Amicus Curiae Brief — National Football League v. Williams

Supreme Court, U.S.

pics i E D

No. 09-1380 JUN 14 2010

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

THE NATIONAL FOOTBALL LEAGUE,

) fof So » svete

CLULLONE?T,

L},

KEVIN WILLIAMS AND PAT WILLIAMS.

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE EIGuru CIirncuIT

BRIEF OF MAJOR LEAGUE BASEBALL, MAJOR

LEAGUE SOCCER, L.L.C., THE NATIONAL

BASKETBALL ASSOCIATION, AND THE NATIONAL

HOCKEY LEAGUE AS AMICI CURIAE IN

SUPPORT OF PETITIONER

Howarkpb L. GANZ

Counsel of Record

Neit H. ABRAMSON

CHRISTOPHER L. WILLIAMS

PROSKAUER Rose LLP

1585 Broadway

New York, NY 10036

(212) 969-3000

hganz@proskauer.com

Counsel for Amici Curiae

QUESTION PRESENTED

Whether, when the preemptive effect of Section 301

of the Labor Management Relations Act, 29 U.S.C.

§ 185(a), serves as a substantive defense to a state law

claim rather than as a basis for federal removal

jurisdiction, defenses that require interpretation and

application of a collective bargaining agreement should

be considered in determining whether Section 301

preempts the state law claim?

i

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

INTEREST OF AMICI CURIAE

REASONS FOR GRANTING THE PETITION ..

I. THE EIGHTH CIRCUIT'S DECISION,

BY APPLYING AN INCORRECT

PREEMPTION TEST, THREATENS

THE AMICI’S’ ABILITY TO

MAINTAIN AND ENFORCE LEAGUE-

WIDE DRUG TESTING PROGRAMS

THAT, THROUGH THE PROCESS OF

COLLECTIVE BARGAINING, HAVE

BEEN UNIQUELY DESIGNED TO

KLIMINATE THE USE OF

PERFORMANCE-ENHANCING

DRUGS IN PROFESSIONAL

SPORTS.

A. The Amici’s Collectively-Bargained

Drug Testing Programs Serve The

Important Purpose Of Eliminating

The Use Of Performance-Enhancing

Drugs In Professional Sports And

Require Uniform Application And

Enforcement.

Contents

The Eighth Circuit’s Ruling, By

Departing From Supreme Court

Precedent, Fosters State Law

Interference With The Leagues’

Collectively-Bargained Drug Testing

Programs And Deepens The Conflict

Between Circuit Courts. ........... 12

CONCLUSION ... eeuees eens ness 2]

TABLE OF CITED AUTHORITIES

Page

CASES

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985)

Berda v. CBS Inc.,

881 F.2d 20 (3d Cir. 1989)

Caterpillar, Inc. v. Williams,

482 U.S. 386 (1987)

Fry v. Airline Pilots Ass’n,

88 F.3d 831 (10th Cir. 1996)

Lingle v. Norge Div. of Magic Chef,

486 U.S. 399 (1988)

Local 174, Teamsters, Chauffeurs,

Warehousemen & Helpers of Am. v.

Lucas Flour Co.,

369 U.S. 95 (1962)

NLRB v. ‘Katz,

369 U.S. 736 (1962)

Schacht v. Caterpillar,

503 U.S. 926 (1992)

Smith v. Colgate-Palmolive Co.,

943 F.2d 764 (7th Cir. 1991)

Cited Authorities

Sprewell v. Golden State Warriors,

266 F.3d 979 (9th Cir. 2001)

Williams v. NFL,

582 F.3d 868, 879 (8th Cir. 2009), reh’g and

reh’g en banc denied, 598 F.3d 982 (8th Cir.

2009), petition for cert. filed (May 18, 2010)

ee teers oe ce ae eee 6x wee ee

Williams v. NFL,

598 F.3d 932 (8th Cir. 2009)

Williams v. NFL,

No. 27-CV-08-29778 (Minn. 4th Dist. Ct.

May 6, 2010)

Wood v. Nat’l Basketball Ass’n,

809 F:2d 954 (2d Cir. 1987) .

STATUTES

29 U.S.C. § 185(a) lessee aeek akan

29 U.S.C. § 151 et seq.

Minn. Stat. § 181.938

Minn. Stat. § 181.9388(2)

Minn. Stat. § 181.938(3)(a)(1)

Minn. Stat. § 181.950 et seg. ..

Cited Authorities

Minn. Stat. § 181.951(4)

Minn. Stat. § 181.954 ......

OTHER AUTHORITIES

The Clean Sports Act of 2005, and S. 1334, The

Professional Sports Integrity and

Accountability Act: Hearing Before the

Subcomm. on Commerce, Science, and

Transp., 109th Cong. (2005) .............

