Arbitrator’s Independent Research On Steroids Results In Overturning Of Decision On Firefighter’s Termination

On September 24, 2007, Travis Quesada was dismissed from his employment with Tampa, Florida Fire Rescue after a second drug test came back positive for suspicious levels of the metabolite 19-norandrosterone. This result suggested that Quesada had taken the anabolic steroid Nandrolone and had been untruthful in his responses to departmental and medical inquiries regarding steroid use.

Quesada filed a grievance, maintaining that he had not taken illegal anabolic steroids and that his use of the legal, over-the-counter supplement 17–Halo–Methyl–Dianadrone (17-HD) had produced false positive test results. After the grievance was denied, the parties went to arbitration pursuant to a collective bargaining agreement between the City and International Association of Fire Fighters, which represented Quesada. A hearing was held. Both the City and the IAFF presented expert testimony regarding anabolic steroid testing generally and the possibility that legal supplements such as 17-HD could produce a false positive result on a test for steroids.

The City’s expert testified that he had become acquainted with 17-HD the day of the hearing and did not know enough about it to comment on whether it could have caused Quesada’s positive test results. But he was not aware of any cases where the reporting limit of the metabolite 19-norandrosterone had been exceeded with anything other than Nandrolone or a related steroid. The IAFF’s expert, on the other hand, characterized 17-HD as a legal pro-steroid that “has the potential of producing the same metabolite, the same breakdown product as the illicit Nandrolone.” He noted that Quesada’s levels of 19-norandrosterone were low compared to documented Nandrolone users and concluded that there was a very reasonable probability that Quesada’s consumption of 17-HD caused false positive test results.

The Arbitrator issued an award holding that the City had not unjustly terminated Quesada’s employment. In the award, the Arbitrator acknowledged that she had conducted independent research on the supplement 17-HD. She noted that Vyotech – the company that produces 17–HD – states on its website that the supplement will not show up on drug tests. She attached several pages of information, apparently gathered from Vyotech’s website and a dietician acquainted with 17-HD. These pages contained an assessment of 17-HD’s ingredients and the dietician’s opinion that “17-HD is just a bunch of herbs with a name that tries to sound like a prohormone or even a potent steroid.”

After mentioning this outside research, the Arbitrator concluded that Quesada’s positive test result could not have been caused by 17-HD, that his responses regarding steroid use were untruthful, and that he had not been unjustly terminated. Quesada filed a motion in court to vacate the arbitration award because the Arbitrator had conducted independent research.

The Florida Court of Appeals overturned the Arbitrator’s award. The Court noted that Florida law required that an arbitrator’s award be overturned “when there is misconduct by an arbitrator which prejudices the rights of any party.” In the Court’s judgment, “the Arbitrator’s independent research constitutes misconduct because arbitration panels should not, in the course of their deliberations, go outside the evidence presented to them.”

The Court also found that “Quesada has been prejudiced by the Arbitrator’s misconduct because her independent research yielded information not only different from any of the evidence in the record but also damaging to Quesada’s case. We note that the collective bargaining agreement did not provide that the Arbitrator was free to conduct independent research. Accordingly, we vacate the Arbitrator’s award.”

Quesada v. City of Tampa, 2012 WL 2614918 (Fla .App. 2 Dist. 2012).

Note: Oddly, the Court did not describe what should happen next in Quesada’s challenge to his discipline. Presumably, it will be up to a trial court to decide whether Quesada should have his discharge overturned, whether the case should be sent back to the original arbitrator for a new ruling (excluding her “independent research”), or whether the case should be sent to a new arbitrator.