PROFESSOR PAUL SECUNDAON "THE ADAM TAXIN SHOW"
SUBJECT: ODELL THURMAN LAWSUIT
TO AIR ON TUESDAY, OCTOBER 23, 2007
WNWR 1540 AM PHILADELPHIA
WNWR.com
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Adam Taxin: Paul Secunda is the Jessie D. Puckett, Jr. Lecturer and Assistant Professor of Law at the University of Mississippi School of Law. He is also the co-editor of the excellent Workplace Prof Blog, which is at lawprofessors.typepad.com/laborprof_blog. His areas of expertise include employment discrimination law, labor law, civil procedure, employee benefits and education law, but we have him on today to talk about an issue related to sports law ... or somewhat related to sports law ... or at least related to an NFL player.
The Cincinnati Bengals are having big problems this year -- I picked them to come in first in the AFC North, but we won't dwell on that. One of their problems, and it is related to on-the-field performance, is the large number of criminal issues facing players there, and one of the many players who's been affected is Odell Thurman.
Paul, thanks for joining us today. Maybe you could tell us a little about the Odell Thurman case?
Paul Secunda: Thanks for having me, Adam. Odell Thurman is a middle linebacker for the Cincinnati Bengals, and he has filed a discrimination complaint with the main administrative federal agency, the Equal Employment Opportunity Commission, and his basic contention is that, under the Americans with Disabilities Act, that he is deemed to be an alcoholic, which is a disability, and he was suspended in violation of the Americans with Disablities Act, which we refer to as the ADA.
AT: So he, in sum, is saying that he was suspended basically for the reason that he's an alcoholic, that they were discriminating against him. What does the NFL say was the reason that it suspended Mr. Thurman?
PS: It's interesting, because not only has he been found to have been abusing alcohol, but he was also convicted of a driving-under-the-influence charge. But the NFL says that he was suspended for multiple violations of the league's substance abuse policy, which seems to suggest that not only was he found guilty of DUI, but he was in violation of his parole by not complying with the substance abuse program that he was placed into.
AT: So essentially what he's doing is -- there are multiple offenses -- he's taking one of the tangential issues and making a straw man out of it, to make a case to get reinstated.
PS: Well, it's not necessarily a straw man. He is thinking about the Roy Tarpley NBA case, where Roy Tarpley, who had also been an alcoholic, successfully convinced the EEOC to sue on his behalf for being discriminated against, being an alcoholic.
The important point, Adam, here is that the Americans with Disabilities Act does not treat current abuse of alcohol or drugs as a disability, but it does consider those who have a history of being alcoholics or drug addicts to be disabled. So Roy Tarpley in the NBA was able to show that he was no longer abusing alcohol, but the NBA was continuing to suspend him because he had a history of alcohol abuse, and so Odell Thurman -- and actually not only Odell Thurman but another player, Torrie Cox -- brought these charges to the EEOC, kind of based on that Roy Tarpley situation.
AT: And how does the ADA relate to drinking and driving, which is different from alcoholism?
PS:Right. The ABA is-- I mean, the ABA ... different league -- the ADA is not about immunizing people who are disabled. Just because you're disabled does not mean that you can engage in any type of workplace violation or criminal behavior. So even if he was considered to be an alcoholic protected by the ADA, that would not allow him to engage in driving under the influence, but, then again, the NFL is saying it's not because he had this DUI situation. They're more concerned, I think, with multipleviolations of the Substance Abuse Policy. And asI said, I think it deals with the fact that he was put on parole after his DUI, putinto rehabilitation, and then he violated the terms of that probation. I think that's what the NFL's concerned with.
AT: How has the ADA traditionally been applied to athletes, for whom obviously the most traditional disabilities would not apply, since such disabilities -- Casey Martin aside -- would generally preclude them from continuing as athletes?
PS:That's correct. I mean, the ADA does not generally apply to temporary disabilities like a broken leg, a torn ACL, anything like that. This is a new application of the ADA, in the alcohol/drug abuse area, and, again, it was really revolutionized, or it was brought for the first time, by Roy Tarpley, and he's kind of given the impetus to this type of claim being brought by these NFL players.
AT: What do you expect to happen with this case?
PS: Well, I expect that whatever happens with the case will have nothing to do with whether or not Odell Thurman plays this year for the Cincinnati Bengals.
Usually, when you file a complaint with the Equal Employment Opportunity Commission, at the very least you have to wait 180 days before you can get what's called a right-to-sue letter and use that to then sue in federal or state court. So if you think about 180 days, that's about six months.Odell Thurman is not going to be playing with the Cincinnati Bengals this year. I do suspect he will be playing next year. I believe the suspension will be lifted as soon as he complies with the other terms of his probation.
But whether he actually receives any future relief underthe ADA, I'mvery skeptical, because of the parole violations that seem to be applicable here. I think that the EEOC -- and, if there's a court case, the judge -- will find that the NFL was well within it's right to protect its image and to make sure that players abide by the terms of their parole conditions.
AT: Do you have, beyond that, any personal view on what should happen here?
PS:Well, I think my personal view is that there's a larger issue here, and this is what I said in the New York Times article a few days ago, which is that at some point this is about people taking responsibility for their own actions. And I think Odell Thurman needs to stand up and just say "Look, I was wrong more than once. I was wrong to do DUI, and I was wrong for not following the conditions of my parole, and now it's time for me to move on, put this behind me and try not to do anything bad in the future and start playing football again."
AT: He could actually take a page out of Michael Vick's book, who had a pretty good speech owning up to what he did...
PS: ... Right ...
AT: It might not help him but. Finally, the judge -- there was a probation hearing last week, and the municipal court judge in Cincinnati used it as an opportunity to bash the NFL as "hypocrites" for selling alcohol, as if selling alcohol during commercials on TV telecasts of the game is somehow related to DUI and breaking parole. What did you think of the judge's behavior there?
PS:Well, let me just correct you briefly, Adam. The hearing occurred back in August -- August 21 actually -- so this was two months ago, when he went up for his parole violation hearing, but, as far as the actual thing that the judge said, I think it is somewhat absurd. He wasn't suspended because he was drinking alcohol lawfully, like we're allowed to do in this country if you're 21 or over. There's a difference between responsible consumption of alcohol and illegal or irresponsible substance abuse, and, for whatever reason, that distinction completely went over the head of this municipal judge.
AT: Yes, so Judge John Burlew may have been grandstanding quite a bit there.
PS: Well, you know, these municipal judges -- we saw this in the Anna Nicole case -- they'll cry, they'll carry on. Yeah, but they're publicity hounds is a good way of putting it.
AT: Yeah, and he has his own website in which he talks about things like this all the time, very self-promoting, which is just a little unusual for a judge.
PS: Yeah, well not at the municipal level, which is the lowest level of the state court system. Those guys tend to be a little ... unusual.
AT: Correct. Well, Paul Secunda, law professor from University of Missippi Law School, thanks for being with us today.
PS: OK, thanks, Adam. Thanks for having me.
AT: My pleasure.