CBA, after the plaintiff

tested positive for marijuana. The plaintiff argued

that the employer’s conduct violated Oklahoma's

Drug Testing Act, 40, § 562(A), prohibiting

termination based on a positive test result unless a

second confirmatory test were performed. As a

threshold matter, the Tenth Circuit determined that

the plaintiffs claim was not preempted for § 301

purposes because “[iJn order to establish a violation

of this section, [the employee] must show that Boeing

(1) discharged him based on his drug test, and (2)

failed to confirm the result through a second test.

Neither inquiry requires a court to interpret, or even

refer to, the terms of a CBA.” Zd. at 1193. “Thus,

[Plaintiffs] Drug Testing Act claims are clearly

independent of the CBA and are not subject to § 301

preemption.” Jd. at 1194. The Tenth Circuit further

held that the mere fact that the discharge may have

been consistent with the anti-drug policy contained

in the CBA “is irrelevant because ‘§$ 301 does not

grant the parties to a [CBA) the ability to contract

for what is illegal under state Jaw.” Jd. at 1994

(citing Allis-Chalmers, 471 U.S. at 212); see also

Thompson v. Hibbing Taconite Holding Co., No. 08-

868 (JRT/RLE) 2008 WL 4737442, *4-5 (D. Minn.

Oct. 24, 2008) (“[w]hether the employer violated its

own testing policies is a separate question from

whether it satisfied the requirements set forth in

DATWA...” and holding that the “[aJllegations that

[the employer] violated such non-negotiable state law

rights doles] not require an interpretation of the

CBA, and would not be preempted under the LMRA”)

(emphasis added).

Like in Karnes, because resolution of the

Williamses’ DATWA claims does not require an

interpretation of the CBA, the NFL’s preemption

claim fails.

CONCLUSION

The Petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

Steven E. Rau Peter R. Ginsberg

FLYNN GASKINS Counsel of Record

BENNETT, LLP Christina N. Burgos

338 South 7th Street, GINSBERG & BURGOS PLLC

Suite 2900 12 East 49% Street, 30th Floor

Minneapolis, MN 55402 New York, New York 10017

(612) 388-9500 (646) 374-0029

pginsberg@ginsbergburgos.com

Counsel for Respondents

Kevin Williams and Pat Williams

September 29, 2010

APPENDIX

TABLE OF CONTENTS

Fourth Judicial District Court of Minnesota

Findings of Fact, Conclusions of Law, and

Order for Judgment (May 6, 2010)...........:ceeeeesrenveneenes la

Fourth Judicial District Court of Minnesota

Order and Memorandum of Law Granting Plaintiffs’

Motion to Stay Dissolution of Temporary Injunction

Pending Appeal (May 21, 2010)........sssrccrsrscecscesersese 38a

Minnesota Court of Appeals

The National Football League’s Motion to

Dismiss the Appeal! as Moot (Sept. 17, 2010)............008 50a

Court File No. 27-CV-08-29778

Judge Gary Larson

STATE OF MINNESOTA

COUNTY OF HENNEPIN

DISTRICT COURT

FOURTH JUDICIAL DISTRICT

Kevin Williams, Pat Williams,

Plaintiffs,

¥.

National Football League,

Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

ORDER FOR JUDGMENT

The above-entitled matter came on for a court trial

before the Honorable Gary Larson, Judge of Hennepin

County District Court, on March 8, 2010 through March

12,2010. Kevin Williams and Pat Williams appeared

personally and through their attorneys, Peter Ginsberg, Esq.,

Steven Rau, Esq., and Christina Burgos, Esq. The National

Football League appeared by its attorneys, Joseph Schmitt,

Esq., Daniel Nash, Esq., and Marla Axelrod, Esq.

The parties agreed to dismiss John Lombardo, M.D.,

and Brian Finkle, M.D., as Defendants. At the

commencement of trial, Adolpho Birch was also dismissed

from the action. Based upon on the files, records, testimony,

and proceedings herein, the Court makes the following

findings:

10.

FINDINGS OF FACT

That the National Football League (“NFL”) is an

unincorporated nonprofit association comprised of 32

member clubs, including the Minnesota Vikings

(Vikings ").

That the National Football League Management

Council (“NFLMC”) is the exclusive multi-employer

bargaining representative for the NFL member clubs,

including the Vikings.

That each member club is separately owned. Upon

purchasing an NFL team, each owner agrees to be

bound by the NFL Constitution and Bylaws and other

agreed upon internal rules.

That Kevin Williams (“Kevin”) plays football for the

Vikings and has been in the NFL for seven years.

That Kevin’s contract with the Vikings contains a

weight bonus clause.

That Kevin is a starting player for the Vikings and

has been selected to play in the Pro Bowl five times.

That Kevin has never taken steroids, performance

enhancing drugs, or attempted to mask any banned

substance.

That in 2006, Kevin had surgery on his left knee for a

torn patella. Kevin found that maintaining a lighter

weight helped him feel better.

That, shortly efter his operation, in the start of the

2007 season, Kevin took Star Caps.

That a team mate initially told Kevin about and gave

him Star Caps. Kevin subsequently purchased Star

Caps from GNC stores or over the internet.

12.

20.

21.

That Kevin took Star Caps for the perceived health

benefits, to meet his contractual weight requirements,

and to avoid his coach's reprimands for not mecting

the weight requirements prescribed in his contract.

That Kevin never saw any notice or warnings about

Balanced Health Products or Star Caps. Kevin would

not have taken Star Caps if he had known that they

contained the banned substance Bumetanide.

That Pat Williams ("Pat") plays football for the

Vikings and has been in the NFL. for thirteen years.

That Pat's contract with the Vikings contains a

weight bonus clause.

That Pat is a starting player for the Vikings and has

been selected to play in the Pro Bowl a number of

times.

That Pat has never taken steroids, performance

enhancing drugs, or attempted to mask any banned

substance.

That Pat suffers from high blood pressure and gout,

and takes medications for these conditions.

That, due to these health conditions, doctors advised

Pat to maintain a specified weight.

That Pat first took Star Caps while playing for the

Buffalo Bills to help alleviate the retention of extra

fluid in his joints.

That Pat first heard about Star Caps from another

player on the Buffalo Bills. Pat spoke with his trainer

about taking Star Caps, and the trainer told him that it

would be okay. He purchased Star Caps from GNC

stores or over the internet.

That Pat never received any notice or warnings about

Balanced Health Products or Star Caps. No one ever

22.

24.

25.

26.

27.

advised Pat not to take Star Caps. Pat would not have

taken Star Caps if he had known that they contained

the banned substance Bumetanide.

That Pat reviewed the contents of the Star Caps

bottle, which states that it is an all natural supplement

and did not list any prohibitive substance. He also

tried calling the players’ hotline, but never received

an answer.

That Kevin and Pat are both members of the NFL

Players Association (“NFLPA”), the exclusive

bargaining representative for all! NFL players. Kevin

and Pat have been NFLPA members since they began

playing in the NFL.

That in 2006, the NFLPA and the NFLMC negotiated

and entered into a comprchensive collective

bargaining agreement (“CBA") that governs the

terms and conditions of players’ employment with

members clubs and establishes procedures for

discipline and dispute resolution.

That the CBA states that players are employed by a

member club of the NFL.

That member clubs have agreed to resoluuons, which

govern their relationships with each other. The clubs

agreed to share revenue from certain sources, such as

television contracts and national marketing

agreements.

That the national contracts are negotiated by a

committee of owners, who must be approved by the

member clubs. Revenue from these deals is

administered by the NFL. on behalf of the member

clubs, and maintained in an agency account.

28.

29,

30.

32.

33.

34.

36.

That the revenue sharing provides, among other

things, that clubs with higher revenues will share with

clubs with lower revenues.

That the Vikings have sole authority to hire, firc,

negotiate, and sign contracts with players, cut players,

and provide special bonuses for players.

That the NFL reviews and approves every NFL

contract for Vikings players and team personnel.

That Kevin and Pat entered into NFL player contracts

which set forth the terms of their employment. The

NFL, standard form contract is collectively bargained

and is included as Appendix C to the CBA.

That the contracts for Kevin and Pat are on the

standard NFL mandated forms and were approved by

the NFL.

That players may only use agents who are approved

by and registered with the NFL to negotiate their

contracts.

That Kevin and Pat’s contracts state that they are

employed by the Vikings as a “skilled footba!!

player,” accept such employment. and agree to give

their best efforts and loyalty to the club.

That the Vikings Vice President of Footbal!

Operations, Rob Brzezinski (‘Brzezinski’)

negotiated specific contract terms with Kevin and his

agent, Tom Condon (“Condon”).

That, as part of the employment contract, the Vikings

ugreed to pay Kevin a yearly salary for his

performance, services. and other promises. The

contract also provides for individually negotiated

bonuses paid by the Vikings to Kevin, and the

payment terms of these bonuses.

42,

43.

That these bonus provisions are not part of the

standard NFL contract. and must be approved by the

NIL and the NFLPA.

That Kevin's contract includes a weight provision,

negotiated by Brzezinski, under which Kevin could

eam up to $400,000 in 2008, if he met certain

required weight goals. Under this provision, Kevin

specifically agreed not to engage in any last minute

weight-reducing tactics such as excessive use of a

steam room, use of diuretics, fasting. et cetera

That Brzezinski negotiated a standard NFL contract

with Pat and his agent. Angelo Wright (“Wright”)

As part of this employment contract, the Vikings

agreed to pay Pat a yearly salary for his performance,

services, and other promises,

That Pat's contract includes a weight provision,

negotiated by Brzezinski, under which Pat could earn

up to $400,000 in 2008. if he met certain required

weight goals. Under this provision, Pat specifically

agreed not to engage in any last minute weight-

reducing tactics such as excessive use of a steam

room, use of diuretics, fasting, et cetera.

That many of the rules and regulations governing the

NFL and the teams are collectively bargained for,

including, post-season pay, retirement plans, collepe

draft rules.

That, pursuant to the CBA, Kevin and Pat are entitled

to receive vanous retirement benefits, including

pensions. The retirement plans under the CBA are

established and administered pursuant to the Taft-

Hartley Act.

That the CBA establishes the amount of a player's

pension, which is administered through the auspice of

a separate pension fund. The specific amount of

45.

46.

47.

48.

49.

retirement benefits payable to Kevin and Pat are

controlled by the plan,

That the Vikings financial obligations for such

benefits are controlled by the CBA. The benefits are

the financial responsibility of the Vikings, not the

NFL. The Vikings are required to make contributions

to the plan for the benefit of Kevin and Pat during

their employment. The Vikings’ contributions to the

retirement plan are paid out of the Vikings’ share of

the agency account maintained by the NFL.

That Pat and Kevin are paid directly by the Vikings

with funds that the Vikings receive from many

sources, including league-wide revenue sharing,

supplemental revenue sharing, fees which the NFL

receives from media and endorsement contracts, and

other sources.

That the NFL negotiates and enters into al! media and

endorsement contracts on behalf of the teams. Fees

from these contracts are paid into the revenue sharing

program.

That the NFL maintains and manages an agency

account where the shared funds are deposited. The

NFL then distributes these from the agency account to

the teams pursuant to a formula created by the NFL.

That the Vikings sell merchandise through retai]

outlets, the internet, and other arenas. The Vikings

keep part of these proceeds and then tum a certain

portion over to the NFL into the revenue sharing

account. A portion of ticket sales for all home games

are also turned over to the NFL for revenue sharing.

