Cornwell sets the stage

The attorney representing the three Saints players in the StarCaps case talked to Sirius NFL Radio on Thursday about the arguments he will make in the NFL Players Association case, which are expected to be similar arguments for Vikings players Pat and Kevin Williams.

On Thursday, Sirius NFL Radio hosts Adam Schein and John Riggins spoke with attorney David Cornwell, who is representing Saints players Deuce McAllister, Charles Grant and Will Smith. The players were suspended for four games for testing positive for the banned diuretic Bumetanide, which can be used as a masking agent for steroids. The drug was in the dietary supplement Starcaps, but was not listed on the label of ingredients. On Thursday, the NFL Players Association filed a lawsuit to block the suspensions of the three Saints as well as Minnesota Vikings Kevin Williams and Pat Williams. Below are the relevant portions of that transcript, provided by Sirius.

Host Adam Schein: "David, take us through what you're going to present in your case."

David Cornwell: "In November of 2006, an NFL Player tested positive for the diuretic Bumetanide. He claimed that he used StarCaps and that was the source of the diuretic. The NFL then, through their toxicologist, Dr. Finkel, ordered it's lab in Utah to test StarCaps. That investigation indeed confirmed that StarCaps contained this diuretic. The NFL, despite what they said, in the case for the Saints and the Vikings, did not suspend that player. It was the first time that anyone knew StarCaps contained a diuretic because it is not listed on the label. The NFL, through Dr. Lombardo (the administrator of the NFL's steroid policy), did not advise players that StarCaps was a dangerous product. In 2004, Deuce McAllister used the NFL Hotline and in '06 two other players contacted the NFL Hotline. Despite the knowledge that NFL Players were using StarCaps and the knowledge that it contained a prohibited substance, the NFL did not notify NFL Players of the danger of this product. My guys, the Vikings, Grady Jackson, and other players, continued to use StarCaps throughout their careers, some going back earlier than '04. Never tested positive until this year when the steroid test was given on the same day that the players were required to weigh in. They took the pill the night before to make weight then turn around and have to give a urine specimen under the steroid program and they yielded positive tests. Now, our position is that Dr. Lombardo had an absolute duty under the law and pursuant to the steroid policy. He says in the steroid policy, ‘We will make a special effort to warn and educate players about nutritional supplements.' He testified that he did not mention StarCaps to players for two reasons. One, he feared that other players who tested positive for a prohibited substance, who used a product other than StarCaps, would use the fact that he identified StarCaps as a defense in their appeal and, two, he didn't want to be sued by StarCaps. Our position is that Dr. Lombardo has a direct and undeniable obligation to NFL players and that obligation is greater than his concern about his personal liability. So, we believe that the judge will support us in this and it is unfortunate. We wish that the Commissioner had exercised his judgment and decided that this case was one that warranted further review on how they dealt with diuretics and nutritional supplements and that suspensions weren't warranted, but this is what we are confronting and we are committed to fighting."

Host John Riggins: "Have you shared information with the counsel for the Williams case in Minnesota?"

David Cornwell: "We have. Their case was separate and he has made his determination to pursue it, this issue, in a matter that he sees fit. I flew to Washington yesterday and spent time with the union representatives and their counsel and they have done a wonderful job going through the records, the facts. The lawyers worked all night. They sent me the brief in the papers last night at 4 o'clock in the morning. So everybody has pulled out all stops to represent these men and I think the Players Association and counsel has done a wonderful job here."

Adam Schein: "David, you referenced players calling the drug hotline. Where those questions, those phone calls, were they answered? And did the answers fly in the face of ultimately what has transpired in terms of getting information that turned out to be wrong information?"

David Cornwell: "It is another basis of our challenge, Adam. The policy in a number of areas tells players, ‘Do not rely on the product label as being an accurate reflection of the product's ingredients.' That's why the NFL started the hotline. In my hearing, I asked about prior requests from players to the hotline about StarCaps and we found out that, yes, there have been other requests but the Hotline does exactly what the NFL tells players not to do. The hotline reads the product label and that's it."

Adam Schein: "That's what happens when you call the drug hotline?"

David Cornwell: "That's all they did in this case three times, that we can document. So, you know, it's just a comedy of errors that happens not to be funny when you think about the impact on these men, their careers, their reputations and their families."

