A federal judge in St. Paul is hearing the case today on whether Kevin and Pat Williams, along with three Saints players, will be allowed to play this weekend.
Vikings stars Kevin and Pat Williams are before U.S. Federal Judge Paul Magnuson today to ask to be able to continue playing for the four remaining games of the season.
As soon as the hearing began about 10:30 a.m., Magnuson began asking questions about the nature of the players' agreement on the NFL drug policy.
"What are we doing in court? This is your deal," he asked lawyer Jeff Kessler, who argued on behalf of the NFL Players Association.
Kessler responded that the lawsuit is not about the drug policy. "It's well established that a labor decision should be set aside if it is against public policy," Kessler said.
Magnuson was equally aggressive in his questioning of Dan Nash, the lawyer for the NFL. He asked Nash why it had taken so long for the players to be suspended since Vikings Kevin and Pat Williams and three New Orleans Saints players were tested last summer.
Nash said that the players were given the opportunity to appeal within the NFL. Nash contends that there is no reason for the court hearing because the player's concerns were addressed under the rules established by the league and the players' union.
The players are taking the issue to court because they didn't like the outcome, Nash said.
"The fundamental issue is they are disappointed they lost," Nash said.
Two separate actions regarding the playing status of the two Pro Bowl defensive tackles, who were suspended four games by the NFL on Tuesday for using a banned diuretic, are being heard today.
The NFL seeks to dissolve a temporary restraining order obtained Wednesday by the Williamses that allows them to play.
The NFL Players Association joined in the action and filed a lawsuit to block the suspension of the Williamses and three other players. The union is hoping the judge issues an order allowing the five to play. The NFLPA lawsuit argues the players' careers are "short and precarious so that being denied the opportunity to play in games is an irreparable harm which cannot be compensated with monetary damages."
That suit was filed on behalf of the Williamses, who are not related, and New Orleans Saints players Charles Grant, Deuce McAllister and Will Smith. The five players took a weight-loss supplement called StarCaps. The supplement contained the banned product bumetanide, which was not listed as an ingredient. The players claim the league has known about the presence of bumetanide in StarCaps since 2006 and failed to warn its players.
The NFL, which maintains a list of approved products, has steadfastly claimed it is not obligated to issue warnings about specific products that are not on that list.
The Williamses practiced with the Vikings on Thursday but were not available for comment.
NFL lawyers were able to move a lawsuit filed by the Williamses seeking unspecified damages to federal court. In connection with that suit, the tackles obtained a restraining order Wednesday from Hennepin County District Court Judge Gary Larson. The order allowed the two to return to practice pending a more extensive hearing.
Now the NFL wants Magnuson to set aside Larson's order and keep the players out of the remaining four games. The league rejects the players' claims that the harm to them from the suspensions is greater than that to the NFL.
To the contrary, the players' "concerns about having to serve a four-game suspension are far outweighed by the interest of the National Football League, as well as their fans and the general public, in the effective and consistent enforcement of the [drug] policy," the league's memo said.
The 36-page memo notes the policy on anabolic steroids and related substances was the result of collective bargaining between the NFL and the NFLPA, so legal actions are preempted by the binding arbitration. The NFL policy prohibits steroids, growth hormones and other similar substances, but also blocking or masking agents, including diuretics.
The memo notes the policy clearly states "a positive test will not be excused because it results from the use of a dietary supplement, rather than from the intentional use of a prohibited substance. Players are responsible for what is in their bodies."
Two attachments to the policy also address nutritional supplements, warning players they are not regulated by the government and might not contain the ingredients listed on the packaging, the memo said. Players received a letter from the league and the union warning that if they take supplements, "you do so at your own risk!"
But in the lawsuit filed by the union, the NFLPA argues that the NFL withheld critical information about StarCaps containing bumetanide.
"This failure to disclose and willful concealment was an unconscionable breach of public policy," the lawsuit said.
The lawsuit noted that one of the primary reasons for the drug policy is the potential adverse health effects associated with prohibited substances.
"Had the players been informed that StarCaps contained a banned substance by ... any NFL official, they would not have taken it, would not have risked their health, and would not have been suspended," the lawsuit said.
The union lawsuit also claims the arbitrator in the proceedings against the players -- Jeffrey Pash, the NFL's executive vice president -- was "fatally biased" because of the direct involvement of his subordinate, Adolpho Birch, the league's vice president of law and labor policy. Birch is in charge of overseeing the drug policy.
The union lawsuit does not include Houston Texans long snapper Bryan Pittman, who was also suspended Tuesday. David Cornwell, Pittman's lawyer, told the Associated Press that his client isn't included because his circumstances "differ substantially from the men who used StarCaps."
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