The Drug Free Sports Act of 2005, Hearing

Before the Subcomm. on Commerce, Trade,

and Consumer Protection, 109th Cong

CD 6 658 46 44949 0 £80855 C64 bre eE eee e ies

The Drug Free Sports Act of 2005, Hearing

Before the Subcomm. on Commerce, Trade,

and Consumer Protection, 109th Cong. (2005)

(statement of Donald P Garber), available at

http://archives.energycommerce.house.gov/

reparchives/108/Hearings/05192005

hearing1507/Garber.pdf ..............5..

Drugs in Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm.

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008)

Page

1D

15

7

1, 10

5, 1)

Cited Authorities

Drugs in Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Ilearing Before the Subcomm.

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008) (statement of

David J. Stern), available at http://

energycommerce.house.gov/images/stories/

Documents/Hearings/PDF/110-ctcp

hrg.022708.Stern-testimony.pdf ............

Drugs in Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm.

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008) (statement of

Allan H. Selig), available at http://

energycommerce.house.gov/images/stories/

Documents/Hearings/PDF/110-ctcp

hrg.022708.Selig-testimony.pdf ........

Drugs wn Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm.

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008) (statement of

Gary Bettman), available at http://

energycommerce.house.gov/images/stories/

Documents/Hearings/PDF/110-ctep

hrg.022708.Bettman-testimony.pdf .....

Drugs in Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008) (statement of

Donald M. Fehr), available at http:

energycommercc.house.gov/images/stories

Documents/Hearings/PDF/110-ctep

hrg.022708. Fehr-testimony.pdf

Drugs in Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008) (statement o!

G. William Hunter), available at http:/

energycommerce.house.gov/images/stories

Documents/Hearings/PDIF/110-ctcp

hrg.022708.Hunter-testimony.pdf

Drugs in Sports: Compromising the Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm

on Commerce, T'rade, and Consumer

Protection, 110th Cong. (2008) (statement of

Gene Upshaw), available at http:/

energycommerce.house.gov/images/storie:

Documents/Hearings/PDF/110-ctep

hrg.022708.GoodellU pshaw-testimony. pdf

Cited Authorities

Drugs in Sports: Compromising the [Health of

Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm

on Commerce, Trade, and Consumer

Protection, 110th Cong. (2008) (statement of

Paul Kelly), available at http://energy

commerce. house. gov/images/stories

Documents/Hearings/PDEF/110-ctecp

hryg.022708. Kelly-tesitmony.pdf ........

“Major League Baseball's Joint Drug

Prevention and ‘Treatment Program,”

available at http://mlbplayers.mlb.com/pa/pdf

jda.pdf ..

The Mitchell Report: The Illegat Use of Steroids

in Major Leaque Baseball: llearing Before the

H. Comm. on Oversight and Gov't. Reform,

110th Cong. (2008)

“NBA and NKBPA Anti-Drug Program,” available

at http://www.nbpa.org/sites/default/file

ARTICLE®@20AXXI1 1. pdt

“Performance IEnhancing Substances Program

of the NHL,” available at http://www.nhl.com

cbha/2005-CBA. pdt ..

I],

1()

Cited Authorities

Press Release, Joseph R. Biden, Jr., Senate’s

Approval of the International Convention

Against Doping in Sport (July 22, 2008),

available at http://www.votesmart.org/

speech detail.php?se_id=393274&keyword

= &phrase= &contain=

“Report to the Commissioner of Baseball of An

Independent Investigation Into the Iliegal

Use of Steroids and Other Performance-

Enhancing Substances By Players In Major

League Baseball,” available at http://

files.mlb.com/mitchrpt.pdf. ................. 8 -

Restoring Faith in America’s Pastime:

Evaluating Major League Baseball’s Efforts

to Hradicate Steroid Use: Hearing Before the

H. Comm. on Gov't Reform, 109th Cong.

SS Ce te ee cies vo ta tie ee rene oe

Steroids in Sports: Cheating the System and

Gambling Your Health: Hearing Before the

Subcomm. on Commerce, Trade, and

Consumer Protection, 109th Cong. (2005)

Steroid Use in Professional Baseball and Anti-

Doping Issues in Amateur Sports: Hearing

Before the Subcomm. on Consumer Affairs,

Foreign Commerce and Tourism of the S.

Comm. on Commerce, Science and Transp.,

107th Cong. (2002)

( ted A uthorities

Steroid Use in Sports, Part IT: Examining the

National Football League’s Policy on

Anabolic Steroids and Related Substances:

Hearing Before the H. Comm. on Gov't

Reform, 109th Cong. (2005)

Steroid Use in Sports Part lll: Examining the

National Basketball Association’s Steroid

Testing Program: Hearing Before the H.

