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Star Caps Suit Update - Could Will Smith Avoid Suspension?

Mike Florio of Pro Football Talk wrote an interesting piece on the ongoing saga of the suit stemming from the players who tested positive for a banned substance they claim they unknowingly took while taking a supplement called "Star Caps."  Three Saints players - Charles Grant, Deuce McAllister, and Will Smith - got popped and Smith and Grant ultimately filed a lawsuit, as did some Minnesota Vikings players.  But, Florio has noticed a wrinkle and one that I think is worthy of noting: the CBA provisions they violated expired with the old CBA.  Does that "wipe the slate clean"? (More after the jump.)


Star-divide

I think that's a tricky question.  I don't know what the new CBA says about retroactivity of any provisions, including the banned substances list, which no doubt still exists.  But there was a period of months where there was no banned substances list because there was no CBA.  I have no doubt that Smith's attorneys could argue that the prior CBA is no longer enforceable and that Will Smith cannot be suspended under its provisions and that he cannot be punished for violating the terms of an agreement that is now in place that did not exist when he used Star Caps.  

I don't know that this argument is ironclad.  I have not read either CBA, but it seems Smith may be able to avoid a suspension here.  Considering most of the players who tested positive as a result of using Star Caps are out of the league, the NFL may not consider it worth it to continue to pursue the issue in court.  I have little doubt the Artist Formerly Known as the NFLPA would cry foul over this and does the league really want to pick a fight with the union or "trade association" or whatever the entity is right now over two players who got busted for a minor performance enhancer in a nutritional supplement?  The sensible thing for the NFL, after a very public labor dispute, may be to just let the matter go.  Will Smith was not, as far as we know, shooting horse testosterone into his rear end like Jose Canseco, so is there any real purpose in continuing this?  On the other hand, does the League want to take the position that the lockout and the expiration of the CBA were the equivalent of a plenary indulgence for all past sins?  I suppose we shall find out soon enough.

This FanPost was written by a reader and member of Canal Street Chronicles. It does not necessarily reflect the views of CSC and its staff or editors.

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Very interesting... (The premise, not MF's article.)

If you break a law that no longer exists, can you still be punished for it?

Have they changed the CBA to protect players from StarCaps-gate?

Is there no provision in the new CBA for “StarCaps” and starcaps-like substances?

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 10, 2011 9:30 AM CDT reply actions  

It doesn’t matter what the law is now. When they popped it was illegal. Smith will be suspended. If marijuana ever becomes legal like it should be, the people that broke the law before legalization will still have to serve their time.

by cscmember on Aug 10, 2011 2:55 PM CDT up reply actions   1 recs

But what if their court case is still going on?

(I’m just playing devils advocate… I think he will likely have to serve his suspension.)

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 10, 2011 3:01 PM CDT up reply actions  

They have to finish the due process.

by cscmember on Aug 10, 2011 3:45 PM CDT up reply actions  

Florio is just typing to read his own words

He throws out articles heaped in speculation a lot. It would be great if possible, but I have no doubt Herr Goodell and the league are determined to enforce these suspensions if for no other reason than pure spite after the three years of seemingly endless legal battles and public scrutiny of the BS league “gotcha” system that first started this whole mess. I’m still pissed at how that all went down. Remember, Deuce had the supplement approved by the league a year earlier and then the league became aware that a banned substance later appeared in the mix and didn’t inform the players. It was a trap game meant to make examples of people.

I’m to the point where I just want Smith to miss his four games so we can just finally move on from this. Justice is something only the mega-rich can afford.

"As soon as Tony (Dungy) said we had no chance, I knew we had 'em right where we wanted 'em"--Coach Sean Payton right after Super Bowl XLIV with the Lombardi Trophy firmly in hand. WHO DAT!!

by David "Satch" Kelly on Aug 10, 2011 10:08 AM CDT reply actions   1 recs

FIFY...
Escaping justice is something only the mega-rich can afford.

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 10, 2011 11:02 AM CDT up reply actions  

Will Smith is making over $6M a year. How rich do you need to be to get around taking a banned substance?

