Williams v. National Football League

In these consolidated appeals, the National Football League (NFL), Dr. John Lombardo, Independent Administrator of the Policy on Anabolic Steroids and Related Substances, and Adolpho Birch, the NFL’s Vice President of Law and Labor Policy, appeal the district court’s 1 order, concluding that the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings (collectively, “the Players”) are not preempted by section 301 of the Labor Management Relations Act (“section 301” or “LMRA”), 29 U.S.C. § 185. The Players cross-appeal the district court’s order concluding that their Minnesota common law claims are preempted by section 301. In addition, the National Football League Players Association (the “Union”), the certified collective bargaining representative of all NFL players, appeals the district court’s order confirming the arbitration awards which upheld the Players’ suspensions. We affirm in all respects.

I.

The NFL is an unincorporated association of member clubs which own and operate professional football teams. The NFL promotes, organizes, and regulates professional football in the United States. Players in the NFL enter into a contract with a member club, not the NFL. NFL Players Association, NFL Collective Bargaining Agreement 2006-2012, App. C at 248 (2006) [hereinafter CBA]. On March 8, 2006, the National Football League Management Council (NFLMC), which is the sole and exclusive bargaining agent of the member clubs, and the Union entered into the NFL Collecting Bargaining Agreement 2006-2012 (the “CBA”). The CBA expressly incorporates the Policy on Anabolic Steroids and Related Substances (the “Policy”). 2 Id. art. XLIV, § 6(b). The CBA provides that “all players, Clubs, the [Union], the NFL and the [NFLMC] will be bound hereby.” Id. art. II, § 1.

The Policy “is conducted under the auspices of the [NFLMC].” NFL Players Association, National Football League Policy on Anabolic Steroids and Related Substances, § 2 (2008) [hereinafter Policy]. It is “directed” by Dr. Lombardo as “Independent Administrator.” Id. The Policy also provides for a “Consulting Toxicologist,” Dr. Bryan Finkle. Id. The Policy bans NFL players from using a number of “Prohibited Substance[s],” including “ ‘blocking’ or ‘masking’ agents[,]” such as “diuretics or water pills, which have been used in the past by some players to reach an assigned weight.” Id. § 8. The Policy addresses the consequences of a player’s “[u]nknowing [a]dministration of [prohibited [s]ubstances.” Id. § 3(E). It adopts a rule of strict liability under which “[p]layers are responsible for what is in their bodies,” and explains that “a positive test result will not be excused because a player was unaware he was taking a Prohibited Substance.” Id. Section eight of the Policy, entitled “Masking Agents and Supplements,” states that “a positive test result will not be excused because it results from the use of a dietary supplement, rather than from intentional use of a Prohibited Substance.” Id. § 8.

*869 “Players with a confirmed positive test result will be subject to discipline by the Commissioner as outlined in the Policy....” Id § 6. “The first time a player violates this Policy by testing positive [for a banned substance] ... he will be suspended without pay for a minimum of four regular and/or postseason games.” Id. Players subject to disciplinary action may appeal to an arbitrator, who is “either the Commissioner or his designee,” and whose decision “eonstitute[s] a full, final, and complete disposition of the appeal” that is “binding on all parties.” Id. § 10.

Appendix F to the Policy, a joint letter from the Union and the NFL entitled “Use of Supplements,” warns that, because dietary “supplements are not regulated ... by the government,” there is “no way to be sure” that supplements “contain the ingredients listed on the paekaging[.]” Id. App. F. The letter “strongly encourage[s] [players] to avoid the use of supplements altogether,” and warns that, “if you take these products, you do so AT YOUR OWN RISK!” Id. The letter advises that “several players have been suspended even though their positive test result may have been due to the use of a supplement” and that “if you test positive or otherwise violate the Policy, you will be suspended” because “[y]ou and you alone are responsible for what goes into your body.” Id. Appendix G to the Policy, entitled “Supplements,” is a memorandum from Dr. Lombardo which states, “If you take supplements that contain a substance that violates the [P]olicy it will subject you to discipline!,]” and, “[m]ore importantly, you run the risk of harmful health effects associated with their use.” Id. App. G.