That the NFL also manages a separate supplemental

revenue sharing program, where money is collected

from higher revenue generating teams and distributed

50.

52.

55.

to lower revenue generating teams. Teams may not

opt out of this process.

That the Vikings, like all teams in the NFL, are

required to participate in a revenue sharing program.

The NFL Commissioner imposes discipline if a team

fails to pool funds appropriately.

That without revenue sharing, the Vikings could not

pay all of its salaries and business expenses.

That the NFL is a tax exempt not-for-profit

corporation. Accordingly, the NFL loans funds to

teams at a lower rate than a for-profit entity could

normally borrow funds. Some teams are able to

borrow funds for as low as 1%.

That the NFL avoids the unrelated business tax due to

its tax structure.

That the NFL controls many areas of operation for the

Vikings through the NFL owner’s manual which

dictates rules governing who can own and operate

NFL teams and where they can operate, the operation

of teams, salaries, salary caps, television, public

relations, playing rules, publicity, revenue sharing,

and discipline.

That the NFL commissioner may discipline

individual players for violations of NFL rules,

including imposing suspensions and/or fines.

That the NFL must approve a company before a

player may contract with it for endorsement purposes.

That players can only wear NFL approved clothing on

game days.

That the NFL also maintains a credit facility from

which teams may borrow money.

60.

61.

62.

63.

65.

66.

That the NFL enforces a debt ceiling for all teams of

$150 million. The amount each team has borrowed is

known only to the NFL.

That the NFL determines a player’s performance-

based pay by looking at the player's salary, draft

status, and playing time.

That the NFL controls, in immense detail, what

players may wear during games including sock and

chin strap color, the type of tape that may be used on

shoes, how jerseys are tucked in, and even how a

player may use a towel

That under the NFL's conduct policy, Vikings players

are subject to discipline by the Commissioner if they

violate an NFL policy.

That the CBA specifically provides the amount that

players receive for playing in the Pro Bowl. Kevin

and Pat have been selected to the Pro Bow! several

times. The Vikings pay its Pro Bowl players with

money given to them by the NFL.

That the Vikings have qualified for the playoffs

during Kevin and Pat's tenure with them. The CBA

provides the terms of the players’ post-season pay.

The NFL gives the Vikings money to pay its players

for post-season play.

That the CBA establishes a policy on Anabolic

Steroids and Related Substances (the “Policy”.

That the Policy is designed to eliminate the use of

performance-enhancing drugs in the NFL. The Policy

articulates three goals: (1) protecting the fairness and

integrity of professional football; (2) protecting

players’ health and safety, and; (3) insuring that NFL

players do not send the wrong message to young fans,

67,

68.

69.

70.

71.

73.

[Va

whom may be tempted to use performance-cnhancing

drugs.

That the Policy, although negotiated by the NFLPA

and NFLMC, is administered by the NFL through an

Independent Administrator and Consulting

Toxicologist.

That Dr. John Lombardo (“Lombardo”) is the

appointed Independent Administrator and Dr. Bryan

Finkle (“Finkle”) is the Consulting Toxicologist.

That Adolpho Birch (“Birch”) is the NFL's Vice

President of Law and Labor Policy and is the person

at the NFL with the responsibility over the Policy and

the liaison with the NFLPA.

That Stacy Robinson (“Robinson”) is the NFLPA

Director of Player Development, and he is Birch’s

counterpart for the NFLPA with responsibility over

the Policy.

That, at all times relevant to this lawsuit, Finkle

served as the Policy’s Consulting Toxicologist and

was appointed jointly by the NFLPA and the

NFLMC. Finkle also consults for the U.S. Anti-

Doping Agency, the World Anti-Doping Agency, the

National Olympic Committee, the British Olympic

Committee, the National Basketbal! Association, and

the Nationa! Hockey League.

That, although Lombardo serves as the Policy’s

“Independent Administrator,” Lombardo reports to

and takes directives from Birch.

That, although the Policy provides that Lombardo has

sole discretion to certify ea positive test, which

includes determining whether to grant therapeutic use

exemptions and verify the chain-of-custody, this is

not, in fact, how the Policy works.

74.

75.

76.

77.

78.

80.

8}.

82,

lla

That Birch specifically directed Lombardo how and

when to report certain, specific types of positive tests.

That the Policy provides that the NFL, and

specifically Birch, bear responsibility for imposing

discipline in accordance with the Policy. The Policy

also provides that the testing costs and compensation

for Lombardo and Finkle are paid by the NFL.

That Kevin and Pat received a copy of the Policy each

year at training camp. Both Kevin and Pat read,

understood, and were familiar with the policy and the

list of substances prohibited by the Policy.

That the Policy forbids players from having

prohibited substances in their bodics. The prohibited

substances are listed in Appendix A to the Policy.

The list is negotiated between the NFL and the

NFLPA and includes steroids and potential blocking

and masking agents, such as diuretics that hinder the

detection of banned substances.

That Bumetanide is one of the banned substances on

the prohibited list. Bumetanide was included in the

Policy’s prohibited substances list at all times

relevant to this lawsuit.

That the Policy provides that the unknowing use of a

prohibited substance is not a defense to such use.

That the Policy also states that the use of a dietary

supplement that contains a prohibited substance is not

a viable excuse or a defense to the use thereof.

That the NFL has sent several letters to the players

warning them not to use any dietary supplements

because they often contain prohibited substances that

are not listed on the packaging.

That the NFL also sent alerts for specific brands of

products that should not be used.

83.

84.

86.

87.

88.

89.

90.

91.

12a

That the NFL never sent an alert about Star Caps.

That the Policy provides that whoever tests positive

for a prohibited substance is subject to a first-time

minimum four-game suspension without pay, to be

administered by the NFL (i.e. Birch).

That the Policy provides a detailed procedure for

collecting specimens, protecting the chain-of-custody,

reviewing test results, and maintaining

confidentiality.

That the NFL was not aware of and did not take into

consideration the Jaws of the State of Minnesota, and

specifically the Drug and Alcohol Testing in the

Workplace Act ("DATWA"), which governs drug

test collection for Minnesota employees.

That the Policy provides that a specimen collector

must observe the player furnish a urine sample, and

then split the sample into “A” and “B” bottles and

forward the samples to the appropriate lab for testing.

That the NFL uses two laboratories to conduct player

drug tests, the UCLA Olympic Analytical Laboratory

(“UCLA Lab”) and the Sports Medicine Research

and Testing Laboratory in Utah (“Utah Lab’),

That the UCLA Lab and the Utah Lab are certified

and accredited by the World Anti-Doping Agency

("WADA") and the Intemational Organization for

Standardization (“IOS”).

That the UCLA Lab does not conform to the specific

requirements of DATWA, but in all respects meets or

exceeds the requirements for testing by laboratories

as set out in DATWA.

That the Policy states that Lombardo may choose

which laboratories to use.

92.

93.

94.

95.

96.

98.

100.

13a

That Lombardo testified that the UCLA lab is

overworked and cannot possibly conduct player drug

tests within three days, as required by DATWA.

That the NFL has an ownership interest in the Utah

Lab and has a financial arrangement with the UCLA

lab.

That the Policy requires that all NFL players be

subject to annual drug tests as part of their pre-season

physical examination during training camp.

That Kevin and Pat’s urine samples were collected at

the start of training camp, on July 26, 2008, pursuant

to the Policy's annual pre-season testing provision, as

noted in the NFL manual.

That Kevin and Pat observed the collectors split their

specimens into "A” and “B” bottles and signed the

chain-of-custody forms.

That Kevin and Pat’s samples were sent to the UCLA

Lab, which received them on July 28, 2008.

That the UCLA Lab completed an initial screening

test on Kevin's “A” bottle on August !, 2008. The

lab then performed a confirmatory test on Kevin's

“A” bottle sample beginning on August 6, 2008, and

completing it on August 12, 2008. The results of the

confirmatory test were certified on August 12 or 13,

2008.

That on August 13, 2008, the lab notified Lombardo

of Kevin’s initial positive screening and positive

confirmatory test results.

That Lombardo then reviewed the chain-of-custody

forms and scheduled a testing date for Kevin's “B”

bottle sample.

101,

102.

103.

104.

105.

106.

107,

108.

109.

110.

14a

That on August 27, 2008, Lombardo sent Kevin

written notification of his positive test result. The

letter was sent in an envelope marked ‘confidential. "

The letter was addressed to the Vikings and placed in

Kevin’s open locker.

That Lombardo’s letter advised Kevin that his “B”

bottle test would occur on September 9, 2008, and

that he was entitled to have a qualified toxicologist

observe the “B” bottle test.

That after receiving Lombardo’s letter, Kevin told his

wife; his agent Condon, and his coach, Brad

Childress, about his positive test results.

That Condon informed his colleague Tracy Lartigue

(‘““Lartigue ") about Kevin’s positive sample.

That on September 2, 2008, Lartigue sent Birch a

letter appealing Kevin's positive test result. Lartigue

copied Robinson in his letter.

That Kevin arranged for Dennis Crouch (“Crouch”),

an independent toxicologist, to observe his "B" bottle

test. Both Crouch and Finkle observed the “B” bottle

test on September 9, 2008.

That the confirmatory "B" bottle test was positive for

the presence of Bumetanide.

That Finkle reviewed the “B” test. On September 17,

2008, Finkle notified Lombardo, via e-mail, of his

certification of Kevin’s positive test result.

That Lombardo notified Lartigue, by phone, on

September 22, 2008, that Kevin’s final test was

positive for Bumetanide.

That on September 22, 2008, Lombardo notified

Birch, by mail, of Kevin's positive test result. This

11).

112.

113.

144.

115.

116,

117.

118.

119.

lSa

was the NFL’s first notice of Kevin’s positive test

result.

That Lombardo’s September 22, 2008 letter was

received by the NFL on September 24, 2008.

That, on September 26, 2008, Birch sent a letter by

express mail, on behalf of the NFL, to Kevin and the

Vikings notifying them that Kevin would be

suspended for four games because he tested positive

for a banned substance.

That, with regard to Kevin's drug test, the NFL did

not comply with DATWA’S three-day notice

requirement.

That Kevin testified at trial that he was not harmed

because of Lombardo's or the NFL’s delay in

informing him of his positive test result.

That Kevin acknowledged that Bumetanide was in his

system and does not challenge that he tested positive

for Bumetanide.

That the UCLA Lab completed the initial testing

screening on Pat’s “A” bottle sample on August I,

2008. The lab performed a confirmatory test on Pat's

“A” bottle sample on August 6, 2008, and completed

the analysis on August 12, 2008.

That the lab certified Pat's result as positive for the

presence of Bumetanide. On August 13, 2008, the

lab notified Lombardo of Pat’ s positive test result.

That Lombardo requested the chain-of-custody

documents for Pat's test. Lombardo conducted an

initial review of al] documents, and scheduled a date

to conduct testing on Pat’s “B” bottle sample.

That, on August 27, 2008, Lombardo sent Pat written

notification of his positive results. The letter was in

120.

12).

122.

123.

124,

125.

126.

127.

128.

129.

10a

an envelope marked “confidential” and was sent to

the Vikings and placed in Pat’s open locker.

That Lombardo scheduled Pat’s “B” bottle test for

September 9, 2008.

