BB Suspended Indefinitely

[Basis4day]

People keep weighing in on what's "right" or "wrong" or even "legal". It has nothing to do with any of those things.

It has to do with the terms of a collectively bargained agreement. That is why the NFL is not going to give in a single millimeter.

Except the NFL is playing with fire. If it's determined by a Federal Judge that one or more terms in the CBA (or a signed contract) violate a worker's rights, then that term of the CBA is void. You can not be held (even by a CBA or contract) to an unfair labour practice....and Browner's case sure looks like an unfair labour practice.

BUT there is nothing in the CBA that should apply to Browner. The issue is that the CBA is misapplied not that it should be voided. Browner won't win a suit based on CBA being unfair. He will win based on not following the CBA

It can be both. That will be one of the potential outcomes should it reach the courts.

 

[A London Hawk]

Has it been mentioned yet that Browner's put in a second appeal?

 

[Polaris]

The idea idea is that you can't enforce provisions in the CBA that are unlawful, even if you fully agree to them. Say for example it stated in the CBA that as a term of employment you must convert to Christianity or commit a murder. Even if the players and the league agreed to do so in the CBA, the courts could rule that that is an unlawful provision of employment and is therefore void. Now obviously those are absurd examples, but the law is a question of degree. Do you see how hypothetical provisions in a CBA could be unenforceable? That is what Browner will be asking the courts to decide. Is it a violation of employment law and an unreasonable term of employment to require players to submit to drug testing provisions when they are no longer an employee of any team and not even employed in this country?

So Browner potentially will file a lawsuit based on unfair labor practices. The courts will decide if the provision he is alleged to have violated in the CBA is inherently unlawful, even if he agreed to them. He still can lose that argument and the provision be valid, but that is what he is asking the court to decide.

Well now you're talking Supreme Court type arguments. If that's the case, see ya in 2037 Brandon when this is finally settled.

Look at the two Williams that played for the Vikings. If you can get a federal judge to agree that you MIGHT win such a case, the judge can place an injunction on the NFL (and the NFL has been forced to accept such injunctions as valid) and suspend the suspension.

 

[Polaris]

Has it been mentioned yet that Browner's put in a second appeal?

Yes. It's essentially a last ditch attempt. IMHO I don't believe Browner or his agent expect to get a hearing, but it makes a lawsuit much stronger if you exhaust all possibilities for administrative relief.

 

[Basis4day]

Has it been mentioned yet that Browner's put in a second appeal?

Maybe? I did hear that this morning on Brock and Danny. Not sure how a second appeal works in relation to staying the enforcement of the suspension.

 

[Polaris]

Has it been mentioned yet that Browner's put in a second appeal?

Maybe? I did hear that this morning on Brock and Danny. Not sure how a second appeal works in relation to staying the enforcement of the suspension.

As I understand it, Browner is still suspended, but it's the last ditch "hail Mary" attempt to essentially get Goodell to overrule his own appeals board. Like I said, I suspect it's a formality, but if you're filing a federal lawsuit it's an important formality.

 

[Tupps]

Even if the two entities are separate and the reporting arm cannot be held accountable, the information being reported on, which it would seem to me is PHI (PHI is any information held by a covered entity which concerns health status, provision of health care, or payment for health care that can be linked to an individual) and it's a big no no to share (or inadvertently expose) PHI.

Do we have any attorneys in the house that can speak to this? It's a stretch for me to speak to this so I should tread lightly.

This information would be protected health information as it was received by an employer from the drug tester (health provider) and relates to the past physical condition of the individual.

However, as far as I know, the NFL is not a "covered entity" pursuant to the HIPAA Privacy rule, and the Privacy Rule would not dictate confidentiality requirements. (If the drug tester released this info, then HIPAA would apply, but not in the case of the Employer releasing the info).

In this case, the ADA would be applicable, as I believe it deals with how an employer can handle the results of a drug test. However, if I remember correctly, (it's been awhile since I dealt with issues like this), the ADA does not protect an employee's privacy in relation to illegal substances. Since weed is still an illegal substance pursuant to federal law, I believe Browner would not have a right to privacy in relation to these disclosures, at least not under the ADA. There may be other laws I forgot or the CBA which would provide this right.

Separate issues, as a lot of posters have already raised, are potential breaches of the CBA, and the NFL's arbitrary and capricious manner in interpreting and enforcing their own administrative rules. I believe Mr. Browner could have a reasonable basis in fact or in law if he decided to proceed with litigation on those issues. Without facts, or a copy of all relevant documents, I could not give a rational opinion however.

Also, hello everyone, long time lurker, first time poster. Washington native, fan since 1990ish. GO HAWKS!

 

[A London Hawk]

http://www.cbssports.com/nfl/writer/jas ... drug-tests

 

[mikeak]

People keep weighing in on what's "right" or "wrong" or even "legal". It has nothing to do with any of those things.

It has to do with the terms of a collectively bargained agreement. That is why the NFL is not going to give in a single millimeter.

Except the NFL is playing with fire. If it's determined by a Federal Judge that one or more terms in the CBA (or a signed contract) violate a worker's rights, then that term of the CBA is void. You can not be held (even by a CBA or contract) to an unfair labour practice....and Browner's case sure looks like an unfair labour practice.