Players may contact the “NFL Dietary Supplement Hotline” to obtain “confidential and accurate information about these products, including their ingredients, effects!,] and adverse reactions.” (No. 09-2249, Defs.-Appellees’ Supp.App. 5.) The memorandum announcing the hotline provides: “Although we strongly discourage the use of supplements for many reasons, we understand that an informed decision is the best one.” (Id.) The memorandum goes on to caution players, stating, “You and you alone are still responsible for what goes into your body. Using the Hotline will not excuse a positive test result.” (Id.)

In 2006, several NFL players tested positive for bumetanide, 3 a prescription diuretic and masking agent that is banned under the Policy. Policy App. A(II)(A). When Dr. Lombardo was alerted to a possible connection between the positive results for bumetanide and StarCaps, a dietary supplement, he informed Dr. Finkle. The StarCaps label does not disclose bumetanide as an ingredient. Dr. Finkle asked Dennis Crouch, Director of the Sports Medicine Research Testing Laboratory, to analyze StarCaps. On November 14, 2006, Crouch emailed Dr. Finkle and Dr. Lombardo, informing them that Star-Caps contained bumetanide. Birch was also made aware of this.

On December 19, 2006, the NFLMC sent a memorandum to the presidents, general managers, and head athletic trainers of all NFL teams entitled “Dietary Supplement Endorsement Prohibition.” (Id. at 6.) The memorandum provides: “Effective immediately, please be advised that Balanced Health Products, which distributes StarCaps, has been added to *870 the list of companies with which player endorsements or other business relationships are prohibited.” (Id.) The memorandum does not state StarCaps was banned under the Policy, that StarCaps contained bumetanide, or that StarCaps contained any banned substance. (See id.)

On December 20, 2006, Stacy Robinson, the Union’s Director of Player Development, sent a memorandum to all NFL agents. (Id. at 7.) The memorandum states: “Please be advised that effective immediately Balanced Health Products, which distributes StarCaps, has been added to the list of prohibited dietary supplement companies. Players are prohibited from participating in any endorsement agreements with this company or using any of their products.” (Id.)

Dr. Lombardo did not refer any player who tested positive for bumetanide in 2006 for discipline. Sometime in late 2006 or 2007, Birch communicated with Dr. Lombardo about Dr. Lombardo’s duties under the Policy. Birch informed Dr. Lombardo that if a player tested positive for a banned substance then, assuming the player had no therapeutic reason to be taking the banned substance, the player must be referred to the NFL for discipline.

In July and August 2008, players in the NFL submitted to random testing for steroids and other substances in accordance with the Policy. In total, five players— Kevin Williams and Pat Williams of the Minnesota Vikings, and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints — tested positive for bumetanide. In late September and early October 2008, all of the players were advised by letter that their positive results were a violation of the Policy and that a suspension without pay of four games was being imposed for the violations. Pursuant to the Policy, all five players appealed their suspensions, and their appeals were consolidated.

Beginning on October 23, 2008, Jeffrey Pash, Vice President and General Counsel of the NFL, met with representatives of the Vikings three times “in the context of what [he] understood to be ... threats of litigation” arising out of the suspensions and providing legal advice. (Id. at 234.) Although “at the very first” Pash did not know that Pat Williams and Kevin Williams were involved, he learned of this via letters from Peter R. Ginsberg, the Players’ counsel. (Id.) On October 30, 2008, Ginsberg contacted Pash and Birch via letter. In the letter, Ginsberg acknowledges that “several veteran NFL players recently have tested positive for a banned diuretic during random League-sponsored drug testing.” (Id. at 23.) Ginsberg states that “we believe [the current NFL testing procedure] is unfair and violative of the players’ fundamental and guaranteed rights....” (Id.) Ginsberg notes that three of his clients have “clinical weight problems,” two of whom have had to add “weight clauses into their contracts.” (Id. at 23-24.) He also identifies “this [a]s a further complicating factor since a person who has a weight condition falls within a protected class” under the Americans with Disabilities Act. 4 (Id. at 24 n. 1.) Ginsberg suggests that the NFL should employ a new drug test procedure, including the addition of an alternative test. 5 (Id. at 24-25.) Ginsberg concludes *871 by stating, “We appreciate your consideration of this correspondence and hope that appropriate parties can arrange to meet with the Commissioner and you in advance of a hearing regarding the proposed punishment of the players involved.” (Id. at 26.)