That shortly after receiving Lombardo’s letter, Pat

told his wife; his agent Wright; and his coach, Brad

Childress, about his positive test result.

That Pat chose not to have an_ independent

toxicologist observe his “B” Sample test.

That Pat’s “B” bottle sample was certified as positive

on September 10, 2008. On September 11, 2008,

Lombardo was notified that Pat’s “B” bottle showed

the presence of Bumetanide.

That Finkle reviewed the documents and certificd

them to Lombardo on September 23, 2008.

That Lombardo reviewed the documents and certified

the positive results to Birch on September 29, 2008.

This was the first notice that the NFL received of

Pat's positive test results,

That Lombardo’s note was received by the NFL on

October 1. 2008.

That on October 3, 2008, Birch sent the letter to Pat

and to the Vikings notifying them that Pat would be

suspended for four games because he tested positive

for a banned substance.

That, with regard to Pat’s drug test, the NFL did not

comply with DATWA’s _ three-day notice

requirement.

That Pat testified that he was not harmed by either

Lombardo’s or the NFL’s delay in informing him of

his positive test results.

130.

131.

132.

133.

134.

135,

136.

137.

138.

17a

That Pat acknowledged that Bumetanide was in his

system. Pat does not challenge the results showing

that he tested positive for Bumetanide.

That on October 24, 2008, journalist Josina Anderson

reported that a “highly-placed NFL source” released

information that several NFL players tested positive

for Bumetanide.

That on October 24 or 25, 2008, Jay Glazer, a news

reporter, reported that Kevin and Pat tested positive

for Bumetanide.

That Commissioner Roger Goodell was apparently

not interested in discovering the source of the leak

and did not request an investigation, on behalf of the

NFL, to determine if anyone at the NFL was

responsible for the leak.

That Birch testified that, in his opinion, reference by

reporters to the NFL or League includes the NFL

Football League, the NFLPA, players, agents,

coaches, trainers, and team doctors. Birch defines the

NFL as including all of these groups and individuals.

That Birch conducted a very brief investigation on his

own concerning the leak. Birch concluded that no

one from the NFL was involved in the leak., contrary

to the newspaper reporter's assertion.

That Birch's single-handed investigation is highly

suspect,

That Birch reached a totally unsupportable and

unfounded conclusion, alleging that a certain

individual outside of the NFL was the actual source

of the leak.

That it is impossible for the Court to conclude by a

preponderance of the evidence that any particular

139.

140.

14].

142.

143,

145.

146.

147.

148.

18a

individual was the source of the leak regarding

Plaintiffs’ positive test results.

That the Court finds that Kevin and Pat’s attorney

was not the source of the leak.

That Birch’s contradictory testimony in this regard is

not credible,

That in 2005 and 2006, Lombardo and Finkle became

aware that a cluster of players’ urine samples were

testing positive for Bumetanide.

That Bumetanide is a very potent and dangerous drug

and can cause serious side effects, including death, if

inadvertently taken and not under the supervisions of

a physician.

That Finkle became concemed because he had neither

seen this drug nor its level of potency in previous

tests,

That Finkle and Lombardo discussed their concerns

regarding Bumetanide. After interviewing players

who had taken Star Caps and subsequently tested

positive, it became clear to them that Star Caps was

creating the positive test results.

That because of the clear correlation between

Bumetanide and Star Caps, Finkle and Lombardo

requested that the Utah Lab performed a study on Star

Caps. The study confirmed that Star Caps contained

Bumetanide.

That it was obvious to Finkle that if a player took Star

Caps, he would test positive for Bumetanide.

That Lombardo advised Birch that Star Caps

contained the “secret” banned substance.

That Birch indicated that he would inform the FDA or

another appropriate agency of this finding.

149

150.

151.

152.

155

156.

19a

That Birch made a conscious decision not to inform

the FDA or any other regulatory agency that Star

Caps contained Bumetanide.

That Birch now knew that Star Caps contained

Bumetanide and that NFL players were inadvertently

ingesting Bumetanide.

That Birch made an affirmative decision to not

disclose to the teams, the NFLPA, or the players, that

Star Caps contained the banned substance

Bumetanide and should not be used.

That prior to 2007, a number of players tested

positive for Bumetanide and were not referred for

discipline.

That Birch knew full weil that players would continue

taking Star Caps and testing positive for Bumetanide

That Birch, thereafter, directed Lombardo to report

any future players for discipline who tested positive

for Bumetanide, even though their use thereof was

inadvertent. Birch was playing « game of “gotcha.”

That the NFL recently filed pleadings in American

Needle v. Nat'l Football League, No. 08-66), 2009

WL 3865438 (2009), and argued before the United

States Supreme Court that, contrary to its assertion in

this case, the NFL should be treated as a single entity

with the various member teams for anti-trust

purposes,

That on December 3, 2008, Kevin and Pat filed suit

against the NFL; the Policy's Independent

Administrator, Lombardo; the Consulting

Toxicologist, Finkle; and the NFL’s ice President of

Law and Labor Policy, Birch. The complaint alleged

a variety of common law torts based on Defendants’

purported breach of their fiduciary duty to wam

159

160

20a

players that Ster Caps contained Bumetanide.

Defendants removed the action to federal] court on

December 4, 2008.

That after this suit was removed to federal court, the

Suit was consolidated with a mattcr captioned Nat'l

Football League Players Ass'n v. Nat'l Football

League and Nat'l Football League Management

Council, No. 08-CV -6254, 2009 WL 1457007 (D

Minn. May 22, 2009) (the “NFLPA Suit")

That the NFLPA Suit alleged claims on behalf of five

NFL players, including Kevin and Pat, and sought to

overtum the suspensions of those players on the

grounds that their suspensions were the product of

arbitrator bias, a public policy violation, and were

inconsistent with the CBA. In support of the public

policy claim, the NFLPA argued that the NFL failed

to warn the players that Star Caps contained

Bumetanide, in violation of state law fiduciary

Obligations. In support of its claim that the awards

were inconsistent with the CBA, the NFLPA argued

that the NFL had iwnposed harsher discipline on

players who tested positive for diuretics in 2008 than

it had imposed on players who tested positive for

diuretics in 2006,

That Kevin and Pat filed a first amended complaint in

federal court on January 2, 2009, which added counts

under DATWA, Minn. Stat. § 181.950 ef seqg., and the

Lawful Consumable Products Act (“LCPA"), Minn

Stat. § 181.938.

That, on April 14, 2009, the parties in this case

Stipulated to dismiss Finkle as a party. On March &,

2010, Plaintiffs dismissed, with prejudice, individual

Defendants Birch and Lombardo

163

164

166.

2la

That between January and Apnil 2009, the parties

engaged in expedited discovery followed by an

accelerated summary judgment briefing schedule.

That following discovery, Defendants, Plaintiffs; and

the NFLPA filed cross-motions for summary

judgment in federal court.

That on May 22, 2009, the federal court denied Kevin

and Pat's Motion for Summary Judgment and granted

Defendants’ summary judgment motion in part,

holding that Plaintiffs’ common law claims were

preempted by section 30] of the Labor and

Management Relations Act. Nat'l Football League

Players Ass'n v. Nat'l Football League, 654, F. Supp

2d 960, 967 (D. Minn. 2009). The Court held,

however, that Plaintiffs’ claims under DATWA and

the LCPA were not preempted. and remanded those

claims to this Court.

That the United States District Court rejected all of

the common law claims asserted by Kevin and Pat,

holding that those claims were preempted by Section

301 of the Labor Management Relations Act. Nar /

Football League Players Ass'n, 654 F. Supp. 2d at

967.

That the Court granted in full Defendants’ Motion for

Summary Judgment filed in the NFLPA Suit.

That in addressing the NFLPA’‘s claims under Section

301 of the LMRA on their ments, the Court first

reviewed the NFLPA‘s claim that the arbitration

award upholding Plaintiffs‘ suspensions did not

“draw its essence from the CBA." The Court

rejected the NFLPA’s claim that the suspensions were

inconsistent with the CBA because several play «s in

2006 and 2007 had not been suspended for a positive

167.

168

169,

22a

diuretic test. Nat'l Football League Players Assn.

654 F. Supp. 2d at 968.

That the Court addressed and dismissed the NFLPA’s

claim that the award violated public policy because it

condoned a “breach of fiduciary duty.” The Court

rejected the argument about Lombardo’s alleged

failure to warm, concluding that “Lombardo’s

decision not to publish specific wamings about Star

Caps does not violate his duties to players.

Lombardo testified that he decided to send a general

warming about weight-loss supplements rather than

about Star Caps in particular because ‘the problem is

the whole area of weigh[t) reduction products.’ Nar‘!

Football League Players Ass'n, 654 F. Supp. 2d at

970. The Court therefore concluded that “Lombardo

exercised his discretion under the Policy to educate

players, and did so in a general way because he

believed that all weigh[t}-reduction products, not just

Star Caps, carried risks.” Jd The Court, therefore,

all claims related to Plaintiffs’ failure to warn claim.

That the parties filed cross-appeals with the United

States Court of Appeals for the Eighth Circuit, which

affirmed the district court’s decision in its entirety.

Williams yv. Nat'l Football League, 582 F.3d 863 (8th

Cir. 2009). The Eighth Circuit held that Plaintiffs’

statutory claims were not preempted because it could

not identify “a specific provision of either the CBA

or the Policy which must be interpreted.” /d. at 877.

That on June S$, 2009, Plaintiffs attempted to file a

second amended complaint in this case identifying the

bases for their statutory claims, adding a new

“retaliation” claim, and specifically alleging breaches

of the collectively-bargained Policy.

That this Court held that Plaintiffs were not permitted

to file the second amended complaint without leave of

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Court, pursuant to a filed motion. Plaintiffs never

submitted a Motion for Leave to File the Second

Amended Complaint.

171. That the Court's summary judgment decision left

only two of Plaintiffs’ claims for resolution: (1)

Plaintiffs’ claim under the three-day notice provision

of DATWA; and (2) Plaintiffs’ claim under

DATWA's confidentiality requirements and the

collectively-bargained Policy on Anabolic Steroids

and Related Substances.

ORDER

Phat Defendant NFL is Plaintiffs Kevin Williams and

Pat Williams's employer for purposes of DATWA

That Defendant NFL violeted DATWA’s three-day

notice requirement.

That Plaintiffs Kevin Williams and Pat Williams were

not harmed by Defendant NFL’s DATWA violation.

“ That Plaintiffs Kevin Williams and Pat Williams

failed to prove by a preponderance of the evidence

that Defendant NFL’s’ violated DATWA’s

confidentiality provision.

5 That Plaintiffs Kevin Williams and Pat Williams’s

request for a permanent injunction is denied.

6 That this Court's previous temporary injunction ts

dissolved

That the attached memorandum is_ incorporated

herein

Let judgment be entered accordingly.

BY THE COURT

Dated: May 6, 2010 s/Gary larson =

Gary Larson

Judge of District Court

JUDGMENT

| hereby certify that the judgment contained in this

heretn above constitutes the Judgment of the Court

Dated Court Administrator

25a

MEMORANDUM

I, LEGAL ANALYSIS

A. The NFL is Plaintiffs’ Employer for

Purposes of DATWA.

