In a legal brief submitted to the NFL on Sunday, Saints running back Deuce McAllister and defensive ends Charles Grant and Will Smith make their case for avoiding discipline under the league’s policy regarding anabolic steroids and related substances.

Per a source with knowledge of the arguments, the Saints players have focused primarily on the fact that Dr. John Lombardo, the administrator of the steroids policy, had actual knowledge that StarCaps had been spiked with Bumetanide, a potent medication available only by prescription, and that Dr. Lombardo had failed to warn the league’s players regarding the presence of Bumetanide in StarCaps.

The league learned that StarCaps contained Bumetanide after a player who tested positive for the substance said he had taken StarCaps.  Dr. Brian Finkle, the consulting toxicologist for the steroids policy, testified at last month’s hearing that he thereafter requested an investigation into StarCaps. 

The investigation revealed that StarCaps contains Bumetanide.

Dr. Finkle also testified that he was concerned about the presence of Bumetanide in StarCaps, and that he had shared his concerns with Dr. Lombardo.  Dr. Finkle testified that his final discussion with Dr. Lombardo centered on the best ways for communicating the information to players.

Ultimately, Dr. Lombardo opted to issue a memo to the players warning them generally about weight loss reduction products, without specifically mentioning StarCaps.  Dr. Lombardo testified that, if StarCaps had been specifically mentioned, players would later claim that other supplements later determined to contain banned substances should have been mentioned as well.

In this specific case, however, it’s undisputed that Dr. Lombardo knew that StarCaps contains a prescription-only substance that NFL players are prohibited from taking.  Surely, the memorandum could have been worded in a way that would have allowed Dr. Lombardo to specifically identify StarCaps as a product that secretly contains a banned substance while explaining generally that there might be other supplements that have been spiked with banned substances about which the league currently isn’t aware.

The Saints players also tackle the notion of “strict liability” as it relates to the presence of banned substances in their bodies.  The players claim that the phenomenon is more accurately described as “assumption of the risk,” since the player who takes a product in reliance upon the truthfulness of its label is taking a chance that the product contains something that isn’t listed, and that he’ll bear the consequences via a four-game suspension.  In this case, the players claim that the league was in a superior position to apprise them of the true risks they were assuming by taking StarCaps, but failed to do so.

Prior media reports have focused on the “Hotline” that the league makes available to players who have questions about certain supplements.  We’re told that the Saints players contend in their brief that the Hotline merely recites for the players the information contained on a given product’s label, and that Will Smith testified that he called the Hotline regarding StarCaps, and was told nothing about the presence of Bumetanide in the product. 

Although the steroids policy and its appendices clearly explain to players the general risks of taking over-the-counter supplements, the fact that Dr. Lombardo specifically knew that StarCaps had been spiked with a drug available only by prescription seems to make this case different from the usual situation of a player relying erroneously on the accuracy of a product label.  Here, the NFL through its agents and/or employees knew that the label on the StarCaps product wasn’t accurate, but didn’t share that information with the players or their union.

Giving the players who ingested StarCaps a pass on this basis wouldn’t create a dangerous precedent for the league, in our view.  The rule will continue to be that the players assume the risk that over-the-counter products not on the NFL’s approved list of supplements might contain a banned substance.  The only exception will be that, if the NFL has actual knowledge that a supposedly legal supplement has been illegally spiked with a banned substance, the league won’t be permitted to suspend players unless the league has specifically warned the players and/or the union about the supplement in question.

Similar appeals are pending involving Vikings defensive tackles Pat and Kevin Williams, Falcons defensive tackle Grady Jackson, and Texans long snapper Bryan Pittman.