Pash had several discussions with Ginsberg, including a telephone conversation on November 3, 2008, and at least one meeting. (Id. at 235, 238.) On November 7, 2008, Ginsberg again contacted Pash via letter. (Id. at 28-30.) The letter: (1) answers Pash’s request for information with regard to the Dilute Sample Reflex Test, (2) requests the NFL administrative record regarding Ginsberg’s clients, (3) notes Ginsberg’s “concern[ ] that the laboratory used by the NFL may not have all the documents we need in order to perform a complete evaluation of the tests” which will be necessary “if a hearing ultimately is necessary [and] that any further delay in receiving the administrative record will require us to seek to adjourn the hearing,” and (4) includes an article which Ginsberg characterizes as demonstrating “that the sports world seems to be in the process of reevaluating the breadth of banned substances considered to be ‘masking agents.’ ” (Id. at 28.) Ginsberg concludes by requesting that “[i]f there is any medical indication that the substance allegedly involved with my clients, in the amounts detected, presents any objective medical concern, we hope that the NFL will provide such information in advance of the hearing.” (Id. at 29.)

Between November 10 and 13, 2008, Roger Goodell, the Commissioner of the NFL (“the Commissioner”), designated Pash as the Hearing Officer for the five players’ appeals of their suspensions. (Id. at 239.) Also, in that same time period, Pash learned that StarCaps contained bumetanide. (Id. at 237.) The arbitration hearing took place on November 20, 2008. Each player testified that he was taking StarCaps around the time of his positive bumetanide test and that he did not know that StarCaps contained bumetanide. The players admitted that they were aware of the warnings regarding supplements, the supplement hotline, and the Policy’s rule that each player is responsible for what is in his body. However, the players argued that their positive results should be excused because Dr. Lombardo and the NFL knew, as of November 2006, that at least some StarCaps capsules contained bumetanide — an undisclosed banned substance — and did not specifically advise NFL players of this fact. After the hearing but before issuing his decisions, Pash communicated with the Commissioner regarding “the threat of litigation that [Pash] thought hung over these proceedings.” (Id. at 239.)

In decisions dated December 2, 2008, Pash determined that the language of the Policy required that the suspensions of all five players be upheld. As arbitrator, he observed:

Notwithstanding the rale of strict liability, each player contends that his violation should be excused because the NFL and Dr. Lombardo were aware that StarCaps contained an undisclosed banned substance, bumetanide, but did not specifically advise NFL players of this fact. The players do not contend that the NFL, [the Union,] or Dr. Lom *872 bardo is obligated to test supplements for banned substances and inform players of the result of those tests. But where, as here, the testing process leads to specific information about a specific product, the players argue that the league and Dr. Lombardo have a duty to inform NFL players of the specific threat of the specific product.... [T]hey contend that where specific evidence is available about a particular product, a specific warning is required, and that the failure to extend such a warning should excuse any violation of the Policy associated with that product.

(Id. at 164.) Pash rejected the players’ argument in light of: (1) the rule of strict liability embodied in the Policy, (2) the 20-year history of the application of the Policy, (8) the “repeated!] warn[ings] that if [players] take supplements, they do so at their own risk,” (4) the “repeated warnings about the risks inherent in using supplements in general and weight loss products in particular,” and (5) the fact that the players took StarCaps “knowing that a positive test would result in suspension and would not be excused based on a claim of unintentional or inadvertent use.” (Id. at 165.) Pash further noted that “[t]he Policy does not articulate or impose an obligation to issue specific warnings about specific products, and nothing in the record suggests that the bargaining parties have ever contemplated imposing such a requirement on Dr. Lombardo.” (Id.)