For purposes of DATWA, the NFL is Plaintiffs

employer. DATWA governs only ‘‘employer drug testing of

employees." Kise v. Product Design & Eng'g, 453 N.W.2d

$61, 563 (Minn. Ct. App. 1990). DATWA defines an

employer as “a person or entity located or doing business in

this state and having one or more employees, and includes

the state and all political or other governmental subdivisions

of the state." Minn. Stat. § 181.950, subd. 7. An employee

is “a person, independent contractor, or person working for

an independent contractor who performs services far

compensation, in whatever form, from an employer.” /d.

subd. 6. Plaintiffs are indisputably employees of the NFL as

well as the Vikings, for DATWA purposes.

The evidence adduced at trial shows that the NFL,

along with the Minnesota Vikings, is a joint employer of

Plaintiffs. The doctrine of joint employer status recognizes

that a worker may have more than one employer. See Zheng

v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003) (“The

regulations promulgated under the FLSA expressly recognize

that a worker may be employed by more than one entity at

the same time”) (citing 29 C.F.R. § 791.2 (2003)); Gargano

v. Diocese of Rockville Ctr., 888 F.Supp. 1274, 1278 a.2

(E.D.N.Y. 1995) (“The concept of ‘joint employer’ most

frequently arises in the context of claims asserted under the

[NLRA], whether by individuals or the National Labor

Relations Board’), affd, 402 80 F.3d 87 (2d Cir. 1996).

Whether a person “‘possesse[s] sufficient control over the

work’" of employees to qualify as a joint employer “‘is

essentially a factual issue.” JIJnfernational House v. NLRB,

676 F.2d 906, 912 (2d Cir. 1982) quoting Boire v

Greyhound Corp., 376 U.S. 473, 481 (1964)).

£08

_ The NFL, not the Vikings, controls everything about

the drug testing process for Minnesota employees including

when the testing occurs, where it occurs, how often it occurs,

who conduct the specimen collection, and which !ab tests the

sample. Moreover, the NFL's reach extends beyond drug

testing to virtually every aspect of a player's employment,

down to the uniforms the players are obligated to wear.

The NFL has significant contro] over the players’

employment. See Boire, 376 U.S. 473 (determining joint

employment under the National Labor Relatiens Act based

on the “indicia of control” exercised by an employer); Auto.

Trade Ass'n of Maryland v. Harold Folk Enters., Inc., 484

A.2d 612 (1984) (finding joint employer status may be found

where two or more businesses exercise some contro] over the

work or working conditions of an employee). The Minnesota

Supreme Court articulated a five-part test to determine

whether an employment relationship exists: (1 the right to

contro! the means and manner of performance; (2) the mode

of payment: (3) the furnishing of materia’ or tools; (4) he

control of the premises where the work is done; and (5) the

right of the employer to discharge. Guhlke v. Roberts Truck

Lines, 128 N.W.2d 324 (Minn. 1964). The NFL is an

employer under each part of this test.

1. The NFL Controls Plaintiffs’ Means and Manner

of Performance and the Location of Team Play,

The NFL directly and indirectly controls many

aspects of a player's life both on and off the field. This

control emanates from a series of formal mules and

regulations existing both separate from and in conjunction

with the CBA.

In Boire v. Greyhound Ccrp.. the Supreme Court

indicated that a determination of joint employment, under the

National Labor Relations Act, is based on the “indicia of

control” exercised by an employer. 376 V.S. 473 (1964).

There. the Court found that maintenance workers hired by an

27a

independent contractor to clcan a bus terminal were jointly

employed by Greyhound, the bus company which owned the

terminal. /d@ The Supreme Court remanded the case for a

factual evaluation of the contro! Greyhound exercised over

the work of the maintenance employees. /d.

Subsequently, the Fifth Circuit Court of Appeals

found that Greyhound was an employer of the maintenance

workers because it exerted control over many aspects of the

workers’ employment. N.L.R.B. v. Greyhound Corp., 368

F.2d 778 (Sth Cir. 1966). The court looked to the following

facts: (1) the employees constituted a homogeneous, readily

identifiable and stable unit; (2) the service agreements gave

Greyhound the nght to establish work schedules, assign

employees to perform work, specify the exact manner and

means of accomplishing work, ind to contro] regular and

overtime wages; (3) employees used Greyhound’s equipment

and supplies in their work, and; (4) in the course of their

duties, porters were given detailed supervision by other

Greyhound personnel. /d. at 781.

Similarly, the NFL exerts control over many aspects

of the players’ employment. The NFL exerts some of its

contro! over the means and manner of a player’s performance

by exercising control over the teams. The NFL directly

regulates teams and team owners. For example, anyone

buying into the NFL as a team owner must adhere to the rules

and guidelines set forth in Policy Manual! for Member Clubs,

2009 edition (“NFL Owner's Manual”). Any owner failing

to abide by the NFL Owmer’s Manual faces punishment

issued by the NFL. Like all prospective owners, the NFL

required the Wilfs, the Vikings owners, to und ergo an

extensive background check by the NFL before they were

permitted to purchase the Vikings.

The NFL Owner's Manual also governs the manner

in which the Vikings operate. It dictates rules governing

team operations, salaries, mechanism of salary caps,

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television contracts, public relations, playing rules, publicity,

revenue sharing, and discipline. The NFL Commissioner has

sole authority ever such issues. The NFL maintains a strict

hold over the contract process -refusing, for example, to

approve contracts that do not use an NFL-mandated form or

are not negotiated by registered agents. Before a player can

sign on with a team, the NFL must review and approve his

contract.

The NFL also controls where teams can operate. If

the Vikings relocated, the Wilfs would be required to pay the

NFL an excise tax. If an expansion team joined the NFL, it

too would have to pay the NFL an excise tax. The NFL's

contro] also extends to team playing schedules and locations.

The NFL decides which teams will play against each other

each week, when. where, and at what time the games will be

played.

The NFL's level of control over the location, manner,

and means of players’ performance makes it appropriate to

adjudicate it as an employer for DATWA purposes.

2. The NFL Controjs the Mode of Payment to

Plaintiffs.

The NFL argues that it should not be considered

players’ “employer” under DATWA because it does not

issue a weekly paycheck to players. Nothing in DATWA

requires such a restrictive reading. In fact, language defining

“employee” suggests the contrary -DATWA specifically

contemplates looking beyond the technicalities of how an

employee is paid and instead focuses on “compensation, in

whatever form." Minn. Stat. § 181.950(6).

The NFL negotiates for, collects, and apportions

funds from which Plaintiffs and all other NFL players are

paid. As stated earlier, the NFL’s level of control over NFL

teams is akin to that of a franchisor over a franchisee. The

NFL is aware of the specific financial conditions of teams

29a

requiring credit while individual teams do not know about

other teams’ finances. NFL teams must operate within the

confines of rules and regulations imposed by the NFL. The

NFL even identified the League as a franchise, and the teams

as franchisees, in its 2000 IRS filing.

An additional sign of the degree of the NFL‘s contro]

over teams is the NFL’s avoidance of the unrelated business

tax. Companies, such as Target and McDonalds, would be

required to pay the unrelated business tax if one were to

borrow from the other. Here, member teams are neither

independent entities nor “unrelated” to the NFL in a

corporate sense. Hence, member teams avoid the unrelated

business tax when revenue filters to them from NFL bond

transactions.

At the heart of the NFL's control is commercial

control. The NFL even determines the companies with

whom players can contract for endorsements. None of these

enumerated control points, or others proved at trial, are

dictated or addressed in the CBA. With a few exceptions

involving pre-season play, the NFL negotiates and enters into

all media contracts on behalf of the teams. The NFL has

contracts with CBS, ESPN, Fox, and others. The NFL

controls national sponsorships with companies such as Coca-

Cola and Verizon. The NFL runs the NFL Network, the NFL

website, NFL Film, and historical programming without any

input from the teams or players. The NFL is the conduit

from which revenue from those dea!s is distributed in order

to fund teams and pay players.

The NFL also controls team finances as part of

Revenue Sharing and Supplemental Revenue Sharing

programs. All teams receive revenue sharing from the NFL.

The revenue sharing comes from fees received by the NFL

far, infer alia, media and-endorsement contracts. The NFL

maintains and manages an agency account where shared

funds are deposited. The NFL then distributes these funds

from the agency account to teams pursuant to a formula

created by the NFL. The teams are removed from the

process and revenue pooling occurs automatically. To

solidify the NFL’s control over the process, the NFL

Commissioner exercises discipline if a team fails to pool

funds appropriately. Moreover, teams are not permitted to

opt out of this process.

While NFL teams technically remit checks to players

as compensation, some of these funds come from the NFL

League Office. Part of players’ salaries are paid for with

funds from the NFL through the revenue sharing program.

Player benefit plans, including pensions, tuition

reimbursement, severance pay, and termination pay, are

funded by NFL contracts and the NFL revenue stream. With

regard to Plaintiffs, revenue sharing ts particularly important

The Vikings could not pay its players’ salaries and business

expenses without the additional income it receives from

revenue sharing.

The NFL controls the mode of payment to Plaintiffs

because jt controls and supplies many of the funds to the

teams that the teams then pay Plaintiffs for the performance

and services. The NFL meets the payment control prong of

the Guhlke test.

3. The NFL Controls the Materials and Tools Used

by Plaintiffs.

The NFL controls many of the materials and tools

used by Plaintiffs in the course of their employment. The

NFL acts as a franchisor of NFL teams controlling the rules

that players must follow in order to play professiona!

football. The NFL controls just about every aspect of

Plaintiffs’ workplace performance including what they wear,

how they are permitted to act, and what football and non-

football rules they must follow.

3la

Moreover, the NFL furnishes and regulates the tools

and materials with which players perform on the field. The

NFL dictates step-by-step exactly what an NFL uniform must

look like to pass as suitable attire. The NFL controls even

minute details, such as the color of a player’s chinstrap. The

NFL’s power over players’ tools and materials may even

override medical advice and/or treatment. For example, the

NFL League Office has final approval, even if contrary to

medical advice, on whether a player will he permitted to use

tinted eye shields during a game. If a player chooses not to

follow the rules imposed by the NFL, he [aces fines or

possible discharge. The NFL also meets the material and

tools control prong of the Guhlke test for determining the

identity of a worker's employer.

4. The NFL Controls the Right to Discipline and

Discharge Plaintiffs.

The NFL’s power to control is most evident in its

ability to discipline and discharge players. The NFL's

conduct policy applies to all NFL players and club

employees. The NFL Commissioner is empowered to

impose fines and subject NFL players and personnel,

including coaches, referees and owners to non-monetary

discipline as well. The NFL determines game-related

misconduct including on-field infractions. NFL employee

Merton Hanks enforces the uniform policy and the NFL

collects fines for violations. The NFL also polices and

punishes player conduct off of the field.! The NFL also

| For example, Commissioner Goodell recently suspended

Pittsburg Steelers Ben Roethlisberger for six games for violating the

league’s personal conduct policy, even though he was not charged with

any crime. It is interesting to , note that a highly respected newspaper

charactcrizes Roethlisberger's position as “an employee of the NFL.”

William C, Rhoden, Commissioner sends pn message to rookie class,

GLOBAI. EDITION OF THE N.Y. TIMES, April 24-25, 2010, at Sports 13.

J4a

maintains the right to discharge players. For example. the

NFL discharged Vikings player Bryan McKinnie from the

2009-2010 Pro Bowl Team, The NFL withheld McKinnie’s

Pro Bowl pay and required him to re-pay his Pro Bowl

related expenses.

