Although Vikings defensive tackles Kevin and Pat Williams might eventually escape their four-game suspensions, the Minnesota laws that could ultimately save them were not part of the initial lawsuit and instead were late additions to their legal challenges, according to attorneys familiar with the litigation. The initial lawsuit filed on behalf of the players, we’re told, did not include claims under the Minnesota Drug and Alcohol Testing in the Workplace Act, or under the Minnesota Consumable Products Act. Instead, those claims were added only after the case was removed by the league from Minnesota state court to Minnesota federal court. Though this fact has no bearing on the ultimate viability of the claims, it undermines the suggestion by lawyer Peter Ginsburg that the theories arising under Minnesota statutory law formed the nucleus of the lawsuit. “Judge Magnuson kept alive the heart of our case which is that the NFL improperly violated Kevin and Pat’s privacy rights and due process in administering these suspensions,” Ginsberg recently told the Minneapolis Star-Tribune. But the claims weren’t the “heart of the case.” Until, that is, there was no other case left. “The NFL has basically already shown it doesn’t care about state protections for employees,” Ginsberg told Ross Tucker and Jim Miller of Sirius NFL Radio on Saturday. “The NFL has taken a position that it is above the Minnesota legislature, it doesn’t want to listen to what the Minnesota legislature has to say. We now have two judges, one in the state court and one in the federal court, who have told the NFL that it is just wrong, that when [the] Minnesota legislature speaks and says that all employees deserve certain privacy protections and certain due process protections, even the NFL has to listen.” Part of what Ginsberg said above is just not true. The Minnesota court has not addressed the merits of the Williamses’ claims; the Minnesota court merely issued a TRO blocking the imposition of the suspensions pending further proceedings in the case. The case was taken to federal court by the NFL before the Minnesota court could rule on whether the suspensions would be blocked until the litigation is resolved, as the federal court did. Also, Ginsberg’s comments regarding his desire to proceed in state court ignores the fact that, as recently as last week, he was asking Judge Magnuson to keep the case in federal court. Now, Ginsberg is singing a different tune. “We brought this case in state court because we believed the state courts in Minnesota had the most interest in protecting its employees rights,” Ginsberg told the Star-Tribune. “Judge [Magnuson] agrees and now it’s back to state court, which is the forum that the NFL tried to run away from.” So what’s going on here? In our view, Ginsberg is pandering to the Minnesota judge and the Minnesota jury pool. Though it likely will have little or no effect on the question of whether the Minnesota judge and/or the Minnesota jury pool are receptive to the claims, Ginsberg’s tactics will harm his credibility in the eyes of folks who “get it.” Put simply, Ginsberg is now trying to paint his pursuit of claims under the Minnesota statutes as a crusade on behalf of Pat Williams, Kevin Williams, and every other person who works in Minnesota. The reality is that Ginsberg didn’t even know about those laws when he launched this lawsuit. Instead, these Minnesota statutes represent the proverbial found money in an old pair of pants. Again, it doesn’t mean the claims of the employees will fail. But it’s dangerous and disingenuous, in our view, for anyone who strikes oil while “shooting up some food” to later characterize the effort as exploratory drilling.