On December 3, 2008, the Players filed suit against the NFL, Dr. Lombardo, Dr. Finkle, and Birch in Minnesota District Court for the Fourth District, 6 alleging numerous violations of Minnesota common law. 7 That same day, the state court issued a temporary restraining order (“TRO”) blocking the suspensions. Following entry of the TRO, the NFL removed the case to federal district court.

On December 4, 2008, the Union, on behalf of all five players, initiated a separate suit in federal court against the NFL and NFLMC, alleging breach of contract under section 301. The Union sought to have the arbitration awards upholding the suspensions vacated as contrary to the essence of the CBA/Policy, as a violation of public policy, and as being rendered by a biased arbitrator. On January 2, 2009, the Players filed an amended complaint in federal court, adding two counts. Count XII asserted a violation of Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), MinmStat. §§ 181.950-957, and Count XIII asserted a violation of Minnesota’s Consumable Products Act (CPA), Minn.Stat. § 181.938.

On December 5, 2008, the district court granted the Union’s motion for a preliminary injunction and declined to overturn the TRO entered in state court prior to removal, which allowed the players to continue playing until the end of the NFL’s 2008-09 season. Following expedited discovery, the parties filed cross-motions for summary judgment. The district court granted the NFL’s motion for summary judgment in part and denied it in part. *873 The court denied the Union and the Players’ motion for summary judgment. First, the district court concluded that the Players’ common law claims were preempted by section 301 such that they must be construed as section 301 claims. Second, the court determined that the arbitration awards did not fail to draw their essence from the CBA/Policy because the arbitrator’s decision construed and applied the language of the Policy. Also the arbitrator acted within the scope of his discretion under the Policy. Third, the court concluded that the Union’s argument — that the NFL and Dr. Lombardo violated public policy by failing to disclose that Star-Caps contained bumetanide — failed because Dr. Lombardo warned players about weight-loss supplements in general and testified that had a player asked him about StarCaps he would have disclosed that it contained bumetanide. The court determined that Dr. Lombardo’s decision not to provide an ingredient-specific warning was within his discretion. The court further decided that the NFL had no duty to specifically inform players when a supplement is found to contain a banned substance. Finally, the court determined that Pash was not a partial arbitrator and, even if Pash’s involvement could somehow establish bias, the Players and the Union had waived any such claim. Therefore, the court dismissed the Union’s section 301 breach of contract claim and the Players’ common law claims (which the court had already determined were actually § 301 claims).

With respect to the Players’ DATWA and CPA claims, the court found that the claims were not preempted because the rights and obligations under the statutes existed independently of the CBA/Policy. Having dismissed all of the federal claims, the district court declined to exercise supplemental jurisdiction over the DATWA and CPA claims, concluding that the statutes are a reflection of Minnesota public policy and, thus, it was more appropriate for a Minnesota state court to resolve the claims. The NFL, the Players, and the Union each appeal portions of the district court’s summary judgment order.

II.

The NFL appeals the district court’s partial denial of its motion for summary judgment. Specifically, the NFL appeals the district court’s decision that the Players’ Minnesota statutory claims are not preempted by section 301. Conversely, the Players appeal the district court’s determination that their Minnesota common law claims are preempted by section 301. We review the preemption issues de novo. Bogan v. Gen. Motors Corp., 500 F.3d 828, 832 (8th Cir.2007).

A.

We first consider the DATWA claim. The NFL asserts that the DATWA claim is preempted because: (1) the claim turns on analysis of the Policy in order to determine whether it “meets or exceeds” DATWA’s requirements, (2) the claim requires interpretation of the Policy in order to determine whether the NFL qualifies as an employer under DATWA such that the statute’s protections extend to the Players, and (3) uniform interpretation of the CBA/Policy is necessary to preserve the integrity of the NFL’s business as a national organization.