Adam Schein: "There was one specific report that kind of debunked a little bit of what you were saying before so I just want to get your take on this report that the NFL actually had a letter talking about the diuretic in question that was in StarCaps that was sent to the union. What can you tell us about that?"

David Cornwell: "Classic C.Y.A. This is the first time in the 21-year history of the steroid policy where the National Football League has asserted or relied on this type of notice as being sufficient to players. The notice that the management council sent to the union and the clubs identified Balanced Health Products as the manufacturer of StarCaps and as a banned company. Under the policy the significance of banning a company means that a player can not endorse that company. It does not and has never operated as notice of a specific prohibited substance."

John Riggins: "So basically it is a little bit of subterfuge here, they're trying to mislead the public?"

David Cornwell: "You reached the conclusion as you think is appropriate about their motivation. What I will tell you is Dr. Lombardo sent out notice to players in July of 2007 and he didn't mention the manufacture of Star Caps nor did he tell the players that StarCaps contained this diuretic. If they were so open and notorious with their notification, why did they withhold it in the actual notice to players?"

Adam Schein: "Now with all this all said, do you think you have enough to ultimately prevent these ballplayers in question from being suspended?"

David Cornwell: "You know, like Riggo never predicted an outcome of the game - he just went out and did his best - lawyers, we don't predict outcomes. We just simply commit ourselves to doing our absolute best for the clients and I can tell you that we are committed, we are absolutely committed, to making sure that the judge understands what happened here, and we're prepared to let the chips fall where they may. It's a difficult task to have a decision of this nature overturned by a court, but we think it's worth the effort and the resources to try. Because this is wrong."

Adam Schein: "David, let me give you one theory that's out there. There obviously were leaks. This report was out there a few weeks ago, a Denver reporter broke the story, Jay Glazer from, NFL on FOX, he furthered the story a few weeks ago. If this was kept in-house like it was supposed to, do you think these players would have been suspended?"

David Cornwell: "I have no idea. I am extremely disappointed not only in the leak but in the league's response to the leak because I think it was unfortunate. But I will tell you that once it was out there, I think you know from the reports that I have been very forceful in my objection to this matter and the way that it has unfolded on the record because I think that if we were having this discussion for the first time after the decision that the court and, frankly, the public might dismiss it as sour grapes. But with the leak having happened I determined that it was appropriate to make sure that the public understood the other side of the story. I can't pull out the crystal ball and say what would have happened if something had not happened. I just know these were the cards that we were dealt and we dealt with it in a manner we thought was appropriate."

John Riggins: "David, getting back to the situation you're dealing with here in the federal court. … Is this a situation, you look at the NFL, do you think they're being hypocritical or is this a situation where one hand doesn't know what the other one is doing regarding their drug policy?"

David Cornwell: "Well, let me answer the second part first. Another fact that came out in my hearing, the hearing for the Saints, is that though the NFL Supplement Hotline is portrayed as being an essential element of the steroid policy, Dr. Lombardo, who directs the steroid program and is the independent administrator of the steroid program, has no role with the hotline and has no involvement with it. How can you not have coordination between the two?"

Adam Schein: "That doesn't make any sense."

David Cornwell: "It doesn't make any sense. You're absolutely right. Especially when it operates in such a way that it impacts these men in their pocketbook, in their community, and in their homes with their families. We should have a higher standard on the league's side because, as you know, if the administrator did his job as well as NFL players are required to do their jobs we would not have this hole in the system. Now, what I'm not going to do, John and Adam, is sit here and call people names and things like that, hypocritical or whatever. This is an issue about which we have a strong disagreement. They have their point of view. We have ours. There's a forum within which to resolve it and that's what we are doing. But I don't think calling people names and pointing fingers, it doesn't add anything to the process so I don't think it's productive."

Adam Schein: "David, before we let you go, Associated Press had a list of names, six names, to be the next executive director of the Players Association. Your name was on it. Are you interested in the job? Are you in the mix?"

David Cornwall: "Now I feel like a politician. I will tell you that yes I am a candidate and I'm very interested and committed to the opportunity but there is a selection process in place through Raleigh partners and the executive committee of the player reps. So I am just going to decline any further comment and just defer to the selection process but I appreciate you mentioning it and I am honored to be considered."

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