"I want to hand this trophy to the MVP of the Super Bowl -- and the MVP of the entire league.''
-- Saints coach Sean Payton, handing the Vince Lombardi Trophy to Drew Brees after Super Bowl 44.

by VAsaintsfan on Aug 11, 2011 8:28 AM CDT up reply actions  

Florio

has just as much credibility
as any author at Bleacher Report! :)

"It's a great day to be great, baby!"

"Here I am, brain the size of a planet,
and they ask me to pick up a piece of paper.
You call that job satisfaction?
'Cause, I don't."

The MUNSTERS of the Midway still suck!

by NorthStarr on Aug 16, 2011 12:06 AM CDT up reply actions  

this whole thing is bs

whats going on with nesbit’s suit? he lost his starting job over it…

"As a Saint fan I watch ‘Gone with the Wind’ just to watch Atlanta burn" -Ralph Malbrough

by DrewBreesManCrush on Aug 10, 2011 10:40 AM CDT reply actions  

He didn’t sue. He stood up like a man(a dumb one) and plead guilty.

by cscmember on Aug 10, 2011 2:56 PM CDT up reply actions  

and then he sued

http://www.aolnews.com/2010/08/12/ex-saint-jamar-nesbit-sues-nfl-over-starcaps-case/

"As a Saint fan I watch ‘Gone with the Wind’ just to watch Atlanta burn" -Ralph Malbrough

by DrewBreesManCrush on Aug 10, 2011 3:31 PM CDT up reply actions  

Thanks for the link. I forgot about that. Damn he was dumb.

by cscmember on Aug 10, 2011 3:47 PM CDT up reply actions  

so if either of the people in my picture to the right actually killed somebody (which, clearly, they did not), but then the law changed to allow people to murder each other….. does that mean they could not be convicted. i very much so doubt it. mike florio is no lawyer.

by hrp on Aug 10, 2011 11:07 AM CDT reply actions  

actually he is a lawyer

"As a Saint fan I watch ‘Gone with the Wind’ just to watch Atlanta burn" -Ralph Malbrough

by DrewBreesManCrush on Aug 10, 2011 12:37 PM CDT up reply actions  

i stand corrected and would like to alter my statement – “mike florio is not a good lawyer”.

by hrp on Aug 10, 2011 1:52 PM CDT up reply actions  

one last fix for ya...

"mike florio is not a good lawyer anything."

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 10, 2011 2:13 PM CDT up reply actions   1 recs

but then the law changed to allow people to murder each other….

If that were to happen, I suspect Casey and OJ would be near the top of most hit lists.

by Drew-Dat on Aug 10, 2011 5:15 PM CDT up reply actions  

To rec this would be in poor taste, but I agree.

Offseason is over!!!!

by BRSaintsFan on Aug 11, 2011 8:05 PM CDT up reply actions  

I do like the way that sounds, but I am going to have to side with the NFL on this one.

There are several players who are currently waiting for reinstatement due violating the league substance abuse policy in the past. Two players specifically are the following:

Johnny Jolly Packers DL: Violated the league substance abuse policy and is suspended indefinitely 7/26/2011

Tanard Jackson Carolina DB: Violated the league substance abuse policy, as a result his return if reinstatement is granted by the NFL, would be no earlier than week 3.

If the NFL grants an exemption to the Star Caps situation, which already was won by the NFL in court, the league would have to automatically reinstate the two players mentioned above if those players wished it.

Floro’s argument that a NEW CBA exists does not hold any water in this situation. It sounds nice, but the reality of the situation dictates differently.

If you make an exemption for the violation of substance abuse policy since it is a new CBA, I for one would think that everyone that has violated the leagues behavior policy would be able to jump into the same category as the druggies.

I understand that the Star Caps case i unique, but to make exception to the policy would open up the flood gates for additional litigation that the league would not want now.

Bottom line: Will Smith, I love you, I fell for you, I think you are in a crappy situation, and I am going to miss you for 4 games.

"I can eat oreos faster than him" Scott Fujita's take on Payton Manning SB44

by jeremysherwin on Aug 10, 2011 11:24 AM CDT reply actions  

I might be wrong on this,

but I think Jolly’s suspension is more about the pending criminal trial on felony charges against him. Also, he was busted with even more codeine again this year. I don’t know that he ever failed an NFL drug test – in other words, I think his suspension is based on the player conduct policy.

by HB-NOLA on Aug 10, 2011 3:40 PM CDT up reply actions  

I do understand where you are comming from.