Finally, the NFL has the sole right to discipline

players under the steroid Program. Although the

Independent Administrator, in theory, has discretion whether

to refer a player for discipline, Birch usurped Lombardo’s

authority in deciding who to refer for discipline. The NFL

has ultimate authority to impose discipline under the

program, Neither the Vikings nor any other team, is

empowered to issue, prevent, or alter any discipline under the

Program.

The NFL meets almost all of the criteria under

Guhlke. The NFL has the right to contra | the means and

manner of performance, the mode of payment, the furnishing

of material or tools; exerts some control of the premises

where the work is done, and has the nght to discharge and

discipline players. /d. Based on the Guhlke test established

by the Minnesota Supreme Court, the NFL is a joint

employer of Plaintiffs for DATWA purposes.

B. DATWA Applies to the NFL’s Drug Testing ip this

Case.

DATWA applies to employers who conduct drug or

alcohol testing. Minn. Stat. § 181.951. As established above,

drug or alcohol testing is defined as an “analysis of a body

component sample ... for the purpose of measuring the

presence or absence of drugs, alcohol, or their metabolites in

the sample tested.” Minn, Stat. § 181.950(5). DATWA

defines ‘‘drug” as a controlled substance as defined by Minn.

Stat. § 152.01(4). Minnesota’s controlled substance statute

specifically includes “anabolic steroids," -a substance for

which the NFL tested players.

33a

Minn. Stat. § 152.01 (4)(6). Minnesota law also

states that a controlled substance includes drugs, which are

defived as “as medicines and preparations recognized in the

United State Pharmacopocia or National Formulary and any

substance or mixture of substances intended to be used for

the cure, mitigation, or prevention of disease of either

humans or other animals.” Minn. Stat. § 152.01, subd. 2.

Bumetanide is included in this definition, Drug testing for

Bumctanide falls under the auspices of DATWA and applies

to the NFL in this euse.

DATWA covers the substances under the NFL's drug

testing Policy. DATWA applics to the NFL and the drug

testing at issue in this case.

C. Defendants Did Not Comply With DATWA's Three-

Day Notice Requirement for Test Results.

Minnesota Statute § 181.953 subdivisions 3 and 7

provide that the “laboratory shal} disclose to the employer a

written test result report ... within three working days after a

confirmatory test” and that the employer ‘“[within three

working days after receipt of a test result report from the

testing laboratory ... shall inform in writing an employee ...

of a positive test result on a confirmatory test.” The lab did

not disclose the confirmatory “B” sample test results to the

NFL within three days and that the NFL did not disclose the

results to Plaintiffs three days later.

Kevin and Pat were initially tested on July 26, 2008,

but did not receive notice of the positive test results until

September 26, 2008 and October 3, 2008, respectively. Dr.

Lombardo stated that players generally receive notice of the

initial test “anywhere from 14 days to 30 days, 35 days,

sometimes longer, ” hut that there is no time period by which

he must inform players of 8 positive test result

Lombardo reports 1o the NFL, is paid by the NFL,

and takes direction from the NFL. Lombardo is an agent of

$4a

the NFL and received Plaintiffs’ test results, in his capacity

as an agent of the NFL. Lombardo reccived both Kevin and

Pat's “A sample test results on August] 3, 2008. Plaintiffs

did not receive confirmation of their test results until Jate

September and carly October. Regardicss of whether the

NFL desired to give Plaintiffs’ test results an additional level

of review, they violated DATWA by not disclosing the

confirmatory test results to Plaintiffs within three working

days. This lapse in time violates DATWA's three-day notice

requirement. The NFL's practice docs not meet or exceed

DATWA’s three-day notice requirement

Although, Defendants failed to comply with

DATWA's three-day notification requirement, Pluintiffs

testified that they did not suffer any harm as a result of the

delay, When asked how he was harmed by any delay in

notification, Kevin responded, “‘] don't know, | wasn't.’

Similarly, Pat answered, “Il guess [| wasn't harmed.’

Because Plaintiffs did not suffer any damages as a result of

the delay in notification, they are not entitled to relicf under

DATWA.

D. Plaintiffs Failed to Prove that the NFL Breached

DATWA's Confidentiality Requirement.

Plaintiffs claim that the NEL breached — the

confidentiality requirement of DATWA DATWA's

confidentiality requirement states thal “test result reports and

other information acquired in the drug or alcohol testing

process are .., private and confidential information, and

may not be disclosed by an employer or laboratory to unother

employer or to a third-party individual, governmental

agency, or private organization without the written consent of

the employee or job applicant tested.” Minn. Stat

§ 18).954(2). Plaintiffs did not prove by a preponderance of

the evidence that the NFL disclosed Plaintiffs’ test results

inappropriately

35a

Plaintiffs’ stated, at trial, that they shared the results

of their positive drug tests with others. Kevin told his wife,

Vikings’ Coach Brad Childress, his agent Candon, and his

attorney. Coach Childress testified that he told Vikings Vice

President of Football Operations Brzezinski. Condon told

Lartigue, another agent in Condon’s office. Kevin also told

David Black and Dennis Crouch, two independent

toxicologists. Kevin also stated that he may have told

additiona) people, but “can’t remember everybody on the

list.” Pat told his wife, his agent Wright, Kevin, and Coach

Childress. Plaintiffs’ coach, agents, and attomey, as well as

Brzezinski all testified that they were not the source of the

leak. Lartigue and Plaintiffs’ wives did not testify. Because

sO many people outside of the NFL were informed of

Plaintiffs’ test results prior to the media reports, it is

impossible for the Court to conclude by a preponderance of

the evidence that the NFL must have violated DATWA’s

confidentiality provision.

The Court dues conclude, however, that the media

leak was clearly of no importance to the NFL Commissioner,

as he did nothing to determine that the NFL did not violate

DATWA's confidentiality provision. The Commissioner did

not conduct an investigation or make any inquires into the

matter. Birch was likewise cavalier about the leak of highly-

confidential information or potential violation of state law.

Birch claimed to have conducted his own investigation into

the leak at the NFL. However, Birch also claimed that the

tern “highly placed NFL source” that told the media about

Plaintiff's test results could have referred to anyone even

tangentially involved in the NFL, including players, agents,

or coaches. Given Birch’s definition, it is nothing short of

miraculous that he could single-handedly launch a thorough

investigation.

Plaintiffs’ failed to support their allegations that the

NFL leaked Plaintiffs’ test results to the media with

evidence. Plaintiffs failed to prove by a preponderance of the

J0&

evidence that the NFL breached DATWA'’s confidentiality

requirement.

E. Plaintiffs’ Request for a Permanent Injunction is

Denied.

Plaintiffs seek an injunction, permanently enjoining

the NFL from disciplining Plaintiffs as a result of the drug

testing and subsequent discipline. DATWA provides that

“[a]Jn employee ... has standing to bring an action for

injunctive relief requesting the district court to enjoin an

employer or Jaboratory that commits or proposes to commit

an act in violation of sections 181.950 to 181.954." Minn.

Stat. § 181.956 (3).

This Court has discretion to issue an injunction if

Plaintiffs have proven their case on the ments. Bio-Une, Inc.

v. Burman, 404 N.W.2d 318, 320 (Minn. Ct. App. 3987). “In

determining whether permanent injunctive relief is

warranted, the district court must first determine whether the

plaintiff has proven its case.” Thomas & Betts Corp. v.

Leger, No. A04-260, 2004 WL 2711391, at *25 (Minn. Ct.

App. Nov. 24, 2004) (citing Minn. Pub. Interest Research

Group v. Butz, 358 F. Supp $84, 625 (D. Minn. 1973), aff'd,

498 F.2d 13]4 (8th Cir. 1974)). If the court finds that a

plaintiff has succeeded on the merits, it must then balance the

likelihood of irreparable harm to the plaintiff against the

possibility of injury to the defendant and other interested

parties as well as any public policy considerations. /d.

Plaintiffs failed to establish success on the merits.

The Court denies Plaintiffs’ request for a permanent

injunction and dissolves the temporary injunction that was

put in place on December 3, 2008.

il. CONCLUSION

Based on Minnesota law and the facts adduced at

trial, Defendant is Plaintiffs’ employer for purposes of

DATWA. Defendant violated DATWA's three-day notice

37a

requirement. Defendant’s drug testing notice policy did not

meet or exceed DATWA. However, Plaintiffs admitted that

they did not suffer any harm from the delay in notice.

Plaintiffs, therefore, may not recover for Defendant's

violation. Plaintiffs failed to prove that Defendant violated

DATWA's confidentiality provision. Plaintiffs’ request for a

permanent injunction is denied and this Court's previous

temporary injunction is dissolved.

Jjsa

Court File No. 27-CV-08-29778

Judge Gary Larson

STATE OF MINNESOTA

COUNTY OF HENNEPIN

DISTRICT COURT

FOURTH JUDICIAL DISTRICT

Kevin Williams, Pat Williams,

Plaintiffs,

Nationa! Football League,

Defendant.

ORDER AND MEMORANDUM OF LAW GRANTING

PLAINTIFFS’ MOTION TO STAY DISSOLUTION OF

TEMPORARY INJUNCTION PENDING APPEAL

The above-entitled matter came for a hearing before the

Honorable Gary Larson, Judge of Hennepin County District

Court, on May 6, 2010. Steven Rau, Esq., Peter Ginsberg,

Esq., and Christina Burgos, Esq., appearea for and on behalf

of Plaintiffs, Kevin and Pat Williams. Joseph Schmitt, Esq.,

appeared for and on behalf of Defendants, the Nationa!

Football League. Based upon all files, records, ar

proceedings herein, together with the arguments of counsel,

IT IS HEREBY ORDERED:

|. Plaintiffs Kevin Williams and Pat Williams“ Motion to

Stay Dissolution of Temporary Injunction Pending

39a

Appeal is PREMATURE AS THEY HAVE NOT YET

FILED A NOTICE OF APPEAL.

If Plaintiffs Williams and Pat Williams timely file a

notice of appeal, the Court will grant their motion to stay

the Findings of Fact, Conclusions of Law, and Order for

Judgment of this Court dated May 6, 2010,

The order to stay dissolution of temporary injunction

pending appeal will be conditioned upon Plaintiffs

posting a supersedeas bond in the amount of $10,000.

The attached memorandum is incorporated herein.

BY THE COURT:

Dated: May 21, 2010 s / Gary Larson

Gary Larson

Judge of District Court

C-1655 Government Center

Minneapolis, MN 55487

(612) 348-6102

4ua

MEMORANDUM

x Introduction

On May 6, 2010, this Court issued its Findings of

Fact, Conclusions of Law, and Order for Judgment after the

matter came before the Court for a trial March 8 - 12, 2010.

The parties submitted post-trial briefs and the case was taken

under advisement on April 2, 2010.

In its Order, the Court found that the Nationa! Football

League, (“Defendant”), is Kevin Williams and Pat Williams’,

(“Plaintiffs”), employer for the purposes of the Drug and

Alcohol in the Workplace Act (“DATWA"). The Court also

found that Defendant violated DATWA by failing to abide

by the Legislature’s mandate that employees be given notice

of a failed drug test within three days. However, the Court

found that Plaintiffs were not damaged by Defendant's

DATWA violation in delaying notice of Plaintiffs’ positive

test results. The Court denied Plaintiffs’ request for a

permanent injunction and dissolved its temporary injunction.

