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The Kombucha Defense and Fighting the NFL

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As crazy as it seems, could the ridiculous Kombucha defense lead to a legal battle with the NFL?

It’s a sadly predictable story every offseason—some NFL players take advantage of their down time and get in trouble with the law. The faces and jerseys change, the story remains the same. But the latest NFL poster child for poor life choices could put a new spin on an old story.

Tea-ing Up

In the last few weeks I have heard more about Kombucha, the slightly alcoholic probiotic tea drink, than I ever would have imagined possible. Much of the reporting centered on exactly how much Kombucha it would take to get Minnesota Vikings receiver Michael Floyd’s BAC up to .044—the level it was reported that his alcohol monitoring device registered, violating the terms of his house arrest (part of his sentence for an extreme DUI back in December 2016) just five days before it was to end. According to Floyd, his device was triggered because he was drinking Kombucha while watching movies, not realizing that Kombucha contained alcohol.

There have been articles (including this one on DN) that suggest it would take a staggeringly large amount of Kombucha (between 380 and 430 oz depending on the BAC calculator and strength of Kombucha you use) and it would have to be chugged in about an hour for Floyd’s story to be true. That’s not recreationally tossing back a few while watching movies, that’s more like pledging a fraternity, or losing a bet and it makes Floyd’s claim sound ridiculous.

The Twist

Most fans and media were probably expecting the Vikings to release Floyd as soon as the news broke about him violating the terms of his house arrest—I know I was. But the perfunctory news release from the team that Michael Floyd was no longer a part of the organization didn’t come out on the Friday the story came out, and still didn’t happen the following Monday.

I figured that the Vikings were waiting for Floyd to appear in court in Arizona and would then drop him like third period French. Again, they did not.

According to reports from Brian Murphy of the Pioneer Press, not only were the Vikings standing with Floyd, but the team’s COO Kevin Warren actually wrote to Scottsdale judge Statia Hendrix to say that the Vikings serve Kombucha at their facility on a daily basis, that they encourage their players to drink it, and went so far as to request that Floyd not be negatively impacted because he didn’t know that Kombucha contained alcohol.

This is not the usual team reaction to a player or staff member having legal troubles because of alcohol issues.

I don’t want to say that Michael Floyd is unimportant to the team, but he’s a 3rd or 4th receiver on the depth chart at best. Kevin Warren is the person that Adrian Peterson’s camp vilified as not doing enough to get Peterson back onto the field following Peterson being indicted on child abuse charges in 2014 and missing all but one game that season. At that time, Peterson was still a star running back and not far removed from his MVP 2012 season. The fact that Warren wrote to Judge Hendrix to ask for leniency for Floyd is both weird and intriguing. And it may suggest that the Vikings are covering themselves for potential legal action from Floyd’s camp. After all, they knowingly provided an alcoholic beverage at the team facility and encouraged a player who was currently under house arrest for an incident of extreme DUI to drink it.

Fighting the NFL—A History Lesson

This all sets up an interesting situation when NFL commissioner Roger Goodell finally gets around to handing out Floyd’s suspension.

If Goodell does not take the the violated house arrest into account when determining the length of Floyd’s suspension, which could be anywhere from 2 weeks to the entire season, then the issue might be moot and not go to the Minnesota courts. But, should Floyd’s suspension take the house arrest violation into consideration, then things could get murky.

Way back in 2008 the Vikings had two players who were trying to lose weight in order to get roster bonuses—Pat Williams and Kevin Williams of the Vikings defense’s famed “Williams Wall”. In order to drop weight they used a diuretic called StarCaps. Unbeknownst to them, StarCaps contained Bumetanide, a substance that the NFL had banned because it could be used to mask the use of steroids. Bumetanide was not listed as an ingredient in StarCaps, however, the NFL learned that the product contained Bumetanide and did not alert players that StarCaps contained a banned substance. In the drawn out court battle, it finally came down to the good ol’ Collective Bargaining Agreement and that players are responsible for what they put in their bodies. Period. Claiming ignorance of an ingredient was not a defense for having it in their systems.

The Williams Wall fought the suspensions until 2011. Kevin Williams was suspended for two games and forfeited his game check for an additional two games. Pat Williams did not play after the 2010 season and was unable to be suspended because he retired. The NFL proved they could outlast the players in a legal fight that cost the players somewhere in the neighborhood of $1 million in legal fees and cost Kevin Williams $1.4 million of his $6 million base pay in 2011.

Bringing it Forward

Under the CBA as it has been applied in the past, Floyd’s defense that he was ignorant of the fact that Kombucha tea had alcohol in it would not appear to be a valid excuse for violating his house arrest conditions. But with the Vikings providing Kombucha on what Warren’s letter to the judge said was a “daily basis”, it could complicate the issue.

Goodell may institute a harsher penalty on Floyd for breaking his house arrest conditions, but would that enable Floyd to come after the Vikings in court? After all, they knowingly provided a person who was under house arrest for extreme DUI with alcohol. He might even be able to argue that he as expected to drink it and didn’t feel he could refuse the team.

There’s a reason that the NFLPA loves the Minnesota court system. Important NFL labor disputes have been decided in Minnesota courts since 1975, and U.S. District Court Judge David Doty has been a thorn in the NFL’s side for more than 25 years thanks to the Freeman McNeil case that found that the NFL’s Plan B free-agency violated anti-trust laws. Tom Brady even tried to get his case fighting his “Deflategate” suspension tried in Minnesota because the courts here are more favorable, but the case was transferred to Manhattan.

If Michael Floyd were to take his suspension to court, there’s every reason to believe it would be in Minnesota. Over the last decade it has become increasingly common for NFL players to fight their league suspensions in court. The Vikings’ support of Floyd could be a way of trying to head off potential legal action from Floyd and the NFLPA, but that could then pit the team against the NFL. Could the NFL punish the Vikings for providing an alcoholic beverage to Floyd? It might sound unlikely, but this is the same league that took away first and fourth round draft picks from the New England Patriots and fined them $1 million after the organization was absolved of wrongdoing in “Deflategate.”

Perhaps Goodell will avoid the situation entirely and simply issue Floyd’s suspension on the basis of his history of alcohol-related run-ins with the law and not reference his house arrest violation. But, if history tells us anything, it is that the NFL is not afraid of the consequences of issuing hefty suspensions for any reason they deem an infraction or, worse, a public embarrassment.

Legally, things might get interesting.