Philadelphia Eagles offensive lineman Lane Johnson filed a lawsuit early last month against the NFL and NFL Players Association over his 10-game suspension for failing a drug test.
In his complaint, Johnson identifies several ways in which the league and the union allegedly conspired against him and denied him a fair process.
Johnson claims the positive drug test arose from improper testing and that the NFL exerted undue influence over the administrator of the test. He also alleges the arbitration process during the appeal was a “sham” and that one of the arbitrators had a conflict of interest arising from his association with the law firm that handled the Ray Rice investigation.
Several lawsuits have been brought recently challenging the authority of the NFL, including suits by Tom Brady and Adrian Peterson. However, while those players worked alongside the union, Johnson named the NFLPA as a defendant. He alleges the union showed personal animosity towards him and that it breached its duty of fair representation.
Johnson’s lawsuit is a rare instance of a NFL player suing the NFLPA, although such a claim is not unprecedented. The NFLPA has recently garnered increased scrutiny as the NFL continues to prevail in labor negotiations, and Johnson’s case might provide a new avenue to challenge suspensions and accusations of unfair labor practices.
Johnson initially appealed his 10-game suspension through the collectively bargained appeals process last September, when he argued the drug-testing procedure was violated and that the independent toxicologist he hired to affirm the test results was not given access to any procedure or process from the NFL, resulting in uncertainty over whether the test was done accurately.
Johnson also objected to James Carter presiding as the arbitrator. Johnson stated Carter failed to disclose important conflicts of interest between his law firm, Wilmer Hale LLP, and both the NFL and NFLPA. Johnson’s appeal was denied in October. He proceeded to file unfair labor practice charges against the league and the union with the National Labor Relations Board.
Although he returned from his suspension in December, Johnson maintained he was wronged and he retained counsel to build a case against the NFL and NFLPA.
Johnson now seeks compensation for damages he suffered, or will suffer, as a result of the suspension including lost salary and lost endorsement deals. He also demands to be paid punitive damages for the defendants’ “egregious misconduct.”
Further, Johnson requests that he be removed from heightened drug-testing procedures which apply to prior offenders under league policy.
Johnson will likely face an uphill battle against the defendants, as evidenced by recent NFL players who have challenged the league over suspensions, notably Brady and Peterson.
In both of those cases, the courts showed extreme deference toward the arbitrators. Additionally, to prove the NFL unlawfully suspended him, Johnson must show the arbitration appeal process was fundamentally unfair and so fraudulently conducted that it broke the law. National Football League Management Council v. National Football League Players Association, 820 F.3d 527 (2d Cir. 2016).
While there may be obstacles, Johnson’s complaint does raise several legitimate theories, including a case against a drug-testing process that allegedly denied him basic information and led to an improper result.
He also states that the defendants “deliberately withheld relevant and pertinent information” in order to prevent him from a successful appeal. He further claims that the NFLPA retaliated against him personally because of his public dispute with them over the “poor quality of the NFLPA’s representation.” Johnson ultimately contends the union breached its duty of fair representation.
Johnson’s suit is unique in that very few athletes have sued their union while they are still active players. The NFLPA is designed to bargain on the players’ behalf, and federal labor law generally makes it difficult for union members to prevail in suits against their union over quality of representation — though that has not stopped athletes from trying.
In 2014, Alex Rodriguez sued to overturn his drug-related 162-game ban and named the MLB Players Association as a defendant. Rodriguez alleged the union breached its duty of fair representation by imposing a suspension “without just cause.” Rodriguez’s case proved to be unsuccessful and he eventually dropped the lawsuit. Rodriguez v. Major League Baseball, 2014 WL 114181 (S.D.N.Y. 2014).
In 1985, James Peterson, a Tampa Bay Buccaneer linebacker, sued the NFLPA for breach of fair representation. Peterson v. Kennedy, 771 F.3d 1244 (9th Cir. 1985). He alleged a union representative incorrectly advised him of how to file a league grievance. Peterson lost the case and the court held that even if the facts were true, the standard of wrongdoing that must be shown for a player to maintain a successful claim against his union must rise to a level far beyond mere negligence.
The majority of cases against players’ unions fail, but not all. In 1993, Terry Orr, a Washington Redskins tight end, filed a lawsuit against the NFLPA over the applicability of Virginia labor law. Orr v. National Football League Players’ Association, 1993 WL 604063 (Va. Cir. Ct. 1993).
After several Redskins players refused to pay NFLPA union dues on the basis that the union did not serve their best interests, the players were suspended. An arbitrator ordered the Redskins players to pay their dues, but the team refused and claimed the suspension was a violation of Virginia labor law.
Orr filed a lawsuit against the NFLPA and ultimately prevailed. The court held that a Redskin player’s primary job situs is in Virginia where he spends the majority of his time working. As such, the players are subject to Virginia labor law that holds employers may not require membership in a union as a condition of employment.
While, Johnson’s lawsuit is a rare instance of a NFL player suing the union, it is not unprecedented and could be successful as the NFLPA faces increased scrutiny as a result of failed labor negotiations with the league.
The majority of cases are unsuccessful due to the deference afforded arbitrators and because federal labor law generally makes it difficult for union members to prevail in suits over quality of representation.
Johnson’s case, however, could provide a new avenue for players to challenge suspensions and accusations of unfair labor practices in light of the current labor climate in the NFL.