The case involving Pat and Kevin Williams may end up being one of the most significant sports law cases in recent memory. While the NFL may have won the short term battle, the NFL maybe positioned for a long term war of having to navigate a patchwork of state labor laws. This article looks at what might become an issue for the NFL’s substance abuse policy come November.
The NFL suspended the Williams and some New Orleans Saints players after they tested positive for a banned substance. The players filed a federal district court action seeking to block the punishments. The court dismissed the players’ federal law claims remanded the Williams’ Minnesota state law claims to Minnesota state court. In refusing to dismiss the Williams’ state laws claims the federal court rejected the NFL’s argument that the collective bargaining agreement displaced individual state laws regarding employment. Essentially, the federal court told the NFL that players retain the rights granted to them under individual state statutes and those rights continue to exist despite conflicting policies that exist in the collective bargaining agreement. Enter, California, the state that appears to be one voter initiative from the legalization of marijuana up to one ounce.
How does legalization in California affect the NFL’s substance abuse policy? Well, California prohibits an employer from suspending an employee for participating in lawful conduct during non-working hours away from the employers premises. See Cal. Labor Code § 96, (k). While California’s law is very broad, the majority of states provide protections to off duty employees who smoke tobacco or consume alcohol. However, a minority of states have laws comparable to California and put significant restraints on an employers ability to discipline an employee for use of legal products. These states specifically prohibit employers from disciplining employees for using “lawfully consumable products” without limitation to what that product it is. California and these minority states are home to nine NFL franchises. It would seem that if the ballot initiative passes, players from the 49ers, Raiders and Chargers could legally smoke marijuana and the NFL would be prohibited from disciplining them under the collective bargaining agreement’s substance abuse policy.
However, it should be noted, that while California may legalize marijuana in the immediate future, marijuana possession in any amount will continue to be illegal under federal law for the foreseeable future. But, the federal government will most likely adopt a hands off approach and agree not to enforce the federal law within the state’s borders if the state behaves itself. This is the current approach the Obama administration has taken with respect to state’s that authorize medical marijuana.
Which really begs the question. If recreational marijuana possession is allowable under state law and is not being prosecuted under federal law, can the recreational consumption of marijuana really be considered unlawful conduct under California’s employment statute? No one knows the answer to this question. But at least it makes the prospect of becoming a Raider slightly less unattractive.
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 For a full discussion see Ann L. Rives, You’re not the Boss of me, 74 GWLR 553 (2006).
 Minnesota, Minn. Stat. § 181.938, subd. (2) (2008); See also Colorado Rev. Stat. § 24-34-402.5(1) (2008); New York Lab. Law § 201-d(2) (McKinney 2008); North Dakota Cent. Code §§ 14-02.4-01 to -03 (2008).
 Landing a job at the Department of Justice is incredibly difficult. No one works for the DOJ with the hopes that they can prosecute marijuana possession of under one ounce.
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