Plaintiffs have stated their intent to appeal this Court’s

decision and seek & reinstatement of the temporary injunction

pending appeal. Plaintiffs have not, however, filed a notice of

appeal or appeal. Plaintiffs instead filed a Motion to Stay

Dissclution of Temporary Injunction Pending Appeal with

this Court. Defendant opposes the motion.

Il. LEGAL ANALYSIS

A. Standard of Review

The tial court may continue an injunction in effect

pending appeal, notwithstanding the filing of cost and

supersedeas bonds. David N. Volkmann Const., Inc. v. Isaacs,

428 N.W.2d 875, 876 (Minn. Ct. App. 1988) (citing Svate v.

Robnan. Inc., 107 IN. W.2d 51, 53 (Minn. 1960)). If a stay is

permitted, the trial court must establish and approve the

4la

terms of security to protect the respondent. Minn. R. Civ. P.

62.02, 62.03; see also Minn. R. Civ. App. P. 108.01, subd. |

(trial court must approve amount and form of supersedeas

bond), 108.01, subd. 4 (on appeal from decision requiring

assignment of documents, supersedeas bond may be waived

if documents are deposited with officer appointed by trial

court). David N. Volkmann Const., 428 N.W.2d at 876.

According to Minnesota Rules of Civil Appellate

Procedure Rule 108.02, subd. 1,

A party seeking any of the following relief must

move first in the trial court: (a) a stay of enforcement

of the judgment or order of a trial! court pending

appeal; (b) approval of the form and amount of

security, if any, to be provided in connection with

such a stay; or (c) an order suspending, modifying,

restoring, or granting an injunction while an appeal is

pending pursuant to Minn. R. Civ. P. 62.02.

Minnesota Rule of Civil Procedure 62.02 also provides for

the granting of an injunction pending appeal. It states,

When an appeal is taken from an interlocutory or

final judgment granting, dissolving, or denying an

injunction, the court in its discretion may suspend,

modify, restore, or grant an injunction during the

pendency of the appeal upon such terms as to bond or

otherwise as it considers proper for the security of the

rights of the adverse party.

Minn. R. Civ. P. 62.02.

When determining whether or not to grant a stay

pending appeal, the trial court must balance the appealing

party's interest in preserving the status quo, so that effective

relief will be available if the appeal succeeds, against the

interests of the public or the prevailing party in enforcing the

decision and ensuring that they remain “secure in victory”

42a

while the appeal is pending. DRJ, Inc. v. City of St. Paul, 741

N.W.2d 141, 144 (Minn. Ct. App. 2007).

“The party seeking a stay pending appeal must show (1)

that it is likely to succeed on the merits; (2) that it will suffer

irreparable injury unless the stay is granted; (3) that no

substantial harm will come to other interested parties; and (4)

that the stay will do no harm to the public interest.” James

River Flood Control Ass'n v. Watt, 680 F.2d 543, 544 (8th

Cir. 1982) (citation omitted); see Arkansas Peace Cir. v.

Arkansas Dept. of Pollution Control, 992 F.2d 145, 147 (8th

Cir. 1993). “Thus, the factors considered in evaluating

[defendant's] motion are virtually identical to those

considered in assessing the initial motion for a preliminary

injunction.” Metro Networks Commc'ns Lid. P'ship v.

Zavodnick, No. Civ. 03-6198, 2004 WL 73591, at *3 (D.

Minn. Jan. 15, 2004) (citing United Healthcare Ins. Co. v.

AdvancePCS, Civ. No. 01-2320, 2002 WL 519720, at *1 (D.

Minn. Mar. 22, 2002)).

Minnesota Rule of Civil Procedure 62.02 only applies

when the party seeking a stay has filed an appeal. Plaintiffs’

Motion to Stay Dissolution of Temporary Injunction Pending

Appegl is premature because Plaintiffs have not yet filed an

appeal or notice of appeal. However, when Plaintiffs file

such an appeal, the Court will grant their motion based on the

following analysis.

B. This Court may exercise its discretion to grant a

stay.

In exercising its discretion to grant a stay of dissolution

of th® temporary restraining order, this Court must balance

Plaintiffs’ interests in preserving the status quo against

Defendant's interest in enforcing discipline against Plaintiffs.

The Court must determine if Plaintiffs are likely to succeed

on the merits, will suffer irreparable injury unless the stay is

granted, if substantial harm will come to other interested

43a

parties. and whether the stay will harm the public interest.

Each factor is discussed below.

I, Plaintiffs are likely to succeed on the

merits.

Plaintiffs have a likelihood of success on the merits.

Plaintiffs have the burden on appeal to prove that the trial

court made an error of fact or law. Graffius v. Control Data

Corp., 447 N.W.2d 215, 216 (Minn. Ct. App. 1989),

Typically, the likelihood of success on the merits is the most

significant factor. S & M Constructors, Inc. v. Foley Co., 959

F.2d 97, 98 (8th Cir. 1992). In order to satisfy the “likelihood

of success” factor, the moving party does not have to

establish “‘absolute certainty of success,’” but only “that they

are ‘likely’ to succeed on the merits.” Jowa Utils. Bd. v.

FCC, 109 F.3d 418, 423 (8th Cir. 1996) (quoting

Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C.

Cir. 1986)). Further, to prove that it is likely to succeed on

the menits on appeal], a party does not need to prove that there

is a greater than fifty-percent chance that it wil] prevail on

the merits. Knutson v. AG Processing, Inc., 302 F.Supp.2d

1023, 1035 (N.D. lowa 2004) (citing Dataphase Sys. Inc. v.

C L Sys. Inc., 640 F.2d 109, 113 (8th Cir. 1981). “{A]t a

minimum, the movant is required to show ‘serious questions

going to the merits.’” /d (quoting Jn re DeLorean Motor Co.,

755 F.2d 1223, 1229 (6th Cir. 1985)).

The DATWA issues facing this Court were a matter of

first impression. There is no case law that was able to guide

this Court. It was assumed, throughout this case, that the

Court's decision would be appealed by one or both parties.

The Court found that Defendant violated Plaintiffs’ rights

under DATWA by failing to give notice of Plaintiffs’ test

results within three days. However, this Court also found that

Plaintiffs were not harmed by Defendant's DATWA

violation.

44a

An employee, whose rights were violated under

DATWA, is entitled to damages and other equitable relief,

including ordering that ‘he injured employee be reinstated.

Minn. Stat. § 181.956. “In addition to any other remedies

provided by law, an employer or laboratory that violates

sections 181.950 to 181.954 is liable to an employee or job

applicant injured by the violation in a civil action for any

damages allowable at law.” Minn. Stat. § 181.956 (emphasis

added), The Court found that Plaintiffs were not injured by

Defendant's violation based on Plaintiffs’ own testimony.

Public policy, however, dictates that Defendant should

not be permitted to benefit from its own misconduct. See,

e.g., Ganley Bros. v. Butler Bros. Bldg. Co., 212 N.W. 602,

603 (Minn. 1927) (refusing to enforce, based on public

policy, a party’s attempt to escape his own fraud); Ya/es v.

Hanna Min. Co., Inc., 365 N.W.2d 783, 787 (Minn. Ct. App.

1985) (finding that a contract which purported to delegate an

employer's obligation to provide a safe environment for

employees was ineffective to shield the employer from his

own negligence). Here, Defendant knew Star Caps contained

Bumetanide, that players were ingesting Bumetanide, that

Bumetanide was dangerous, and. withheld information about

Star Caps, knowing that players would suffer as a result.

Defendant created a trap that it knew would result in

violations of the program.

Violations of public policy and violations of statutes are

inextricably linked because statutes are one way in which

states set forth their public policy. “Public policy, where the

legislature has spoken, is what it has declared that policy to

be. So far ‘as the question of policy is concerned, [the] statute

settles. the matter.” Thompson y. Allstate Ins. Co., 412

N.W.2d 386, 388-89 (Minn. Ct. App. 1987). This case

presents pressing issues of an important state law designed to

protect employees. Guidance in the consistent application of

DATWA is needed, and Plaintiffs’ may prevail on appeal.

45a

This Coun has no delusions of grandeur and has had on

previous occasions been reversed by the Court of Appeals

and Supreme Court.

Regardless of Plaintiffs’ likelihood of success on the

merits, the Court must consider the other factors in granting a

stay. “The court need not, however, address the merits of the

parties’ respective positions because the court finds that all

three of the remaining factors weigh decisively in favor of

[the stay].” 7win Cities Galleries, LLC v. Media Arts Group,

Inc., 43) F.Supp.2d 980, 983 (D. Minn. 2006) (citing Watt,

680 F.2d at 544). Because the other factors weigh heavily in

Plaintiffs" favor, their likelihood of success on the merits is

not determinative of whether the Court should stay the

dissolution of the temporary restraining order.

2. Plaintiffs will suffer irreparable harm

unless the stay is granted.

Plaintiffs will suffer irreparable harm if they are

suspended before the appea) process is exhausted. The

United States Supreme Court stated that a professional

basketball player would suffer irreparable injury if he could

not continue playing because a significant part of his career

“will have been dissipated, his physical condition, skills and

coordination will deteriorate from lack of high-level

competition, his public acceptance as a super star will

diminish to the detriment of his career, his self-esteem and

pride will have been injured and a great injustice will be

perpetrated on him.” Haywood v, Nat’! Basketball Ass'n, 40)

U.S. 1204, 1205 (1971).

Courts have found that loss of NFL playing time is also

sufficient to constitute irreparable harm. See Jackson, et. al.

v. Nat'l Football League, 802 F.Supp. 226, 231 (D. Minn.

1992) (finding that “[t)he existence of irreparable injury is

underscored by the undisputed brevity and precariousness of

the players" careers in professional sports, particularly in the

NFL”); Bowman vy. Natl'l Football League, 402 F.Supp. 754,

46a

756 (D. Minn. 1975) (stating that, without injunctive relief, a

professional football player would “suffer irreparable harm,

not compensable in terms of damages, and that the court's

capacity to do justice will thereby be rendered futile”);

Denver Rockets v. All-Pro Mgmt., Inc., 325 F.Supp. 1049,

1057 (C.D. Cal. 1971) (stating that the professional

basketball player will suffer greater harm than that of the

NBA).

In this case, because the NFL playing season is relatively

short, Plaintiffs would suffer a significant loss of playing

time without the benefit of a stay. The loss of four games is

considerable, given the relatively short scason for

professional football and the limited number of years

remaining in Plaintiffs" football careers. Plaintiffs" ability to

make the Pro Bowl and, ultimately have a fair opportunity

for the Hal] of Fame wil] be jeopardized if they are

suspended. Moreover, Plaintiffs" reputations and standing in

the community will be forever compromised.

The Court is satisfied that Plaintiffs would suffer

irreparable harm absent a stay of the dissolution of the

injunction.

3. No substantial harm will come to the

NFL.

The NFL will not be substantially harmed by a stay of

dissolution of the temporary restraining order pending

appeal. Defendant argues that it will suffer irreparable harm.

Defendant claims that granting a stay pending appeal would

send the wrong message to young fans and skew the

competition. Defendants also argue thai a stay would pose a

disadvantage to other players who attained their playing

weight without using banned substances, as well as other

teams whose players already served thcir suspensions for

using Bumetanide or other prohibited substances.

