Conflicting Anti-Doping Laws in Professional Sports: Collective Bargaining Agreements v. State Law Roberta Furst Wolf† Each February, millions of football fans gather to watch the most prestigious competition of the sport. With more than 100 million view- ers,1 more Americans watch the Super Bowl than any other television broadcast.2 The event itself represents the culmination of a sixteen-week season, with the two best teams competing in the event.3 The winning team, considered the best in all of football, receives the coveted Vince Lombardi Trophy,4 bragging rights, and sizeable bonus money.5 The † J.D. Candidate, Seattle University School of Law, 2011; B.A., Communications, University of Washington, 1995. Sincere thanks to Professors Deirdre Bowen and Paula Lustbader, Seattle Uni- versity School of Law; Paul Nordsletten, employment law expert and founder of Tahoma Law PLLC; the Honorable Richard C. Tallman, Ninth Circuit Court of Appeals; and the members of the Seattle University Law Review. Most importantly, a world of thanks to my husband, CPT Joseph Wolf, MD, for his superhuman patience and support. 1. Press Release, The Nielsen Co., Nielsen Issues Annual Report on Super Bowl Advertising and Overall Viewing (Feb. 5, 2009) (on file with author). Approximately 100 million viewers watch the Super Bowl in its entirety, although an estimated 150 million watch at least six minutes of the broadcast. Id. 2. Press Release, The Nielsen Co., Super Bowl XLV Most Viewed Telecast in U.S. Broadcast History (Feb. 7, 2011), available at http://blog.nielsen.com/nielsenwire/media_entertainment/super- bowl-xlv-most-viewed-telecast-in-broadcast-history. Super Bowl XLV, played February 6, 2011, between the Green Bay Packers and the Pittsburgh Steelers drew a record 111 million American viewers, making the event the most watched event in television history. Id. 3. The regular season for the NFL spans seventeen weeks; each team, however, receives one bye week when it does not play. Preseason games generally last an additional four weeks but do not affect a team’s overall season record. Playoff contenders must either win their division by collecting the most regular season wins or obtain a Wild Card slot based on winning percentage. The playoffs themselves consist of three rounds of single-elimination play; winners then compete in the Super Bowl for the overall prize. See NFL, http://www.nfl.com (last visited April 9, 2011). 4. Vince Lombardi (June 11, 1913–Sept. 3, 1970), former head coach of the Green Bay Pack- ers, is widely regarded as the greatest football coach of all time. Upon his death, the trophy was renamed in his honor. The Packers won the first two Super Bowls under his direction. History, Hall of Famers, PACKERS, http://www.packers.com/history/hall-of-famers/lombardi-vince.html (last visited Mar. 31, 2010). 5. NAT’L FOOTBALL LEAGUE MGMT. COUNCIL & NAT’L FOOTBALL LEAGUE PLAYERS ASS’N, NFL COLLECTIVE BARGAINING AGREEMENT 2006–2012 art. XLII (2006) available at http://static.nfl.com/static/content/public/image/cba/nfl-cba-2006-2012.pdf. [hereinafter NFL CBA]. Players receive post-season bonuses for each game played. In 2011, post-season play paid $22,000 for divisional playoffs, $40,000 for conference championship play, and $88,000 for a Super Bowl 1605 1606 Seattle University Law Review [Vol. 34:1605 event also recognizes an individual from the winning team as its Most Valuable Player,6 a man considered the epitome of football and the very best of the best of the game. Imagine watching the awards presentation ceremony, as event sponsors congratulate the winning team and present trophies to the cheers of thousands of screaming fans. Imagine the players shattering dozens of long-held records, all but guaranteeing them spots in the Pro Football Hall of Fame.7 Now imagine that each winning player tested positive for perfor- mance-enhancing drugs, and the League openly allowed them to play without suspensions, fines, or penalties of any kind. Such a scenario may seem far-fetched but could actually result after the Eighth Circuit’s recent decision in Williams v. National Football League on steroid testing in professional sports.8 The circuit upheld a lower-court ruling that allows professional athletes in the National Foot- ball League (NFL), Major League Baseball (MLB), National Hockey League (NHL), and National Basketball Association (NBA) to challenge their doping9 suspensions in state courts and apply favorable state em- ployment law instead of the bargained-for terms specified in their con- tracts.10 The ruling effectively prevents the owners of professional sports teams operating under collective bargaining agreements (CBAs) from enforcing the provisions therein for drug testing.11 For example, the NFL’s CBA specifies that an athlete’s first positive doping test will re- win. Id. The losing team received identical division and conference bonuses, plus $44,000 for a Super Bowl loss. Id. Teams competing