interesting to say the least...
By now, Odell Thurman figured he would be back on a football field to resume his promising career as a linebacker for the Cincinnati Bengals.
Those around him say he has gained control of his drinking problem. And he has served a yearlong suspension for violating the N.F.L.’s substance-abuse policy, a punishment that resulted after he was charged with driving under the influence while already suspended. The Bengals could certainly use him. Their season is on the verge of collapse, partly because their defense is porous.
Instead, Thurman, 24, is at the center of an unusual case that could challenge the sweeping powers the league has to discipline players with substance-abuse problems.
He has filed a complaint with the Equal Employment Opportunity Commission, asserting that the N.F.L. declined to reinstate him because officials believe he is an alcoholic. That, his complaint says, violates the Americans with Disabilities Act, which categorizes people as disabled if they have a record of alcoholism and have received treatment.
“The crux of the complaint is that they have a disability and they are not being reinstated because of that disability,” said Paul M. Secunda, a labor and employment law expert who edits the Workplace Prof Blog. “What we’re talking about is the disability of the player and the rights of the employer to run the N.F.L. as they see fit. It’s, where does the D.U.I. fit it? Does the league have the right to take further action beyond what the criminal court system does?”
Secunda added: “Potentially, these situations are boundless as far as athletes getting in trouble with alcohol- and drug-related cases. It’s the larger debate in society. At what point do people have to take responsibility for their own actions?”
While Thurman waits for his case to work through a tangle of bureaucracy, he is traveling between his home in Atlanta and Cincinnati, trying to stay in shape and hoping to find work while missing his second consecutive season. He will try for reinstatement next year.
The case began when he was suspended for the first four games of the 2006 season for violating the league’s substance-abuse policy. The suspension was extended to a full season when he was arrested on a D.U.I. charge.
Thurman applied for reinstatement earlier this year, but Commissioner Roger Goodell decided in July that the suspension should continue for another season. In a letter to Thurman, Goodell indicated that Thurman’s conduct in the rehabilitation program had led the league to believe he would not be able to continue to observe the substance-abuse program if he were reinstated, according to Thurman’s lawyer, John J. Michels.
“The league believes Mr. Thurman is an alcoholic and has taken an adverse employment action based on that,” Michels said. “It would be one thing if he had engaged in additional alcohol incidents. That’s not what happened. You can hammer people for conduct that breaches your standards. But this is the functional equivalent of telling somebody that you believe has cancer, we’re not going to employ you.”
He further described the league’s ruling as “a kick in the head.”
Michels conceded that Thurman missed tests that were mandated in the substance-abuse policy. But he said Thurman completed an inpatient rehabilitation program in April that lasted several months. He also said the league told Thurman its medical staff had not had enough time to evaluate his progress since he completed the program.
A representative of the commissioner’s office was supposed to meet with Thurman before his reinstatement was considered, and that meeting was never arranged, Michels said.
When asked about Thurman’s last positive test, Michels said: “It’s been ages. It hasn’t been this year, and I don’t think it was last year.”
Thurman declined a request to be interviewed for this article.
In a brief interview in September, Goodell said the league had concerns about Thurman’s actions in rehab.
“We looked at everything,” he said. “Is he doing things that are part of the program? He wasn’t, in some cases.”
Greg Aiello, an N.F.L. spokesman, defended the league’s substance-abuse rules.
“We have operated our program successfully for almost two decades and are fully confident that our policies are consistent with the law,” he said.
Whether Thurman is currently abusing alcohol or is seeking help is an important distinction. If he is abusing alcohol, he would not be protected under the disabilities act. But if he is receiving treatment, he could be considered disabled.
“The issue is, how long do you have to be off before you are not considered to be currently abusing?” Secunda said. “There is no clear answer, no bright line.”
One recent E.E.O.C. case is similar to Thurman’s. Roy Tarpley, a former N.B.A. player, struggled for years with substance abuse and was thrown out of the league in 1991 for violating its policy. He was reinstated in 1994. But in 1995, he relapsed and was permanently barred.
When he sought reinstatement in 2003, he was denied even though he said he no longer had a problem and was not failing drug tests. He brought a disability discrimination complaint to the commission, the federal agency that acts as a gatekeeper on employment issues.
The E.E.O.C. found in favor of Tarpley over the summer, and on Sept. 26, he sued the N.B.A. and the Dallas Mavericks, arguing that they had violated the disabilities act by refusing to reinstate him.
Secunda said he was not sure Tarpley’s case would bolster Thurman’s, because the E.E.O.C. could look at whether the N.F.L. was within its rights to extend the suspension because of the drunken-driving case.
Even the leader of the N.F.L. Players Association is perplexed by the case.
“I was surprised they had taken this route,” Gene Upshaw, the union’s executive director, said. “I know once you’re in the program, the only way you can get out of it is you have to comply with the rules.”
Thurman’s speediest way back to football would probably be to apply for reinstatement in 2007, because the employment commission could take years to rule on his case