BUT there is nothing in the CBA that should apply to Browner. The issue is that the CBA is misapplied not that it should be voided. Browner won't win a suit based on CBA being unfair. He will win based on not following the CBA

It can be both. That will be one of the potential outcomes should it reach the courts.

Claiming that the drug test isn't lawful is making a case that most every company in the US violates law, it is making a case that Federal Law for some reasons that I don't recall seeing anywhere is unlawful. All because the State of Washington allows pot????

There is nothing in the CBA that will be overturned here. Look I agree that Browner is getting a raw deal. He should not have been on the watch list or whatever we call it any longer. BUT there is nothing wrong with the CBA and there is not a single court that will decide that the CBA in parts should be voided.

There seems to be really good grounds for a lawsuit based on other errors by the NFL.

 

[Polaris]

There is nothing in the CBA that will be overturned here.

I wouldn't be too sure. I could see entire sections of the drug enforcement policy (which is part of the CBA) being ruled in violation of federal labour law.

 

[mikeak]

http://www.cbssports.com/nfl/writer/jason-la-canfora/24380863/browner-files-2nd-appeal-says-he-wasnt-aware-of-missed-drug-tests

This changes EVERYTHING.

If correct then the appeal that was denied was on the outcome of the drug test taken. He said he didn't take anything illegal - the test was not thrown out so the suspension stands.

Completely separate is the appea of the lenght of the suspension or any suspension for that matter

Good link

 

[mikeak]

There is nothing in the CBA that will be overturned here.

I wouldn't be too sure. I could see entire sections of the drug enforcement policy (which is part of the CBA) being ruled in violation of federal labour law.

Could you be any more specific? I don't understand how a federally illegal drug isn't allowed to be tested against.

You are aware that courts in this country have ruled that employeers as private companies are allowed to LEGALLY prohibit their employees to smoke right? We are talking regular cigarettes bought at the store. Companies can test their employees and fire them if they smoke if against company policy.

So please enlighten me what sections are violating federal laws AND are applicable to this case. Pot surely isn't such an item nor is suspensions

 

[Laloosh]

... There seems to be really good grounds for a lawsuit based on other errors by the NFL.

Like allowing him to be added to an NFL roster in 2011 at all? His stage 3 ban was technically already in effect when he signed with Seattle but the league decided to just throw him into stage 3 instead of trying to enforce it then.

 

[Polaris]

There is nothing in the CBA that will be overturned here.

I wouldn't be too sure. I could see entire sections of the drug enforcement policy (which is part of the CBA) being ruled in violation of federal labour law.

Could you be any more specific? I don't understand how a federally illegal drug isn't allowed to be tested against.

You are aware that courts in this country have ruled that employeers as private companies are allowed to LEGALLY prohibit their employees to smoke right? We are talking regular cigarettes bought at the store. Companies can test their employees and fire them if they smoke if against company policy.

So please enlighten me what sections are violating federal laws AND are applicable to this case. Pot surely isn't such an item nor is suspensions

I am pretty sure that forcing a person who is not even employed by you to the terms of a labour contract does constitute an unfair labour practice....and since the CBA allows it, that part of the CBA could be striken by a Federal Judge.

 

[Polaris]

... There seems to be really good grounds for a lawsuit based on other errors by the NFL.

Like allowing him to be added to an NFL roster in 2011 at all? His stage 3 ban was technically already in effect when he signed with Seattle but the league decided to just throw him into stage 3 instead of trying to enforce it then.

At the very least it suggests that the ENFORCEMENT of the CBA w/r/t Browner was capricious at best and malicious at worst.

 

[mikeak]

^ Browners case will be that that part doesn't apply to him since he had not played in the league. He will not even challenge that requirement

The part that would be disputed about that though is that it applies to those that wants to get employeed by the NFL so that would be an interesting discussion. But it wouldn't be the basis for BB lawsuit as he simply would take the much easier route of - I wasn't active on Denver's roster that requirement should never have applied to me and furthermore you never told me

 

[WilsonMVP]

I was going to win a super bowl.... but then i got high

Took me a minute to realize what this was and I almost spit out my Mt Dew. Is there a more fitting song than this for Browner

I was going to get a big paycheck...but then I got high.....

[youtube]thifYDl07IE[/youtube]

 

[Basis4day]

mikeak:

I must not be clear making myself clear in our exchange here. It's not drug testing itself that can be argued as unlawful and unenforceable. It's the manner in which the testing is undertaken. Namely that in the NFL's policy a person can still be held accountable to submit to drug tests by a corporation for which he is not an employee in a country in which he does not live nor work.

 

[mikeak]

^ Browners case will be that that part doesn't apply to him since he had not played in the league. He will not even challenge that requirement

The part that would be disputed about that though is that it applies to those that wants to get employeed by the NFL so that would be an interesting discussion. But it wouldn't be the basis for BB lawsuit as he simply would take the much easier route of - I wasn't active on Denver's roster that requirement should never have applied to me and furthermore you never told me

Per the CBS link I am wrong - should be interesting

 

[CANHawk]

yeah yeah! but I got high... but I got high... but i got high...

Axx's single greatest contribution to this board!



But seriously, being an NFL fan these past few years has made me learn way more about the American legal system than I EVER wanted to know. Thanks Rog...

Ass.