Comm. on Gov't Refornz, 109th Cong. (2005)

eoeeeveeeeeeeeenereeeseseneervreewereeereewewewreeeree ee ee ee

“Waxman and Davis Joint Statement on Mitchell

Report,” available at http://oversight.

house.gov/images/stories/documents

20071213160659. pdf 9

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.2, Major

League Baseball (“MLB”), Major League Soccer, L.L.C.

(“MLS”), the National Basketball Association (“NBA”),

and the National Hockey League (“NHUL’) (collectively,

the “Amici” or “the Leagues”) respectfully submit this

brief in support of the Petition for a Writ of Certiorari

filed by the National Football League (“NFUL’).’ The

Amici are professional sports leagues with league-wide,

collectively-bargained drug testing programs designed

to eliminate the use of performance-enhancing drugs

by their athletes. These programs are uniformly

designed and administered within the respective

Leagues in order, among other things, to promote public

confidence in the integrity of professional sports and to

ensure that no player or team will obtain an unfair

advantage over his or its competitors.

The Amici have a significant interest in this case

because the Fighth Cireuit’s decision, which denied the

application of federal labor law preemption principles

to Respondents’ state statutory claims challenging the

administration of the NF Us drug testing program, likely

will adversely impact the Amici’s own collectively-

' Counsel of record for all parties received notice at least

10 days prior to the due date of the Amic?’s intention te file this

brief and have consented to its filing. The letters of consent

have been filed with the Clerk. No counsel for a party authored

this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than the Amici, their

members, or their counsel made a monetary contribution to the

preparation or submission of this brief.

”)

bargained drug testing programs and the important

purposes those programs serve.

Specifically, the Eighth Circuit’s ruling that Section

301 of the Labor Management Relations Act, 29 U.S.C.

§ 185(a) (““LMRA”), does not preempt Respondents’ state

statutory claims subjects the Amici’s drug testing

programs to similar challenges under these statutes by

players employed by teams based in Minnesota, and

potentially exposes the Amici to claims under similar

state statutes by players employed by teams based in

other states. Moreover, because the Eighth Circuit’s

ruling — that defenses based on a collective bargaining

agreement may not be considered as part of the Section

301 “ordinary preemption” inquiry — widens the Circuit

split on this issue, the decision further threatens the

uniform enforcement of the Amici’s respective drug

testing programs between and among member teams.

REASONS FOR GRANTING THE PETITION

The Amici urge the Court to grant certiorari in this

case because the rule of Section 301 preemption

adopted by the Eighth Circuit departs from established

Supreme Court precedent, deepens a split within the

Circuits, and potentially subjects the league-wide drug

testing programs of the NFL and the Amici — which

were carefully devcloped through years of collective

bargaining to meet the unique problems presented by

the use of performance-enhancing drugs in their

respective Leagues — to piecemeal modification by the

26 jurisdictions in which the Leagues have member

teams.

3

Although the Minnesota state law claims at issue below

could not be resolved without the interpretation of the

NF Us collectively-bargained testing program, the Kighth

Circuit held that those claims were not preempted

because defenses based on a collective bargaining

agreement “[we]lre not relevant to our Section 301

analysis.” Pet. App. 26a; Williams vu. NFL, 582 F.3d 863,

879 (8th Cir. 2009), reh’g and reh’g en banc denied, 598

F'3d 932 (8th Cir. 2009), petition for cert. filed (May 138,

2010) (09-1380). As a result of the decision, the NF Us drug

testing program could not be applied uniformly to all NFL

players as the collective bargaining parties had intended.

Indeed, because of the Eighth Circuit’s preemption ruling,

the Minnesota state court on remand was permitted to

apply Minnesota state law to enjoin the enforcement of an

arbitrator’s decision that was issued pursuant to the

collective bargaining agreement, and which simply sought

to enforce the terms of the drug testing program as had

been negotiated and agreed upon by the NEL and the

NFL Players Association (“NFLPA”).

In order to prevent unfair competitive advantages

and maintain public confidence in the integrity and

competitive equality of their sports, the NFL and the

Amici must be permitted to operate their collectively-

bargained drug testing programs without state

interference, regardless of whether the relationship

between state law and the program is apparent in the

elements of the eause of action, or in a defense to the

cause of action. When federal removal is not at issue

and, therefore, the principles of “ordinary preemption”

and not “complete preemption” apply, a plaintiff should

not be able to avoid the preemptive effect of Section

301 by “artful” pleading. As this Court has recognized

(but the Eight Circuit did not), the federal policy

4

requiring the uniform interpretation of collective

bargaining agreements is far too important to turn on

how a state cause of action is pled. See Lingle v. Norge

Div. of Magic Chef, 486 U.S. 399, 407-11 (1988). The need

for uniformity is particularly compelling in the context

of the enforcement of the Leagues’ drug testing

programs, which involves players in different states

competing against each other in head-to-head

competition.

