Six Players Suspended in Diuretic Case
The NFL has announced that it has suspended six players without pay for testing positive for a banned substance.
The suspensions are for four games each.
The players are tailback Deuce McAllister and defensive ends Will Smith and Charles Grant of the New Orleans Saints, defensive tackles Pat Williams and Kevin Williams of the Minnesota Vikings and Houston Texans long snapper Bryan Pittman.
The players reportedly tested positive for a banned diuretic contained in a weight-loss product.
Attorney David Cornwell, who represents several of the players involved in the case, indicated after a recent set of appeal hearings that the independent administrator of the NFL's testing program, John Lombardo, testified he'd known previously that the weight-loss product contained the banned substance but he hadn't informed players of that for fear that other players might use that as a defense for positive tests in unrelated cases.
At least some of the players had maintained in their appeals that they tested positive for the banned diuretic bumetanide, which is on the NFL's list of prohibited substances as a possible masking agent for steroids, after using the weight-loss product StarCaps. The players had contended that the diuretic was not on the product's label and they ingested the banned substance unknowingly. Cornwell had said his clients would not have used StarCaps if they'd been informed that it contained bumetanide.
In general, players are held responsible for any banned substances that they ingest, even unknowingly, under the NFL's policy on steroids and banned performance-enhancing substances.
Atlanta Falcons defensive tackle Grady Jackson reportedly also was among the players who tested positive and had a recent appeal hearing.
The league has asked Jackson to provide more information.
A source on the players' side said at least some of them will take legal action Wednesday and will seek an injunction to remain eligible to play.
Cornwell, who represents the three Saints players, has issued a written statement expressing disappointment with the league's rejection of the players' appeals. Cornwell's statement says:
"We are disappointed.
"Based on the unique circumstances presented in this case, the NFL's decision is inconsistent with the objectives of the steroid policy, Dr. Lombardo's disclosure obligations under the law, and the best interests of NFL players.
"Deuce, Will, and Charles did not try to enhance their performance with steroids, nor did they knowingly expose themselves to the adverse health risks of a diuretic. They took a weight loss supplement that they had every reason to believe was safe. Against the backdrop of the federal government's refusal to require accurate labeling for nutritional supplements and Dr. Lombardo's specific, but undisclosed knowledge that StarCaps contained bumetanide, it is grossly unfair that Deuce, Will, and Charles are the only ones that must bear a burden.
"We will take further action as is appropriate."
The suspensions run through the conclusion of the regular season. players would be eligible to participate in the playoffs if their teams qualify, the league announced.
The suspensions might have to be served during the playoffs if the players receive an injunction but the penalties later are upheld.
"The policy is very clear that the appeal decision is final," Adolpho Birch, the NFL's vice president of law and labor policy, said during a conference call with reporters. "It's binding on all the parties, and that's where we are. Whatever happens beyond that, I guess we'll have to find out."
Birch, who oversees the testing program for the league, would not confirm whether all six of the suspended players had indicated they'd tested positive for bumetanide after using StarCaps.
In rejecting the players' appeals, the league cited the provision of the policy that holds players responsible for any banned substances they ingest, even unknowingly, in a supplement. The league indicated in its written release that Lombardo was not obligated to issue a specific warning to players about StarCaps. According to the league, Lombardo had warned teams and the NFL Players Association that the maker of StarCaps had been added to the league's list of banned supplement-producers.
The league's written statement says:
"The players specifically violated a longstanding provision of the policy relating to the use of diuretics and water pills, which serve as masking agents for steroids and are potentially dangerous to the health of players.
"The policy states that the use of so-called 'blocking' or 'masking' agents, including diuretics and water pills, is prohibited and that a positive test will not be excused because it results from the use of a dietary supplement that unknowingly contained a banned substance. Supplements are not regulated or monitored by the government and players have been warned about the risks of supplement use.
" 'You and you alone are responsible for what goes into your body,' the policy has always stated. 'Claiming that you used only legally available nutritional supplements will not help you in an appeal.... Even if they are bought over-the-counter from a known establishment, there is currently no way to be sure that they contain the ingredients listed on the packaging or have not been tainted with prohibited substances.... If you take these products, you do so AT YOUR OWN RISK! For your own health and success in the league, we strongly encourage you to avoid the use of supplements altogether, or at the very least to be extremely careful about what you choose to take.'
"The appeals process in this matter included close to 30 hours of hearings. NFL Executive Vice President of Labor and League Counsel Jeff Pash heard and decided all of the appeals except for Bryan Pittman's. The appeals officer for Pittman was former NFL Executive Vice President and League Counsel Jay Moyer. Following are key excerpts from Jeff Pash's decision upholding the suspensions:
* Bumetanide, a potent diuretic, has long been a prohibited substance under the policy and is similarly banned by other drug-testing programs. Diuretics are banned for two reasons--first, because they can be used to mask the use of performance-enhancing drugs; and second, because they can pose a threat to player health and safety.
*The policy contains numerous specific warnings about dietary supplements. NFL players received separate advisories regarding supplements.... These included two memos from Dr. John Lombardo (the program's independent administrator) entitled 'Weight Reduction Products,' which were sent to players in July of 2007, and again in July of 2008.
*In addition, two notifications specifically mentioning Star Caps were sent on December 19, 2006. One was sent to the presidents, general managers, and head athletic trainers of all NFL clubs. The second was sent to Stacy Robinson, the NFLPA executive who oversees the Steroid Policy on behalf of the union. The letter to Robinson states that 'Balanced Health Products, which distributes Star Caps, has been added to the list of prohibited dietary supplement companies. Please distribute this information to the agents and players through your normal channels.' In response, Robinson had Balanced Health Products added to the list of banned companies that is maintained on the NFLPA's website.
*(For those players with weight clause bonus provisions in their contracts,) the player specifically agreed not to engage in any 'last-minute weight reduction techniques,' which included 'use of diuretics.'
*There is no question that the policy embodies a collectively bargained rule of strict liability - a rule that players alone are responsible for what is in their bodies; that inadvertent or unknowing use of a prohibited substance will not excuse a positive test; and that supplements are used at a player's own risk.
*With respect to the question of whether a specific warning should have been given regarding Star Caps, the policy does not set forth an obligation to issue specific warnings about specific products and no testimony suggests that the NFL and NFLPA have ever contemplated imposing such a requirement on Dr. Lombardo, who oversees the development of education materials on steroids. In keeping with that responsibility, the NFL, NFLPA, and Dr. Lombardo have emphasized the need for extreme caution in the use of any supplement, including weight reduction products, have established a Hotline for players to call for information regarding supplements, have established a Supplement Certification program with EAS to provide players with supplements that are free of banned substances, and have, in conjunction with reinforcing the strict liability rule, repeatedly warned players about the dangers of unregulated and inaccurately labeled dietary supplements. In the past, players have been suspended for using dietary supplements that contained a banned substance.
*The United States Anti-Doping Agency (USADA) does not issue specific warnings about specific supplements, nor are such warnings issued in other drug testing programs."
December 2, 2008; 5:20 PM ET
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