47a

Defendant could have easily avoided this very situation

by informing players or teams about what it already knew —

that Star Caps contained a hidden, dangerous substance.

Defendant knew that many players were already

inadvertently ingesting Bumetanide, and continued to place

the health, safety, and welfare of its players in jeopardy, so

that Ado!pho Birch could play a game of gotcha. The league

clearly allowed a half dozen other players to use Bumetanide

without punishment. Granting a stay pending appea) would

not cause Defendant irreparable harm, it would only affect

Defendant's ability to immediately sanction Plaintiffs and

would not affect the general enforceability its anti-doping

policy. This Court finds that Defendant would suffer no harm

by the continued imposition of an injunction during appeal.

4. Granting the stay will not harm public

interest.

Granting a stay of dissolution of the temporary

restraining order will benefit public interests. DATWA is a

statute reflecting the public policy of the State of Minnesota.

Natl Football League Players Ass'n v. Nat'l Football

League, Civ. No. 08-6254, 2009 WL 1457007, at *10 (D

Minn, May 22, 2009). “Public policy, where the legislature

has spoken, is what it has declared that policy to be. So far as

the question of pelicy is concerned, [the] statute settles the

matter.” Thompson y. Allstate Ins. Co., 412 N.W.2d 386,

388-89 (Minn, Ct. App. 1987).

Entering a stay pending appeal will allow the Minnesota

Court of Appeals or the Supreme Court to review the case on

the merits and ensure that the legislative will and public

policy is served as best as possible.

The Court has balanced the factors under DA/, 741

N.W.2d 141 and Watt, 680 F.2d 543, It is clear that Plaintiffs

will suffer irreparable injury unless the stay is granted, that

no substantial harm will come to Defendant, and that the stay

will do no harm to the public interest. In sum, the Court

“an

concludes that these factors clearly support granting

Plaintiffs’ Motion to Stay Dissolution of Temporary

Injunction Pending Appeal. After Plaintiffs file a notice of

appeal, the Court will grant their motion,

C. The stay ts conditioned upon Plaintiff's posting u

supersedcas bond,

The trial court has a large degree of discretion regarding

the issuance of a stay and the conditions under which a stay

is granted. See, Matson v. Matson, 310 N.W.2¢ 502 (Minn

1981). The amount of security required for a stay is

ultimately a matter for the Court's discretion. See, ey., No

Power Line Inc, v. Minn. Envil. Quality Council, 262

N.W.2d 312, 331-32 (Minn. 1977) (explaining that an

unsecured stay should be granted only in rare circumstances).

The Coun, therefore, sets a supersedeas bond in the

amount of $10,000. A stay of dissolution of the temporary

injunction pending appeal will be entered and in effect until

appellate review in this matter is exhausted. Plaintiffs are

required to post a supersedeas bond in the amount of

$10,000.

HI, CONCLUSION

Plaintiffs have not yet filed an appeal or a notice of

appeal. As such, their Motion to Stay Dissolution of

Temporary Injunction Pending Appeal is premature.

Assuming that Plaintiffs file an appeal, this Court has the

discretion to grant a stay. Plaintiffs have shown some

likelihood of success on the merits. More importantly,

Plaintiffs have amply demonstrated that they would suffer

irreparable injury unless the stay is granted, that Defendant

will not be substantially harmed, and that the stay will not

harm the public interest. Based on these factors, the stay of

dissolution of the temporary injunction should be granted

After Plaintiffs file their notice of appeal and post a

No. Al10-922

STATE OF MINNESOTA

[IN COURT OF APPEALS

National Football League

THE NATIGNAL FOOTBALL LEAGUE'S MOTION

TO DISMISS THE APPEAL AS MOOT

lO: Clerk of Appellate Courts; Appellants above-named and

their attomeys, Peter Ginsberg, Ginsberg & Burgos PLLC,

12 East 49th Street, 30th Floor, New York, NY 10017; and

Steven Rau, Flynn, Gaskins, Bennett, LLP, 333 South 7th

Street, Minneapolis, MN 55402

Sta

MOTION TO DISMISS THE APPEAL AS MOOT

Final judgment in this case was entered in favor of the

National! Footbal! League (“NFL”) on June 7, 2010, and the

60-day period for appealing that judgment has come and

gone. Now that there is a “final determination of the nghts

of the parties” in this action, Minn. R. Civ. P. 54.01, “there is

no injury that [this] [C]ourt can redress” in connection with

the instant appeal from the district court's injunction order,

City of West St. Paul v. Krengel, 748 N.W.2d 333, 338

(Minn. Ct. App. 2008). The NFL thus respectfully requests,

pursuant to Rule 127 of the Minnesota Rules of Appellate

Procedure, that this Court dismiss the above-captioned appeal

and vacate the district court's stay order “for jack of

justiciability.” Jd.

STATEMENT OF THE CASE

As discussed in full detail in the NFL's merits brief on

appeal, this case is about two professional football players

who admittedly violated the collectively-bargained Policy on

Anabolic Steroids and Related Substances (“Policy”) and

were suspended as a result. The players subsequently

brought suit against the NFL seeking compensatory damages,

punitive damages, and injunctive retief. (A0019-38.)2

After a week-long trial, the court below concluded that

Plaintiffs had “failed to establish success on the merits.”

(Add.027.) In its May 6, 2010 order, it dissolved its prior

temporary injunction against Plaintiffs’ suspensions; it

refused Plaintiffs’ request to enjoin their suspensions

permanently; it denied Plaintiffs’ request for an award of

2 Citations appearing as Add.xxx are to the Appellants’ Addendum:

citations appearing as Axxxx are to the Appellants’ Appendix; and

citations appearing as RAXxxx are to the Respondent's Appendix.

52a

money damages; and it ordered that judgment be entered for

the NFL. (Add.015.)

On May 25, 2010, before the entry of final judgment,

Plaintiffs appealed from the district court’s injunction order

alone. (A0397.) In their notice of appeal, Plaintiffs

specifically indicated that they were relying on Rule

103.03(b) of the Minnesota Rules of Civil Appellate

Procedure (id.), which allows an appeal from an order

denying injunctive relief, Minn. R. Civ. App. P. 103.03(b).

Piaintiffs then moved the district court to stay dissolution of

the temporary injunction pending appeal, and the district

court granted their motion. (A0369-0379.)

The district court entered fina) judgment on June 7,

2010. (RAO061.) In a June 23, 2010 order denying the

NFL's motion to expedite, this Ccurt recognized that the

instant appeal “is taken only from the May 6, 2010 order

denying injunctive relief. The players have not perfected ari

appeal from a final judgment on the merits.” (RAQ0S3-0056

(emphasis added).) Plaintiffs had 60 days from the entry of

final judgment ~ or until August 6, 2010 — to perfect such an

appeal. Minn. R. Civ. App. P. 104.01; see also TA. Schifsky

& Sons v. Bahr Constr. LLC, 773 N.W.2d 783, 788 n.5

(Minn. 2009) (“The 60-day requirement is mandatory.”).

They never did.

ARGUMENT

I. PLAINTIFFS’ APPEAL FROM THE INJUNCTION

ORDER SHOULD BE DISMISSED FOR LACK OF

JSUSTICIABILITY.

“A case is moot if there is no justiciable controversy.”

Krengel, 748 N.W 2d at 338 (citing Kahn v. Griffin, 701

N.W.2d 815, 821 (iinn. 2005)). “Generally, when an event

occurs that makes .. . an award of effective relief impossible,

the appeal should be dismissed as moot.”” Afertins v. Comm 'r

of Natural Res., 758 N.W.2d 329, 334 (Minn. Ct. App. 2008)

S3a

(citing In re Application of Minnegasco, 565 N.W.2d 706,

710 (Minn. 1997)); see also Krengel, 748 N.W.2d at 338

(recognizing that because “[a]ppellate courts ‘decide only

actual controversies and avoid advisory opinions,’ . .. when

there is no injury that a court can redress, the case must be

dismissed for lack of justiciability”) (quoting Jn re

McCaskill, 603 N.W.2d 326, 327 (Minn. 1999)).

The judgment against Plaintiffs on all of their claims

represents a “final determination of the rights of the parties,“

Minn. R. Civ. P. 54.01 (emphasis added), and prevents

Plaintiffs from obtaining permanent injunctive relief, which

would have been available only if Plaintiffs had prevailed on

the merits, see, e.g., Bio-Line, Inc. vy. Burman, 404 N.W.2d

318, 320 (Minn. Ct. App. 1987); Thomas & Betts Corp. v.

Leger, No. A04-260, 2004 WL 2711391, at *25 (Minn. Ct.

App., Nov. 24, 2004) (“In determining whether permanent

injunctive relief is warranted, the district court must first

determine whether the plaintiff has proven its case.”) (Gray

Aff, Ex. A). It would be “impossible” for this Court to issue

“an award of effective relief’ on appeal from the district

court's order refusing to enjoin Plaintiffs’ suspensions,

Mertins, 755 N.W.2d at 334, given the trial court’s

unchallenged judgment against Plaintiffs on the ments of

their claims.

To allow Plaintiffs to proceed with their efforts to

permanently enjoin their suspensions also would undercut the

“[p]ublic policy favor[ing] the finality of judgments and the

ability of parties to rely on court orders.” Nussbaumer vy

Fetrow, 556 N.W.2d 595, 599 (Minn. Ct. App. 1996). The

Minnesota Supreme Court has fong held that a “judgment of

a court of competent jurisdiction, after the expiration of the

time of appeal, cannot be impeached.” Sache v. Wallace, 112

N.W. 386, 387 (Minn. 1907); see also Dieseth v. Calder Mfg.

Co., 147 N.W.2d 100, 103 (Minn. 1966) (holding that even if

a district court decision is wrong, it is still final after the time

for appeal has expired). A decision from this Coun affording

Plaintiffs relief from their suspensions in the face of a fina!

judgment against them would do just that.

A. Minnesota Appellate Courts Have Repeatedly

Granted Motions To Dismiss An Appeal Where,

As Here, There Is An Unchallenged Fina}

Judgment,

Minnesota appellate courts have consistently granted

motions to dismiss an appeal from an order where, as here,

the final judgment has not been appealed. In Stockwalk

Group, Inc. v. Taylor, No. A06-1971, 2007 WL 2417153

(Minn. Ct. App., Aug. 28, 2007) (Gray Aff., Ex. B), for

example, appellants challenged the district court's denial of

their motion to temporarily enjoin respondents-attomeys

from representing an adverse party in an arbitration matter,

After that appeal was filed, an arbitration award was entered

against appellants, “the decision went unchallenged, and the

arbitration award [was] paid in full.” Jd at *2. Respondents

subsequently moved to dismiss the appeal from the

injunction order and this Court granted the motion, holding

that “mootness precludes our consideration” of the

representation issues. /d. at *3.

The Minnesota Supreme Court's decision in Sisio v.