Supreme Court review of the Eighth Circuit’s

decision is especially appropriate because the decision

below further exacerbates the conflict between federal

courts of appeals as to whether defenses based on a

collective bargaining agreement should be considered

in connection with the Section 301 preemption analysis

outside of the context of removal. Nearly two decades

ago, this Court declined to exercise its certiorari

jurisdiction in a case involving the same question raised

by the NF Us petition here: “whether .. . a state-law

cause of action is pre-empted under § 301 of the

Labor Management Relations Act by a defense based

on a collective bargaining agreement.” Schacht v

Caterpillar, 503 U.S. 926, 926 (1992). Dissenting from

the denial of certiorari, Justices White and Blackmun

urged the Court to hear the case and resolve the circuit

court conflict as to whether defenses based on a

collective bargaining agreement were to be considered

when determining the preemptive effect of Section 301.

Id. at 926-27.

Subsequent to the Court’s denial of certiorari in

Schacht, the divide among the lower federal courts has

only widened, with the Seventh and Tenth Circuits

5

requiring consideration of defenses and the Third,

Ninth, and, now, Eighth Circuits on the opposite side of

the issue. Compare Smith v. Colgate-Palmolive Co., 943

F.2d 764, 769-71 (7th Cir. 1991), and F'ry v. Airline Pilots

Ass’n, 88 F.3d 831, 838 n.&8 (10th Cir. 1996), with Berda

v. CBS Ince., 881 F.2d 20, 25 (3d Cir. 1989), Sprewell v.

Golden State Warriors, 266 F.3d 979, 991 (9th Cir. 2001),

and Williams, 582 F:3d at 879. It is, accordingly, now

clear that there is a Circuit-based, outcome-

determinative conflict regarding the relevance to the

ordinary preemption analysis of defenses to state law

claims based on collective bargaining agreements. This

conflict means that the preemptive scope of the LMRA

— and the enforceability of the Leagues’ drug testing

programs — depends on the particular jurisdiction in

which a dispute arises or in which the plaintiff chooses

to file suit. This discord and its practical implications

are antithetical to federal labor policy as mandated by

Section 301 and the purposes of the preemption rule.

6

I. THE EIGHTH CIRCUIT’S DECISION, BY

APPLYING AN INCORRECT PREEMPTION

TEST, THREATENS THE AMICPS ABILITY TO

MAINTAIN AND ENFORCE LEAGUE-

WIDE DRUG TESTING PROGRAMS THAT,

THROUGH THE PROCESS OF COLLECTIVE

BARGAINING, HAVE BEEN UNIQUELY

DESIGNED TO ELIMINATE THE USE OF

PERFORMANCE-ENHANCING DRUGS IN

PROFESSIONAL SPORTS.

A. The Amici’s Collectively-Bargained Drug

Testing Programs Serve The Important

Purpose Of Eliminating The Use Of

Performance-Enhancing Drugs In

Professional Sports And Require Uniform

Application And Enforcement.

Congress has recognized that the use of

performance-enhancing drugs by players in professional

sports is an issue of considerable importance that

requires league-wide solutions. Indeed, since only 2002,

Congress has held hearings on this issue on nine

separate occasions and has taken testimony from dozens

of experts, including those closely involved in the

League programs.’ Having been requested to testify

* See Steroid Use in Professional Baseball and Anti-

Doping Issues in Amateur Sports: Hearing Before the Subcomm.

on Consumer Affairs, Foreign Commerce and Tourism of the S.

Comm. on Commerce, Science and Transp., 107th Cong. (2002);

Restoring Faith in America’s Pastime: Evaluating Major

League Baseball’s Efforts to Hradicate Steroid Use: Hearing

Before the H. Comm. on Gov’t Reform, 109th Cong. (2005); The

(Cont'd)

7

about their respective Leagues’ efforts to combat the

use of performance-enhancing substances, the

Commissioners of MLB, MLS, the NBA, and the NHL

each have confirmed that the issue is of critical

importance and implicates the fundamental integrity of

athletic competition.* Likewise, the Executive Directors

(Cont'd)

Clean Sports Act of 2005, and S. 1334, The Professional Sports

Integrity and Accountability Act: Hearing Before the Subcomm.

on Commerce, Science, and Transp., 109th Cong. (2005); The

Drug Free Sports Act of 2005, Hearing Before the Subcomm. on

Commerce, Trade, and Consumer Protection, 109th Cong.

(2005); Sterords in Sports: Cheating the System and Gambling

Your Health: Hearing Before the Subcomm. on Commerce,

Trade, and Consumer Protection, 109th Cong. (2005); Steroid

Use in Sports, Part II: Examining the National Football

League's Policy on Anabolic Steroids and Related Substances:

Hearing Before the H. Comm. on Gov’t Reform, 109th Cong.