We begin our analysis by reviewing the section 301 preemption doctrine. Section 301 applies to “[sjuits for violation of contracts between an employer and a labor organization,” 29 U.S.C. § 185(a), or, in other words, suits for breaches of CBAs. The Supreme Court has held that federal law exclusively governs suits for breach of a CBA, see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, *874 1 L.Ed.2d 972 (1957), and that “the preemptive force of [section] 301 extends beyond state-law contract actions[,]” United Steelworkers v. Rawson, 495 U.S. 362, 369, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Section 301 preempts state-law claims that are “substantially dependent upon analysis” of a CBA, Lueck, 471 U.S. at 220, 105 S.Ct. 1904, because “the application of state law ... might lead to inconsistent results since there could be as many state-law principles as there are States ... [,]” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Rather, “federal labor-law principles' — necessarily uniform throughout the nation — must be employed to resolve the dispute.” Id. However, the Court has established that section 301 does not preempt state law claims merely because the parties involved are subject to a CBA and the events underlying the claim occurred on the job. See Lueck, 471 U.S. at 211, 105 S.Ct. 1904 (“Of course, not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 .... ”); see also Graham v. Contract Transp., Inc., 220 F.3d 910, 913 (8th Cir.2000) (providing that “a claim is not preempted simply because it relates to a dispute in the workplace”).

In applying the section 301 preemption doctrine, we begin with “the claim itself,” see Trustees of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 331 (8th Cir.2006), and apply a two-step approach in order to determine if the claim is sufficiently “independent” to survive section 301 preemption, see Bogan, 500 F.3d at 832. First, a “state-law claim is preempted if it is ‘based on’ [a] ... provision of the CBA[,]” meaning that “[t]he CBA provision at issue” actually sets forth the right upon which the claim is based. Id. Second, section 301 preemption applies where a state-law claim “is ‘dependent upon an analysis’ of the relevant CBA,” meaning that the plaintiffs state-law claim requires interpretation of a provision of the CBA. Id.

DATWA governs drug and alcohol testing in the Minnesota workplace by imposing “minimum standards and requirements for employee protection” with regard to an employer’s drug and alcohol testing policy. MinmStat. § 181.955 subdiv. 1. DATWA lists minimum informational requirements for the contents of drug policies. 8 Id. § 181.952 subdiv. 1. DATWA sets forth the criteria that a testing laboratory must meet in order for an employer to use its services. Id. § 181.953 subdiv. 1.

DATWA also requires that an employer provide an employee, who tests positive for drug use, with “written notice of the right to explain the positive test[,]” Id. § 181.953 subdiv. 6(b), an opportunity “to explain that result,” Id. § 181.953 subdiv. 6(c), and the ability to “request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense ... [,]” id. DATWA precludes an employer from “discharg[ing][or] disciplining] ... an em *875 ployee on the basis of a positive result ... that has not been verified by a confirmatory test.” Id. § 181.953 subdiv. 10(a). Specifically, with respect to first-time offenders, an employer cannot discharge such an employee unless the employee is first given the opportunity to participate in treatment and refuses to participate or fails to successfully complete the program. Id. § 181.953 subdiv. 10(b)(l)-(2).

DATWA expressly addresses CBAs. Subdivision two of section 181.955 mandates that DATWA applies to all CBAs in effect after passage of the law in 1987. See id. § 181.955 subdiv. 2. However, subdivision one of section 181.955 provides that DATWA “shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection. ...” Id. § 181.955 subdiv. 1.

We note that it is unclear which specific violations of DATWA that the Players are alleging, other than the failure to use certified laboratories. 9 The amended complaint does not flesh out the claim but generally states that the “[d]efendants have violated the Players’ substantive and procedural rights under the Minnesota Drug and Alcohol Testing in the Workplace Act.” (Am.Compl. ¶ 98.) The district court, in discussing the DATWA claim, noted that “[ajmong other things, DATWA provides that an employee may not be disciplined on the basis of an initial positive test and requires the employer to allow the employee the right to explain a positive test[,j” and that “[tjhe NFL concedes that its steroid testing procedures do not comply with the letter of Minnesota law, but argues that the differences are negligible and do not require the Court to invalidate the Williamses’ positive tests for bumetanide.” (Dist. Ct. Summ. J. Order 20.)