The premise I understood it to be is that since this is a new CBA anything that happened in the previous CBA does not count or is provided a pardon under the new CBA.

"I can eat oreos faster than him" Scott Fujita's take on Payton Manning SB44

by jeremysherwin on Aug 10, 2011 6:29 PM CDT up reply actions  

In a nutshell,

Jolly’s suspension was handed down during traing camp a year ago and was for the first offense.

He applied for reinstatement after the Super Bowl, and was awaiting a decision, when he got busted again.

"It's a great day to be great, baby!"

"Here I am, brain the size of a planet,
and they ask me to pick up a piece of paper.
You call that job satisfaction?
'Cause, I don't."

The MUNSTERS of the Midway still suck!

by NorthStarr on Aug 16, 2011 12:17 AM CDT up reply actions  

I understand that.

However, Floro uses the argument that what happened in the OLD CBA might not pertain to the new CBA. If that is the case every single suspension, or expulsion could use this argument to fuel their cause.

I am simply saying that will not happen because of the examples above.

"I can eat oreos faster than him" Scott Fujita's take on Payton Manning SB44

by jeremysherwin on Aug 16, 2011 6:08 PM CDT up reply actions  

Plenary indulgence!

Haven’t discussed plenary indulgence in almost a week. Funny it should come up here.

It was good while it lasted.

by MtnExile on Aug 10, 2011 2:24 PM CDT reply actions  

tee hee

same here – imagine that!

Thumbs up, everybody...
For rock and roll!!!!

by Hans Petersen on Aug 10, 2011 9:19 PM CDT up reply actions  

I think everyone may be missing an important point

I say “may” because I didn’t actually read the article (no apologies…it’s Florio). But I would bet that Florio’s contention isn’t that the NFL is going to just give in and let Smith play, but that Smith now has a plausible argument to bring before a court. It could gain him an injunction, if nothing else, before he serves his suspension.

If Smith does bring a court action against the NFL, it would have no effect whatsoever on any other suspensions. Those would have to be adjudicated separately, likely by a separate court, unless the NFLPA brought the case in order to dispute ALL suspensions. In which case, I agree that the NFL might just throw up their hands, say “ah, f*** it,” and hit the reset button.

It was good while it lasted.

by MtnExile on Aug 10, 2011 2:32 PM CDT reply actions  

Hard to believe the league would do that.

I’m sick of this whole mess and just want Smith to miss the first four games and get it over with. The team has been preparing for it and it’s not like Smith is one of the top five pass rushers in the league. I think we’ll do all right without him to start the season.

"As soon as Tony (Dungy) said we had no chance, I knew we had 'em right where we wanted 'em"--Coach Sean Payton right after Super Bowl XLIV with the Lombardi Trophy firmly in hand. WHO DAT!!

by David "Satch" Kelly on Aug 10, 2011 2:37 PM CDT up reply actions  

but Satch

what if he can delay it until he’s 36 or so, and we use it to “platoon” him and have him fresh for the final 12 games of 2017 when we’re capping our dynasty of 6 straight SB titles?

Thumbs up, everybody...
For rock and roll!!!!

by Hans Petersen on Aug 10, 2011 9:21 PM CDT up reply actions  

Sure, that sounds plausible.

:)

"As soon as Tony (Dungy) said we had no chance, I knew we had 'em right where we wanted 'em"--Coach Sean Payton right after Super Bowl XLIV with the Lombardi Trophy firmly in hand. WHO DAT!!

by David "Satch" Kelly on Aug 11, 2011 8:20 AM CDT up reply actions  

whatever happened re: the Williamses in Minnesota and their court case/suspension?

If Pro is the opposite of Con, what is the opposite of Progress? Congress!
-Men's Restroom - House of Representatives, Washington, DC

by Philinwood on Aug 10, 2011 3:02 PM CDT reply actions  

they lost

Now that we have a 2011 season let's win the Superbowl!

by skinnykinney on Aug 11, 2011 12:34 AM CDT up reply actions  

:)

"It's a great day to be great, baby!"