(2005); Steroid Use in Sports Part Ill: Examining the National

Basketball Association’s Steroid Testing Program: Hearing

Before the H. Comm. on Gov’t Reform, 109th Cong. (2005); The

Mitchell Report: The Illegal Use of Steroids in Major League

Baseball: Hearing Before the H. Comm. on Oversight and Gov't.

Reform, 110th Cong. (2008); Drugs in Sports: Compromising

the Health of Athletes and Undermining the Integrity of

Competition: Hearing Before the Subcomm. on Commerce,

Trade, and Consumer Protection, 110th Cong. (2008).

3 Drugs in Sports: Compromising the Health of Athletes

and Undermining the Integrity of Competition: Hearing Before

the Subcomm. on Commerce, Trade, and Consumer Protection,

110th Cong. (2008) (statement of David J. Stern), available at

http://energycommerce.house.gov/images/stories/Documents/

Hearings/PDF/110-ctcp-hrg.022708.Stern-testimony.pdf;

(statement of Allan H. Selig), avazlable at http://

energycommerce.house.gov/images/stories/Documents/

(Cont’d)

8

of the Leagues’ respective players associations also

testified before Congress about the significance of this

"1 4

issue.

Senator George Mitchell, in the “Report to the

Commissioner of Baseball of An Independent

Investigation Into the Illegal Use of Steroids and Other

Performance-Enhancing Substances By Players In

(Cont’d)

Hearings/PDF/1 10-ctep-hrg.022708.Selig-testimony.pdf;

(statement of Gary Bettman), available at http://

energycommerce.house.gov/images/stories/Documents/

Hearings/PDF/110-ctep-hrg.022708.Bettman-testimony.pdf;

see also The Drug Free Sports Act of 2005, Hearing Before the

Subcomm. on Commerce, Trade, and Consumer Protection,

109th Cong. (2005) (statement of Donald P Garber), available

at http://archives.energycommerce.house.gov/reparchives/108/

Hearings/05192005hearing1507/Garber. pdf.

* Drugs in Sports: Compromising the Health of Athletes

and Undermining the integrity of Competition: Hearing Before

the Subcomm. on Commerce, Trade, and Consumer Protection,

110th Cong. (2008) (statement of Donald M. Fehr), available at

http://energycommerce. house.gov/images/stories/Documents/

Hearings/PDF/110-etep-hrg.022708.Fehr-testimony.pdf;

(statement of G. William Hunter), available at http://

energycommerce.house.gov/images/stories/Documents/

Hearings/PDF/110-etep-hrg.022708.Hunter-testimony.pdf;

(statement of Gene Upshaw), available at http://energy

commerce.house.gov/images/stories/Documents/Hearings/

PDF/110-ctcp-hrg.022708.GoodellUpshaw-testimony.pdf;

(statement of Paul Kelly), available at http://energy

commerce. house.gov/images/stories/Documents/Hearings/

PDF/110-ctcp-hrg.022708. Kelly-tesitmony.pdf.

Y

Major League Baseball” (the “Mitchell Report”),°

explained why programs eliminating performance

enhancing drugs in professional sports are imperative:

First, steroids, human growth hormone and

similar substances pose significant risks to

those who use them... . Second, beyond the

dangerous effects on players themselves, the

public perception that players in Major

League Baseball use these substances

contributes to their use by young athletes,

who in turn cause themselves great physical

harm. ... Third, the illegal use of anabolic

steroids, human growth hormone, and similar

drugs poses a significant threat to the

integrity of the game of baseball

Finally, ... the illegal use of these substances

by some players is unfair to the majority of

players who do not use them.

senator George Mitchell, Mitchell Report, at 4,

available at http://files.mlb.com/mitchrpt.pdf.

As then-—Senator Joseph Biden summarized in 2008,

“Steroids and performance-enhancing drugs not only

20-month investigation, commissioned by MLB, into the use of

performance-enhancing substances in baseball. As Rep. Henry

Waxman and Rep. Tom Davis stated, the Mitchell Report is “an

important step towards the goal of eliminating the use of

performance-enhancing substances.” “Waxman and Davis Joint

Statement on Mitchell Report,” available at http://

oversight.house.gov/images/stories/documents,

20071213160659.pdf.