in the Wild Card round receive additional bonus money: $22,000 for division winners and $20,000 for the two Wild Card teams. Id. 6. News, Super Bowl, MVP Ballot, NFL, http://www.nfl.com/superbowl/45/mvp-ballot/landing (last visited Feb. 26, 2011). Fans and media members determine the winner of the Super Bowl Most Valuable Player (MVP) Pete Rozelle Trophy (named after a former NFL commissioner). Media votes comprise eighty percent of the vote tally; fan votes account for the remaining twenty percent. Id. 7. Selection Process, PRO FOOTBALL HALL OF FAME, http://www.profootballhof.com/hof/ selectionprocess.aspx (last visited Feb. 26, 2011). Selection to the Hall of Fame requires an eighty percent approval vote on behalf of the forty-four-member selection committee. The Committee uses few set criteria; however, induction requires a minimum five-year retirement from play and enshri- nees must have made “outstanding contributions to professional football.” Id. The Hall inducts a maximum of seven players each year. Id. 8. Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009). 9. Throughout this Note, the author sometimes uses colloquial terms such as “doping” or “juic- ing” as synonyms for unlawful steroid use. 10. See Williams, 582 F.3d at 868. 11. See Michael S. Schmidt, Ruling May Weaken Doping Plans in Pro Sports, N.Y. TIMES, Sept. 18, 2009, at A1, available at http://www.nytimes.com/2009/09/19/sports/football/19doping.ht ml. 2011] Conflicting Anti-Doping Laws in Professional Sports 1607 sult in an automatic four-game suspension without pay.12 But now, be- cause the Eighth Circuit ruled that the terms of the NFL’s CBA conflict with applicable Minnesota state law and that state law controls, the court effectively voided the terms of the CBA, rendering the CBA’s sanctions unlawful.13 Furthermore, similar state laws exist in approximately half of all states,14 forbidding adverse action against an employee as a result of a positive drug test unless: (1) the employee first receives written notice of his right to explain the result; (2) the employee receives notice of his right to a second, confirmatory test; and (3) the employee receives notice of his opportunity to undergo drug treatment and fails or refuses to par- ticipate.15 The Eighth Circuit’s ruling in Williams could render efforts to deter steroid usage in professional sports completely ineffective for two rea- sons. First, compliance with applicable state law requires the “employ- er,” or team owner, to offer the offending player a second, confirmatory test, as well as the opportunity to complete drug treatment.16 Adherence to these requirements could easily span an entire playing season or long- er,17 allowing offenders to continue to play indefinitely without penalty. Second, the circuit’s decision hinders enforcement of the NFL’s CBA agreement in all states where franchise teams play—in and out of the Eighth Circuit—because it prevents uniform application of punishment.18 12. NAT’L FOOTBALL LEAGUE & NAT’L FOOTBALL LEAGUE PLAYERS ASS’N, POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES § 6 (2009) [hereinafter NFL POLICY ON ANABOLIC STEROIDS] (on file with author). 13. Williams, 582 F.3d at 868. 14. Williams involves Minnesota state law, but approximately half of all states have similar protections for employees who fail a drug test. Michael S. Schmidt, In Blow to Antidoping Efforts, Athletes Gain Leeway in Court, N.Y. TIMES, Sept. 29, 2009, at A1. 15. Drug and Alcohol Testing in the Workplace Act, MINN. STAT. ANN. § 181.953(10)(b)(1)– (2) (West 2009); Williams, 582 F.3d at 875. 16. MINN. STAT. ANN. § 181.953(10)(a), (b)(1)–(2). 17. NFL preseason begins in August, regular-season games span from September to December, and post-season play lasts throughout January. The Super Bowl generally occurs in early February. NFL, http://www.nfl.com/schedules (last visited Feb. 26, 2011). The lengths of drug treatment pro- grams vary. For example, in-patient treatment at the Betty Ford Center, an alcohol and drug rehabili- tation program, spans anywhere from one to six months, depending on individual patient needs. Treatment Programs, BETTY FORD CENTER, http://www.bettyfordcenter.org/programs/index.php (last visited Feb. 26, 2011). 18. The Eighth Circuit includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dako- ta, and South Dakota. The decision affects three NFL teams (Minnesota Vikings, Kansas City Chiefs, St. Louis Rams), one NBA team (Minnesota Timberwolves), three MLB teams (Minnesota Twins, Kansas City Royals, St. Louis Cardinals), and two NHL teams (Minnesota Wild and St. Louis Blues). The states, however, also host arena league football, minor league basketball, baseball, and hockey, and one professional women’s basketball team. Although the ruling did not address minor league or women’s professional sports, the reasoning behind the decision suggests its applica- bility to any employee working under a CBA in an Eighth Circuit state.