When is it OK for a doctor to not tell you that something you are taking might be harmful?
Apparently, when you and the doctor work for the National Football League.
While six NFL players await word on whether their four-game suspensions for use of a banned substance will be upheld, the situation involving the use of an over-the-counter supplement called StarCaps threatens to undermine the credibility of the league's policy on performance-enhancing drugs.
At issue is whether the league did enough to warn its players about StarCaps, a powerful dietary supplement that contains the banned diuretic bumetanide, which causes rapid weight loss by flushing water from the body. According to multiple sources, league doctors knew in late 2006 that StarCaps contained bumetanide because another player tested positive for it after using the product. Those sources corroborate what attorney David Cornwell said he was told by Dr. John Lombardo, a physician who administers the NFL's policy, during an appeals hearing on Nov. 18.
Furthermore, toxicologists at the University of Utah who oversee the NFL's testing were so intrigued by the information they discovered in 2006 about StarCaps that two of them published a study about the supplement in 2007. The study showed all four test patients had traces of bumetanide in their urine after taking StarCaps.
In other words, doctors paid by the NFL to test players were eager to tell the world the truth about StarCaps. But when it came to telling the athletes whose lives and careers could be impacted by using it, the lines of communication hit plenty of snags.
Those snags happened despite the NFL's claim in its own drug policy that "the league is concerned with the adverse health effects of using prohibited substances."
Those snags left at least one player incredulous.
"Are you serious?" said a veteran NFL player who spoke on the condition of anonymity. "How are you supposed to trust that? It's a joke. They don't want us to take stuff, but when we ask them if [a supplement] is OK, they can't tell us? They won't tell us?
"The league wants to suspend and fine us, take money out of our pockets and allow our reputations to get killed, but they won't tell us straight up when they know something is [banned]."
Going by either the Hippocratic Oath or the American Medical Association code of ethics, there is little question that doctors who have this information should divulge it. But lawyers hired to protect the league would likely argue that a "duty to inform" could lead to the league and its doctors being liable if something went wrong. Given that players have died in recent years, such as former Minnesota Vikings lineman Korey Stringer in 2001, that liability could be enormous.
Even so, the NFL and the NFL Players Association maintain that they try to bridge the gap as best as possible. The bottom line, the players say, is this: When you scrape away legal issues, medical ethics and other complicated considerations, isn't the job of a doctor to warn people about potential harm?
"Dr. Lombardo put health and careers at risk to gain a tactical advantage in unfiled disciplinary appeals," said Cornwell, who represents three of the six players. "His job is to protect NFL players, not get 'em. If Dr. Lombardo had done his job as well as NFL players are required to do theirs, we would not have this controversy over StarCaps.
"A double standard is totally inappropriate. It is outrageous that … NFL players are confronting discipline when it is Dr. Lombardo who failed," said Cornwell, who represents New Orleans Saints running back Deuce McAllister and defensive ends Charles Grant and Will Smith in their appeals. Minnesota defensive tackles Kevin Williams and Pat Williams and Atlanta Falcons defensive tackle Grady Jackson have also appealed their suspensions for use of StarCaps.
In addition, New Orleans guard Jamar Nesbit served a four-game suspension (at a cost of $235,294 based on his annual salary) after using StarCaps and testing positive for bumetanide. Nesbit is now suing StarCaps.
"To me it looked like [Lombardo] was setting up the players for a fall. It seems that somewhere along the lines he has to be accountable for it, too," said Nikki Haskell, a former stock broker who parlayed her friendships with Ivana and Donald Trump into semi-celebrity status before marketing StarCaps under her name. "I'm sure there must be a lot of cages rattling over there. … Instead of suing me, they should be suing this doctor. He works for them.
"If [the NFL] knew about it, why didn't they tell me? I thought their responsibility was to protect their players. To not tell their players that something is in there, to me, is a little strange."
The league and the NFLPA have declined to discuss StarCaps because of the pending appeals. However, one source explained that Lombardo is in a difficult legal position.
"The question is whether he's there to administer the program or whether he's treating the players as patients," the source said. "From the league's standpoint, I think it's pretty clear that it would argue that Lombardo is there only to administer the program. To do anything more than that would be assuming liability for the players and any lawyer would tell a client in this situation, you don't want to assume any liability."
While the issue of liability conflicts with the policy's general statement, it's consistent with the warning written throughout the policy: "Players are responsible for what is in their bodies, and a positive test result will not be excused because a player was unaware that he was taking a prohibited substance."
Furthermore, asking the NFL to test the myriad supplements is difficult and expensive.
"There's no way the league can keep up, nor should it try to on its own," said a former player who is now an executive with an NFL team. "That's not the job of the league. We can't open a testing lab and check everything the players bring in. It would cost too much and they have doctors and scientists who do that stuff already."
"I understand the point and it's common sense. If we know about something being bad, you should be able to just tell the players, 'Hey, don't take this.' We could have avoided this whole thing with StarCaps really easy. Just tell guys it's no good," the executive said.
The NFL has two ways it informs players about potential problems with supplements. First, there is a hotline for players to call and find out whether any of a supplement's listed ingredients are banned by the league.
StarCaps, however, purports to be all-natural and doesn't list as an ingredient bumetanide, which is a prescription diuretic. According to Cornwell, neither Lombardo nor the NFL instructed hotline workers to inform callers either about the previous failed test for players using StarCaps or the 2007 toxicology study.
Second, the NFL and NFLPA compile a list of companies that players are not allowed to endorse because the companies make products that contain banned substances. An NFL source said the list serves as a way of guiding players about supplement companies that haven't submitted their products for approval by the league and union (only EAS has so far received approval).
The problem is the list doesn't say exactly which products made by those companies are good or bad. Furthermore, connecting which company makes which supplement isn't easy.
McAllister told multiple media outlets he has taken StarCaps for the past four years in an effort to keep his weight down. Likewise, players such as Jackson and Pat Williams used the supplement to make weight restrictions set by their teams. The reason bumetanide, which is considered a masking agent for steroids, didn't show up in previous tests is that it flushes through the body in a 24 to 36 hours, taking needed minerals such as potassium with it. That can put athletes at risk of heart problems and even death as they become dehydrated.
Haskell said she has sold the product for 25 years and her website appears reputable. She has pictures of herself with dozens of celebrities, including Bill and Hillary Clinton, Owen Wilson, Cher, Pamela Anderson, Elizabeth Taylor and many others. Ivana Trump and actress Joan Collins are friends who have endorsed the product.
The product is no longer being shipped and Haskell said it's being reformulated, although any lawsuits will have to be settled before it can be sold again.
Whether Cornwell wins the appeal for his clients is a more difficult matter. Appeals of league suspensions are, under the terms of the collective bargaining agreement, heard by league-appointed arbitrators. In this case, league attorney Jeff Pash heard the appeal.
"This is not like appealing to a jury," a person familiar with the process said. This is appealing to the people who made the rules and handed down the punishment, so it's much harder to convince them to change their minds. If [Cornwell] were arguing this before a jury, he'd probably have a much better chance.
"It's pretty simple. A doctor knows something, he should tell his patient. But in this situation, you're arguing that in front of a lawyer and you have to convince him. Did awareness of a problem create a duty that was breached? It's a very tough argument."
But it's also a touchy situation for the league. If the StarCaps six aren't given some leniency, more lawsuits are likely to follow, perhaps including the NFL as a defendant. More important, the ability of players to trust what the league tells them could be compromised.
Or as one person put it: "This will be a defining moment for [NFL Commissioner] Roger Goodell."
Y! Sports general writer Josh Peter contributed to this report