10

pose great health risks, but they threaten the

fundamental integrity of sports.” Press Release, Joseph

R. Biden, Jr., Senate’s Approval of the International

Convention Against Doping in Sport (July 22, 2008),

available at http://www.votesmart.org/speech detail.

php?se id=393274&keyword = &phrase= &contain:

Because of the importance of the issue of the use of

performance-enhancing substances in professional

sports, the Amici and their respective player

associations, with the encouragement of Congress,°

have each bargained over and adopted through the

collective bargaining process league-wide drug testing

programs. These comprehensive programs include

extensive lists of banned substances, comprehensive

testing mechanisms, stringent procedures (including

safeguards and appeal rights), and robust enforcement

mechanisms intended to reduce the use of performance-

enhancing substances. Each of the programs is an

intricate system of regulation designed to take into

account and address each League’s unique

circumstances and needs. The parties to the respective

collective bargaining relationships and their experts in

the field of performance-enhancing substances have

developed the details of these programs through

multiple rounds of collective bargaining that have taken

place over many years.’

® See,e.g, The Drug Free Sports Act of 2005, Ilearing Before

the Subcomm. on Commerce, Trade, and Consumer Protection,

109th Cong. 4, 8%, 11 (2005).

’ See “Performance Enhancing Substances Program of the

NHL,” available at http://www.nhl.com/cba/2005-CBA. pdf;

(Cont’d)

A critical element of each Leapue’s drug testing

program is the uniform application and enforcement of

that program across each League. Fach League’

program applies to every player within the I.eague

regardless of the player’s team or its location, and

regardless of the player’s residence. This uniform

application is essential to the Leagues’ operations

Without it, sports leagues would be unable to maintain

any semblance of competitive balance or integrity. But

the Kighth Circuit’s ruling opens the door for an

imbalance, whereby players in one state can use

performance-enhancing substances while players in

other states cannot.

In this way, professional sports leagues, by their

very nature, are fundamentally different from other

industries (even when compared to other multi-state

business organizations). Professional sports leagues

require athletic competition between their member

teams, yet also require a uniform set of standards and

rules to ensure that no single player or team has an

unfair advantage. In no other industry do the employees

of different employers in different states physically

(Cont'd)

“Major League Baseball’s Joint Drug Prevention and Treatment

Program,” available at http://mlbplayers.mlb.com/pa/pdf/

jda.pdf; “NBA and NBPA Anti-Drug Program,” available at

http://www.nbpa.orp/sites/default/files/ARTICLE

MLOXXXIII.pdf; see also The Drug Free Sports Act of 2005

Hearing Before the Subcomm. on Commerce, Trade, and

Consumer Protection, 109th Cong. (statement of Donald P

Garber), available at http://archives.energycommerc:

house.pov/reparchives/108/Hearings/05192005hearing 1507

Garber. pdf

IZ

compete against each other and this circumstance

requires that such employees be governed by rules that

apply across the board to all participants. Indeed, the

collective bargaining relationships between the Leayues

and their respective players associations have carefully

evolved over the decades to reflect the unique

requirements of the professional sports industry and

its “numerous problems with little or no precedent in

standard industrial relations.” Wood v. Nat'l Basketball

Ass'n, $09 F.2d 954, 961 (2d Cir. 1987). The existing

collectively-bargained drug programs in the Leagues,

with their emphasis on uniform enforcement and

application of often complicated rules and procedures,

are the intricately constructed product of this evolution.

B. The Eighth Circuit’s Ruling, By Departing

From Supreme Court Precedent, Fosters

State Law Interference With The Leagues’

Collectively-Bargained Drug Testing

Programs And Deepens The Conflict Between

Circuit Courts.

This Court has emphasized that Section 30]

preemption is necessary to ensure the “uniform

interpretation of collective baryaining apreements” and

‘

to “promote the peaceable consistent resolution of

labor-management disputes.” Lingle, 486 U.S. at 404

Accordingly, “if the resolution of a state-law claim

depends upon the meaning of a collective-bargaining

agreement, the application of state law...is pre-empted

and federal labor law principles ... must be employed

to resolve the dispute.” /d. at 405-06 (emphasis added)

(citations omitted); see also Allis-Chalmers Corp. v

Lueck, 471 U.S. 202, 220 (1985) CT Wihen resolution of a

state-law claim is substantially dependent upon analysis

oi the terms of an agreement made between the parties

in a labor contract, that ciaim must either be treated as

a § 301 claim, or dismissed as pre-empted by federal

labor-contract law.”) (internal citations omitted).

Moreover, Section 301 preemption also prevents states

from intruding into “[t]he ordering and adjusting of

competing interests through a process of free and

voluntary collective bargaining” which “is the keystone

of the federal scheme to promote industrial peace.”

Local 174, Teamsters, Chauffeurs, Warehousemen &

Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 104

(1962).

If the Eighth Circuit had followed the logic and

rationale of Lingle and other Supreme Court

preemption precedent, the Minnesota state law claims

would have been held preempted because the claims

against the NFL cannot be resolved without

interpreting the collective bargaining agreement.