Housing and Redevelopment Authority of Duluth, 104

N.W.2d 529 (Minn. 1960), is also on point. There, the

district court denied plaintiffs’ application for a temporary

injunction and ordered plaintiffs to furnish a surety bond,

providing that if no bond was filed the case would be

dismissed with prejudice. /d. at 530. Plaintiffs appealed the

order denying the injunction and the bond order, but never

filed a surety bond. /d After the case was dismissed with

prejudice and final judgment had been entered against

plaintiffs, the Supreme Court granted defendant's motion to

dismiss the appeals from the injunction and the bond order

because “all issues involved therein are now moot... . ‘here

55a

is nothing for us to review.” Id. at 532 (emphasis added); see

also Sweeney v. Village of Ellsworth, 159 N.W, 1067, 1068

(Minn. 1916) (holding that appeal from order striking

pleading as sham and frivolous “presents a moot question

only, because after the appeal was taken the case came on for

trial in the court below, and was dismissed for want of

prosecution”); Breslaw y. Port Authority of St. Paul, 135

N.W.2d 127, 127 (Minn. 1965) (granting respondent's

motion to dismiss appellant’s challenge to injunction order

given that judgment had been entered and appeilant failed to

“appeal[] from the judgment within the time permitted”).

Because here, as in those cases, there is “nothing for

[this Court] to review" now that final judgment against

Plaintiffs has been entered and the time for appealing that

judgment has expired, Sisto, 104 N.W.2d at 532, this Court

should dismiss Plaintiffs’ appeal from the injunction order as

moot.

B. None Of The Exceptions To The Mootness

Doctrine Applies Here.

While an appeal will not be dismissed if “the issue raised

is capable of repetition yet evading review,” Krengel, 748

N.W.2d at 338, this case does not fit within that “narrow

exception to the mootness rule,” Northern States Power Co.

v. Minnesota Dep't of Transp., Nos. C0-01-1471, C5-01-

1918. 2002 WL 555163, at *2 (Minn. Ct. App., Apr. 16,

2002) (Gray Aff., Ex. C); see also Krengel, 748 N.W.2d at

340 (“[W]e naturally hesitate to make an exception to

mootness ...."). The “capable-of-repetition-yet-evading-

review" exception applies only “if (1) the challenged action

was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be

subjected to the same action again.” Krengel, 748 N.W.2d at

339 (internal quotations and citations omitted).

20a

The challenged injunction order in this case was not “too

short to be fully litigated prior to its cessation or expiration,”

Krengel, 748 N.W.2d at 339 — in fact, the district court

granted Plaintiffs’ motion to stay the dissolution of the prior

injunction against their suspensions pending appeal. The

appeal from the injunction order would have been heard had

Plaintiffs filed an appeal from the fina) judgment. Plaintiffs’

failure to appeal the judgment is all the more remarkable

because this Court in its June 23, 2010 order specifically

alerted Plaintiffs to the fact that they had not yet “perfected

an appeal from a final judgment on the merits.” (RA0OQS3-

0056.)

In Krengel, by contrast, the court carved an exception to

the mootness doctrine because the permanent injunction

expired by its own terms before an appeal from the injunction

could be heard. 748 N.W.2d at 339 (noting that the

permanent injunction’s nine-month lifespan was “too short to

allow the judicial process to reach conclusion”), The

Krengel plaintiff “was unable to obtain appellate review of

the permanent injunction before it expired despite having

made three vigorous efforts to do so.” Id. at 340 (emphasis

added), An exception is unwarranted here, where Plaintiffs

had every ability “to obtain appellate review of the injunction

order,” but made mo “efforts to do so.” Jd.

This also is not a case in which there is “a reasonable

expectation that the same complaining party would be

subjected to the same action again.” Krengel, 748 N.W.2d at

339, There is no reason to expect that Pat and Kevin

Williams would test positive a second time for a substance

banned by the NFL Policy. Moreover, Pat Williams has

stated that he is “seriously consider{ing}” retiring at the end

57a

of this season, when his contract expires? — further

diminishing the chance “that the same complaining party

would be subjected to the same action again.” Krengel, 748

N, W.2d at 339.

Finally, while this Court will “‘decide issues that are

technically moot when the issue is functionally justiciable

and one of public importance and statewide significance,’”

State v. Matthews, 779 N.W.2d 543, 548 (Minn. 2010)

(quoting Jasper v. Comm 'r of Pub. Safety, 642 N.W.2d 435,

439 (Minn. 2002)), this Court already has decided that “[t)his

appeal does not involve issues of statewide importance”

(RAOOSS).

C. Plaintiffs’ Rule 103.04 Argument Is Groundless.

In their Reply Brief, Plaintiffs rely on Rule 103.04 of the

Minnesota Rules of Civil Appellate Procedure in arguing that

this Court has jurisdiction over this appeal despite their

failure to appeal the final judgment. (Appellants’ Reply

Brief, p. 10.) Plaintiffs’ position is unavailing. While Rule

103.04 states that this Court may review any matter that “the

interest of justice may require,” language added to that rule

in 1998 “suggests that the rule should be read narrowly." In

re Welfare MR., No. C4-02-446, 2002 WL 31655025, at *8

(Minn. Ct. App., Nov. 26, 2002) (emphasis added) (declining

to review whether judicial] notice ruling was proper where

appellant failed to object to ruling at trial) (Gray Aff., Ex. D),

The added language provides:

The scope of review afforded may be affected

by whether proper steps have been taken to

preserve issues for review on appeal,

3 ‘Daaaaad' Pat Williams: ‘We've gol to win il this year’, available at

http://www. startribune.com/sports/vikings/

102168439. html?elr=K Arksi8cyaiU9PmP:QiUiD3aPe: Yyc:aUU

58a

including the existence of timely and proper

post-trial motions,

Minn. R. Civ. App. P. 103.04 (emphasis added); see also

Swarthout v. Mutual Serv. Life Jns. Co., 632 N.W.2d 741,

747 n.2 (Minn. Ct. App. 2001) (“While [Rule 103.04] states

that an appellate court may address any issue ‘as the interests

of justice requires[,]’ the 1998 amendment to that rule

requires consideration of whether ‘proper steps have been

taken to preserve issues for review on appeal.”).

Here, where Plaintiffs neglected to appeal the final

judgment even after this Court specifically advised them of

their failure to do so, “proper steps” were nof taken to

“preserve issues for review on appeal.” Minn. R. Civ. App.

P. 103.04. Plaintiffs have cited no case ~— and the NFL is

aware of none — in which a court declined on the basis of

Rule 103.04 to dismiss an appeal that was otherwise moot.4

In fact, recently in Bahr v. Boise Cascade Corp., 766 N.W.2d

910 (Minn. 2009), the Minnesota Supreme Court held that

notwithstanding Rule 103.04, the district court’s denial of

summary judgment was unreviewable “because the district

court's decision at the summary judgment stage that there

was a genuine dispute of fact becomes moot once the jury

reaches a verdict on that issue.” /d at 918; see also City of

North Oaks v. Sarpal, 784 N.W.2d 857, 861 (Minn. Ct. App.

2010) (“Although an appellate court has the authority to

review orders that affect the judgment being appealed under

Minn. R. Civ. App. P. 103.04, the denial of a motion for

summary judgment .. . ‘becomes moot once the jury reaches

4 While the Matthews court, citing Rule 103.04, exercised its

discretion to address “‘technically moot" [ssues “‘of public importance

and statewide significance,"” Matthews, 779 N.W.2d at 549 (quoting

Jasper, 642 W.W.2d at 439), that well-recognized exception to the

mootness doctrine, as discussed above, is inapplicable here.

59a

a verdict on the issue.) (quoting Bahr, 766 N.W.2d at 918).9

Thus, “{although the appeal statutes are liberally construed so

that the right of appeal be not foreclosed, this court cannot

assume jurisdiction where there is none.” /ndep. Sch. Dist

No. 857 v, Seem, 116 N.W.2d 395, 398 (Minn. 1962).

In the end, to allow Plaintiffs to go forward with their

appeal would constitute @ prohibited attack on a final

judgment. See Nussbaumer, 556 N.W.2d at 599 (“Minnesota

law does not permit the collateral attack on 4 judgment valid

on its face.”). Were Plaintiffs successful in obtaining a

reversal of the district court order and an injunction against

their suspensions, the judgment's “final determination of the

rights of the parties,” Minn. R, Civ, P, 54.01, would have no

meaning — devastating the “ability of parties to rely on court

orders,” Nussbaumer, 556 N.W.2d at 599,6 Minnesota's

well-established rule that a “judgment of a court of

competent jurisdiction, after the expiration of the time of

appeal, cannot be impeached,” Sache, 112 N.W. at 387,

5 Moreover, Rule 103.04 states that “[o)n appeal from or review of an

order the appellate courts may review any order affecting the order from

which the appeal is taken and on appeal from a judgment may review any

order involving the merits or affecting the judgment.” Minn. R. Civ.

App. P. 103.04 (emphasis added). It does not, contrary to what Plaintiffs

suggest, state that on appeal from an order an appellate court may review

the judgment affecting the order from which the appeal is taken.

6 Had Plaintiffs appealed the final Judgment, the NFL might have

adopted a different appellate strategy ~ possibly choosing, for example, to

file a notice of related appeal to obtain review of the district court's

earlier decisions in this case. See Minn, R. Civ. App. P. 106. While

Plaintiffs in their Reply Brief fault the NFL for not having taken a “‘cross-

appeal from the trial court's factual and legal finding that it violated

DATWA” (Appellants' Reply Brief, p. 1), the NFL had no reason to

appeal an unchallenged judgment in its favor.

0Va

prevents this Court from entertaining Plaintiffs’ request for

injunctive relief.

il. THE DISTRICT COURT'S STAY ORDER ALSO

SHOULD BE VACATED ON THE SAME

GROUNDS.

As discussed above, the unchallenged final judgment

against Plaintiffs on all of their claims makes it impossible

for them to obtain permanent injunctive relief on appeal. For

all the same reasons, there no longer is any basis for the

district court's decision to stay dissolution of the temporary

injunction pending appeal. At bottom, Plaintiffs are entitled

to neither temporary nor permanent relief from their

suspensions now that there is a final judgment that they have

“failed to establish success on the merits.” (Add,027,)

See Bio-line, 404 N.W.2d at 320 (holding that plaintiffs

could not obtain permanent injunctive relief because they had

not established a “right to such relief at trial); Sanborn M/y.

Co. v. Currie, 500 N.W.2d 161, 165 (Minn. Ct. App. 1993)

(holding that temporary injunctive relief was unavailable to

plaintiff who had “shown no likelihood it will win this

case"). The district court's stay order thus should be vacated

as well,

CONCLUSION

Because the final judgment against Plaintiffs bars them

from obtaining “effective relief,” Mertins, 755 N.W.2d at

334, the NFL respectfully requests that this Court dismiss the

appeal from the district court's May 6, 2010 injunction order

and vacate the district court's stay pending appeal.

DATED september 8, 2010 Respe thully submitted

s/ Joseph G_ Schmitt

Joseph G. Schmitt,

Reg. No, 231447

David H, Wright,

Reg. No, 213895

Peter Ciray,

Reg. No. 25809X

NILAN JOHNSON Lewis P.A

400 One Financial Plaza

120 South Sixth Street

Minneapolis, Minnesota

55402

lelephone: (6) 2) 305-7501

Facsimile: (612) 305-7501

Daniel L. Nash

AKIN GUMP STRAUSS HAUER

& Fetp LLP

1333 New Hampshire

Avenuc, NW

Washington, DC 20036

(202) 887-4000

ATTORNEYS FOR

RESPONDENT

THE NATIONAL

FOOTBALL LEAGUE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.