"Here I am, brain the size of a planet,
and they ask me to pick up a piece of paper.
You call that job satisfaction?
'Cause, I don't."

The MUNSTERS of the Midway still suck!

by NorthStarr on Aug 16, 2011 12:20 AM CDT up reply actions  

No way the NFL lets this slide

If anything, they may pursue this more vigorously now. Because the new CBA was drafted while the NFLPA was decertified as a union, they were not able to negotiate certain items, like drug testing policy. I can’t imagine that the league would weaken their bargaining position on drug testing by forgiving/forgetting past infractions.

by HB-NOLA on Aug 10, 2011 3:44 PM CDT reply actions  

The NFL would have notified us now, I'd hope...

Seems unfair to teams to just sort of wait and make a last minute change to the roster/dc…. If we don’t know by preseason week 2, let’s assume they’re not acting on it. B/c what happens if one of the guys gets injured during a pre-season game? Suspend the others, suspend him when he returns??

by CharlieNOLA on Aug 10, 2011 4:31 PM CDT reply actions  

I'm just a Cave Man Lawyer.

This is all much too complex for me to comprehend.

by Drew-Dat on Aug 10, 2011 5:22 PM CDT reply actions  

twyms (c)

"If you ask ME, though, any game without push-ups, hits, burns or noogies is a sissy game" Calvin to Hobbes

by maybetoday on Aug 10, 2011 7:29 PM CDT reply actions  

grrr the copywrite didnt work....sigh

"If you ask ME, though, any game without push-ups, hits, burns or noogies is a sissy game" Calvin to Hobbes

by maybetoday on Aug 10, 2011 7:30 PM CDT up reply actions  

Damn you work fast! You better let me in on that copywrite money. I dont wanna have to wet ya.

by cscmember on Aug 10, 2011 8:28 PM CDT up reply actions  

dont worry

i put your name on the copywrite. merry christmas

"If you ask ME, though, any game without push-ups, hits, burns or noogies is a sissy game" Calvin to Hobbes

by maybetoday on Aug 10, 2011 9:20 PM CDT up reply actions  

You only said that because you know how I feel about Santa. Dont get me worked up at this time of night. (TWYMS)©

by cscmember on Aug 10, 2011 10:00 PM CDT up reply actions  

(C) won't work in the Subject line

© like® will only work in the message body. Go figure!

INGRAMANIA equals LOMBARDI 2012

by cajuncommando58 on Aug 13, 2011 2:00 PM CDT up reply actions  

just like spell check in Firefox and Chrome don’t work in the Subject line either.

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 13, 2011 2:19 PM CDT up reply actions  

Yeah

that’s why if I’m not sure how to spell something I type it in the message body then copy and paste the corrected spelling into the subject line.

INGRAMANIA equals LOMBARDI 2012

by cajuncommando58 on Aug 13, 2011 2:30 PM CDT up reply actions  

me2 :-)

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 13, 2011 3:57 PM CDT up reply actions  

I open my web browser in another tab and type it in.

Something usually comes up like:

Posession – Did you mean possession, dumbass?

Fat, dumb, and happy. Hell, two out of three ain't bad!

I Want To Die In My Sleep Like My Grandpa – Not Screaming and Yelling Like His Passengers.

by Just 'Nother Day on Aug 14, 2011 2:47 AM CDT up reply actions  

lol...

Is that the new Grumpy.com search engine?

"It ain't about how hard you hit, it is about how hard you can get hit and keep moving forward, how much can you take and KEEP MOVING FORWARD. That's how winning is done!" - Rocky

by Dan Kelly on Aug 14, 2011 8:03 AM CDT up reply actions  

Yes it is,

and it’s much better than facing the Grumpy Grammer Police lurking around here!

Fat, dumb, and happy. Hell, two out of three ain't bad!

I Want To Die In My Sleep Like My Grandpa – Not Screaming and Yelling Like His Passengers.

by Just 'Nother Day on Aug 14, 2011 7:04 PM CDT up reply actions  

That's what I do

when I can’t get the spelling even close enough for the spell check to correct.

INGRAMANIA equals LOMBARDI 2012

by cajuncommando58 on Aug 14, 2011 9:40 AM CDT up reply actions  

Is there one for Batman, too?