First, the NFL contends that, because the Players were tested pursuant to a collectively bargained-for drug policy, DATWA liability hinges on whether the Policy affords protections that are equivalent to or greater than DATWA’s mandatory protections. The NFL asserts that DATWA creates two paths to compliance such that an employer may conduct its drug testing either: (1) in compliance with DATWA or (2) pursuant to a CBA providing employees with equivalent or greater protections than DATWA. The NFL argues that this will necessarily require a court to construe the terms of the Policy in order to determine whether its protections for players “meets or exceeds” DATWA’s protections such that any DATWA claim alleged by the Players is preempted by section 301. See Minn.Stat. § 181.055 sub-div. 1. Thus, the NFL is essentially arguing that an employee has no DATWA claim if he or she is a party to a CBA that is at least as protective of the employee as DATWA. We disagree.

DATWA does not state that an employee who is a party to such a CBA cannot bring a claim under DATWA. Rather, where there is a CBA that is at least as protective of employees as DATWA, the number of possible claims an employee has against his or her employer will be affected. Where the employer complies with DATWA but not with its CBA that provides greater protection, the employee could have a only a claim for breach of contract. Where the employer does not comply either with DATWA or its CBA that provides equivalent or greater protection than DATWA, the employee could *876 potentially have two claims, a claim for breach of contract and a DATWA claim.

Here, a court would have no need to consult the Policy in order to resolve the Players’ DATWA claim. Rather, it would compare the facts and the procedure that the NFL actually followed with respect to its drug testing of the Players with DAT-WA’s requirements for determining if the Players are entitled to prevail. Such a claim is not preempted. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261, 266, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (“ ‘[PJurely factual questions’ about an ... employer’s conduct ... do not ‘requir[e] a court to interpret any term of a[CBA].’ ” (quoting Lingle, 486 U.S. at 407, 108 S.Ct. 1877)); see also Thompson v. Hibbing Taconite Holding Co., No. 08-868, 2008 WL 4737442, * 1, *4 (D.Minn. Oet.24, 2008) (unpublished) (holding that a terminated employee’s multiple DATWA claims alleged “violations] [of] such non-negotiable state law rights [which] d[id] not require an interpretation of the CBA, and would not be preempted under the LMRA”). The Tenth Circuit considered an analogous fact situation in Karnes v. Boeing Co., 335 F.3d 1189 (10th Cir.2003). There, a former employee brought an action against Boeing under Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act. Id. at 1192. Although the plaintiff did not identify the specific sections of the Act that Boeing violated, the court observed that “within the sections he cite[d]” was a provision providing that “[n]o disciplinary action, except for a temporary suspension or a temporary transfer to another position, may be taken by an employer against an employee based on a positive test result unless the test result has been confirmed by a second test.” Id. at 1193 (quotation omitted). The court observed that “[i]n order to establish a violation of this section, [the plaintiff] must show that Boeing (1) discharged him based on his drug test, and (2) failed to confirm the result through a second test. Neither inquiry requires a court to interpret, or even refer to, the terms of a CBA.” Id. Therefore, the court found that the state statutory claim was “clearly independent of the CBA and ... not subject to § 301 preemption.” Id. at 1194.