Under the Minnesota Lawful Consumable Products

Act (“LCPA”), Minn. Stat. § 181.938, employers generally

are forbidden from prohibiting employees from using

“lawful consumable products.” Jd. § 181.938(2). This

provision of the statute is in conflict with the Leagues’

drug testing programs because many of the

performance-enhancing substances prohibited by the

Amici’s anti-drug programs are legal with a prescription

and some are available without a prescription at stores

such as GNC. See, e.g., “Major League Baseball’s Joint

Drug Prevention and Treatment Program,” available

at http://mlbplayers.mlb.com/pa/pdf/jda.pdf. If the

preemptive scope of Section 301 does not extend to

14

claims raised under the LCPA, then players on the

Minnesota Twins (MLB), Wild (NHL), Timberwolves

(NBA), or Vikings (NFL) could be permitted to use

these “lawful” substances notwithstanding the

prohibitions in their Leagues’ respective programs -

thereby providing them with an unfair competitive

advantage over players on teams in other states, as to

whom the applicable League drug testing program

would apply in full measure.

Although the LCPA has an exception if the

restriction “relates to a bona fide occupational

requirement and is reasonably related to employment

activities or responsibilities of a particular employee or

group of employees,” Minn. Stat. § 181.938(3)(a)(1), the

application of this exception is clearly dependent upon

the interpretation and application of the Leagues’

collective bargaining agreements. Under the National

Labor Relations Act, 29 U.S.C. § 151 et seq., it is the

Leagues’ collective bargaining agreements — including

their drug testing provisions — that set forth the terms

and conditions of players’ employment and therefore

define the players’ employment activities. See NLRB v.

Katz, 369 U.S. 736 (1962). Accordingly, this provision of

the LCPA requires the state court to interpret the

Leagues’ collective bargaining agreements to determine

whether, if a substance prohibited by such agreements

is a “lawful consumable product,” the restriction

imposed on the use of that “lawful consumable product”

is a bona fide occupational requirement that is

“reasonably related” to the “employment activities” of

the employee. Indeed, there is no way to resolve the

threshold question under the LCPA without interpreting

and applying these collective bargaining agreements.

lo

The Minnesota Drug and Alcohol Testing in the

Workplace Act (““DATWA”), Minn. Stat. § 181.950 et seq.,

also provides employees with certain protections that

may not comport with the Amici’s respective drug

testing programs. For example, the DATWA restricts

random drug testing. Jd. § 181.951(4). While the DATWA

purports to exempt “professional athletes” from that

restriction, the statute’s safe harbor provision applies

only if that random testing is “consistent with the

collective bargaining agreement.” Jd. Thus, in cases

involving random testing, the DATWA itself actually

requires the state court to interpret the parties’

collective bargaining agreement at the threshold and

to determine whether the employer acted consistently

with the collective bargaining agreement’s procedures

and requirements. Accordingly, a suit under the DATWA

effectively becomes “a suit in state court alleging a

violation of a provision in a labor contract” and,

therefore, “must be brought under § 301 and be resolved

by reference to federal law.” Allis-Chalmers Corp.,

471 U.S. at 210.

Further compounding the problem is that

professional sports leagues also are unable to adhere

to the confidentiality provisions of the DATWA, Minn.

Stat. § 181.954, as the Leagues’ drug testing programs

— at the encouragement of Congress — make positive

drug tests and players’ suspensions public, both as a

penalty and a deterrent.

In addition, the DATWA states that an employee

ean only bring a claim under the statute after first

exhausting ‘Ss mandated by the

applicable igreement. This

provision n plication of the

parties’ gri ement in the

resolution of | flere, Respondents’

claims were ugh the grievance

procedure esta r the labor contract

precisely as the parties had intended.

Instead of enfor ult, tne Minnesota state

court, following ren continually enjoined the

enforcement of that tion award upholding the

suspension of R der the terms of the

collective | he trial

of their s

pendence

It

NFL

the mi

with the 1

collective bargaining agreements, as the state ec

proceed!

» €

(Min

and i

both o1 ites trom a

series 0 regulations existing both

separate fron njunction with the [collective

barpall hasis added): see also 1d.

at 3-4, 6, 15, 17-19, t the NFL was

a joint employe) poses of tl

DATWA ba:

NFLPA

Because the | eempt stat

law claims brought DATWA, the

Leagues will be fore reat players in

Minnesota different], ntage of players

on teams in other stat. vely abandon the

enforcement of their ec y-bargained dru

programs in order to a\ ich disadvantag'

This is not a hypothet rde}

uni

applica Late

ina law. As aresult of the Hight}

and the application of Minnesota state lav

Although a | Ourt

proceedings only confirm, Williams, No. 27-CV-08-

29778, at 3-4, 6, 15, 17-19, 21-22 — interpretation of the

collective bargaining agreement was required for

Bpanean ) "Op ~T Y} \ ? »? hye ,< | ° ) i y

aininp apreement May not be Considered 1n Making

18

the preemption determination under Section 301.