®

"It's a great day to be great, baby!"

"Here I am, brain the size of a planet,
and they ask me to pick up a piece of paper.
You call that job satisfaction?
'Cause, I don't."

The MUNSTERS of the Midway still suck!

by NorthStarr on Aug 16, 2011 12:25 AM CDT up reply actions  

i doubt that the cba has changed the drug policy

to allow players to take starcaps. Starcaps had some kind of “masking” chemical in it that would mask steroids. Now, the players didn’t know it was in there(which if it isn’t on the label then i don’t think they deserve the suspenion) when they took it, or at least that is what they’re claiming. If they haven’t changed the drug policy and it’s still on the banned list of things to take then nothing is going to change. Just because a judge is replaced by a new one doesn’t mean that all the ppl that the 1st judge sent to jail will be let go. If starcaps aren’t on the banned list then they have a chance, not a very good one imo, but still a chance of not being suspended.

Now that we have a 2011 season let's win the Superbowl!

by skinnykinney on Aug 11, 2011 12:40 AM CDT reply actions  

I think the problem Re; ingredients being on the label

is that some companies will put “proprietary blend” on there to protect from other companies knowing the ingredients and duplicating the product. So, the NFL’s position is that if it’s in your urine test, you’re guilty even if it’s not on the label. The bad thing about this instance is that the NFL knew there was a problem with this product ahead of time but never told the players. They knew players would unknowingly test positive and remained silent which is the lowest of lows especially since these unamed substances could have caused health problems to atheletes.

If Pro is the opposite of Con, what is the opposite of Progress? Congress!
-Men's Restroom - House of Representatives, Washington, DC

by Philinwood on Aug 12, 2011 10:07 AM CDT reply actions  

My main question at this point is

After all the time they spent during the Lock-Out did someone think to address this in the new CBA. IE is the NFL now required to notify players when they know there is a problem with a supplement, whenever they find this out. The drug testing, and penalties are not the problem in itself but rather the shifty appearing way this hold episode was carried out. Also if the NFL is determined to Show their *ss, and uphold the suspensions, then by all means let’s get it over with, and not drag it on any longer with litigation.

INGRAMANIA equals LOMBARDI 2012

by cajuncommando58 on Aug 13, 2011 2:09 PM CDT up reply actions  

The deal is that supplements/herbals are not regulated by the FDA. Since they are not regulated, they don’t have to list their ingredients, nor do they have to include ingredients they purport to have in the supplement. There is no quality control, nor studies proving effectiveness of these products. It’s a big problem in the medical field.

In Breesus' name we play

by Breesus Christ Superstar on Aug 14, 2011 7:52 PM CDT up reply actions  

miketripletttp Mike Triplett

RT @leeweezy8: Is Will smith gonna have to sit out 4 games this year? … NFL still has not announced decision, but its’ still likely.

Liberals shout and cause concern, forget next week while we all burn

by stujo4 on Aug 14, 2011 10:20 PM CDT reply actions  

During the post game show

Bobby Hebert casually mentioned Smith not playing for a while after pre-season, though he did not mention a suspension specifically.

Fat, dumb, and happy. Hell, two out of three ain't bad!

I Want To Die In My Sleep Like My Grandpa – Not Screaming and Yelling Like His Passengers.

by Just 'Nother Day on Aug 15, 2011 4:25 AM CDT up reply actions  

Not a tricky question at all!
the CBA provisions they violated expired with the old CBA.

Doesn’t matter one little bit.
The provisions were in place and active when they were violated.

Gotta consider the source of this.
Florio/PFT.
’Nuff said!

"It's a great day to be great, baby!"

"Here I am, brain the size of a planet,
and they ask me to pick up a piece of paper.
You call that job satisfaction?
'Cause, I don't."

The MUNSTERS of the Midway still suck!

by NorthStarr on Aug 15, 2011 11:58 PM CDT reply actions  

So you’re saying if I did something against the law and that law is no longer a law I still have to pay the price for breaking the old law? That’s what I thought.

There's a fine line between love and hate.

by cscmember on Aug 16, 2011 9:21 AM CDT up reply actions  

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