Second, the NFL contends that, because DATWA provides employees with a cause of action against their employers, interpretation of the CBA/Policy is required in order to determine if the NFL qualifies as an employer under DATWA. 10 Section 301 preempts a state law claim if its “resolution ... depends upon the meaning of a collective-bargaining agreement.” Lingle, 486 U.S. at 405-06, 108 S.Ct. 1877 (emphasis added). “[T]he Supreme Court has distinguished those which require interpretation or construction of the CBA from those which only require reference to it.” Trustees, 450 F.3d at 330; see Livadas v. Bradshaw, 512 U.S. 107, 124-25, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (holding there was no section 301 preemption because a wage rate provision of the CBA only had to be referenced to compute the proper damages). “An otherwise independent claim will not be preempted if the CBA need only be consulted during its adjudication.” Trustees, *877 450 F.3d at 330. In sum, section 301 does not preempt every employment dispute, and it does not preempt all other disputes concerning CBA provisions. Miner v. Local 373, 513 F.3d 854, 865 (8th Cir.2008). “Rather, the crucial inquiry is whether ‘resolution of a state-law claim depends upon the meaning of a[CBA].’ ” Id. (quoting Lingle, 486 U.S. at 405-06, 108 S.Ct. 1877).

The NFL does not point to a specific provision of either the CBA or the Policy which must be interpreted. The CBA’s Preamble provides that NFL players are “employed by a member club of the National Football Leaguef.]” CBA, Preamble. Appendix C to the CBA contains the “NFL Player Contract,” 11 which provides that the contract “is between ... [the] ‘Player,’ and ... ‘Club,’ ... as a member of the National Football League.” Id. App. C at 248. The contract further states: “Club employs Player as a skilled football player. Player accepts such employment.” Id. None of these references require interpretation, only mere consultation, which is insufficient to warrant preemption of an otherwise independent state law claim. See Livadas, 512 U.S. at 124-25, 114 S.Ct. 2068; Trustees, 450 F.3d at 330. Furthermore, the Players’ contracts, likely dispositive in determining who their employer is, are actually separate documents from the CBA such that there is no need to reference the form contract contained in Appendix C of the CBA to examine them. 12

Finally, the NFL argues that denying preemption and subjecting the Policy to divergent state regulations would render the uniform enforcement of its drug testing policy, on which it relies as a national organization for the integrity of its business, nearly impossible. The Ninth Circuit, sitting en banc, has rejected a similar argument. See Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 695 n. 9 (9th Cir.2001) (en banc). In Cramer, the employer, a large trucking company, “argue[d] that the terms of CBAs affecting employees in multiple states should supersede inconsistent state laws.” Id. at 688, 695 n. 9. The Ninth Circuit observed, “This contention overreaches, however, because *878 the LMRA certainly did not give employers and unions the power to displace any state regulatory law they found inconvenient.” Id. at 695 n. 9. We think this is the proper result in light of the Supreme Court’s observation that:

[T]here [is not] any suggestion that Congress, in adopting § 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored. Clearly, § 301 does not grant the parties to a [CBA] the ability to contract for what is illegal under state law. In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.

Lueck, 471 U.S. at 211-12, 105 S.Ct. 1904 (footnote omitted) (emphasis added); see Livadas, 512 U.S. at 123, 114 S.Ct. 2068 (cautioning that section 301 “cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law”); see also Karnes, 335 F.3d at 1194 (noting that “the fact that the CBA incorporated Boeing’s anti-drug policy is irrelevant because ‘§ 301 does not grant the parties to a [CBA] the ability to contract for what is illegal under state law’ ” (quoting Lueck, 471 U.S. at 212, 105 S.Ct. 1904)). Therefore, the NFL’s national uniformity argument fails.

In sum, the Players’ DATWA claim is predicated on Minnesota law, not the CBA or the Policy, and the claim is not dependent upon an interpretation of the CBA or the Policy. Thus, the Players’ DATWA claim is not preempted by section 301.

B.

We now turn to the CPA claim. The CPA generally prohibits employers from “disciplin[ing] or discharging] an employee because the ... employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.” Minn.Stat. § 181.938 subdiv. 2. “ ‘[L]awful consumable products’ means products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco.” Id. However, employers can restrict employee consumption of “lawful consumable products” if they “relate! ] to a bona fide occupational requirement and [are] reasonably related to employment activities or responsibilities of a particular employee or group of employees,” id. § 181.938 subdiv. 3(a)(1), or are “necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer!,]” id. § 181.938 subdiv. 3(a)(2).