Pet. App. 26a; Walliams, 582 F.3d at 879.

he EBighth Circuit conflated the complete

preemption doctrine with ordinary preemption and

therefore premised its decision on a legal principle —

the well-pleaded complaint rule — that is wholly

inapplicable to the ordinary preemption analysis. /d.

The doctrine of complete preemption and its coroilary,

the well-pleaded complaint rule, apply when the question

is whether a complaint that raises only state law claims

nay be removed to federal court. Caterpillar Inc. v.

ums, 482 U.S. 386, 392-93 (1987). Under the

‘e preemption doctrine, if a complaint asserting

ite law claims is well-pled, the case may not be

d based on the defense that interpretation of a

e bargaining agreement is required to resolve

im. Id. Thus, complete preemption is a

‘ional doctrine related to the removability of a

tially filed in state court. Jd. In contrast, ordinary

uption is a substantive defense aimed at the merits

ie asserted state claim and may be invoked in either

| or state court. /d. Ordinary preemption simply

s the primacy of federal law, regardless of the

ir the claim. Jd. at 392.

lhe Eighth Circuit failed to recognize that comple

preemption and ordinary preemption are distinct leg:

concepts that serve completely different functions

ithough the Eighth Circuit declined rehearing en banc,

ives dissented and observed that the panel’s decision

remised on a fundamenta! misunderstanding of “[t]he

procedural distinction between cases involving complete

preemption and ordinary preemption. .. .” Pet. App. 75a;

Williams v. NFL, 598 F.3d 932, 936 (8th Cir. 2009).

19

As a result of this misapplication of complete preemption

when removal was not at issue, the Eighth Circuit

improperly confined its analysis to the allegations of

Respondents’ complaint and categorically ignored the

numerous and significant relationships between the

resolution of the state law claims and the NFLs

collectively-bargained drug program discussed above,

which were asserted as defenses by the NFL.

The Eighth Circuit has now joined the Ninth Circuit

and Third Circuit in holding that an employer’s defenses

relying on a collective bargaining agreement ar:

irrelevant even when the evaluation of those defe:

is critical to resolving the plaintiff’s purported state |:

claims and is unrelated to removal. See Sprewei/

Golden State Warriors, 266 F.3d 979, 991 (9th Cir. 200)

Berda v. CBS Inc., 881 F.2d 20, 25 (8d Cir. 1989). |

contrast, the Seventh and Tenth Circuits ha:

recognized that defenses based on a collecti

bargaining agreement, while irrelevant to th:

jurisdictional question of whether a claim filed in state

court may be removed to federal court (2.e., “complete

preemption”), must be considered when addressing the

substantive defense of ordinary preemption. See Fry v

Airline Pilots Ass’n, 88 F.3d 831, 838 n.8 (10th Cir. 1996);

muh v. Colgate-Palmolive Co., 943 F.2d 764, 769-71 (7th

ir. 1991).

ihe Bight Circuit’s decision widens an already

ntolerable split among the Circuits. ‘The rules of

rdinary preemption under Section 301 continue to vary

from Circuit to Circuit, and now even more so. As a

result, the uniformity and predictability contemplated

by the LMRA — and which is especially significant to

the Amici here — cannot be maintained. The practical

ZU

implications for the Amici’s drug testing programs are

obvious and profound. State law regulation of the

Amici’s drug testing programs may be permissible in

Minnesota against players on the Timberwolves, Wild,

and the ‘Twins but not in Colorado against players on

the Nuggets, Avalanche, and the Rockies — as the Tenth

Circuit holds that a state claim is preempted if the

collective bargaining agreement must be interpreted

and applied to resolve a defense to such a claim, but the

Eighth Circuit holds that the employer’s defenses based

upon a collective bargaining agreement are irrelevant

in that context. This disparity will ultimately plague

sports leagues with inequity and disrupt the cornerstone

of professional sports — competitive balance.

This Court’s intervention is necessary to resolve the

Circuit split and restore the uniformity and

predictability that is essential to federal labor policy and

the uniform administration of the Leagues’ drug

programs.

ZI

CONCLUSION

Based on the foregoing, the Petition for a Writ o!

Certiorari should be granted

Respectfully submitted

HowAkD L. GANZ

Counsel of Record

NEIL H. ABRAMSON

CHRISTOPHER L. WILLIAM

PROSKAUER Rose LLP

1585 Broadway

New York, NY 10036

(212) 969-3000

hganz@proskauer.com

Counsel for Amici Curia