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Steinberg continues belated damage control for Cushing

More than a week after news emerged that Texans linebacker Brian Cushing will be suspended four games for violating the league’s policy regarding anabolic steroids and related substances, Cushing’s lawyer has launched a belated effort to prop up his client’s tattered image.

In so doing, Harvey Steinberg is keeping alive a story that, for Cushing’s sake, needs to finally die.

Steinberg, who inexplicably was silent until a day after Cushing gave the most damning steroids-related public remarks since Mark McGwire refused to talk about the past, is now talking a blue streak in the apparent hopes of reversing the perception that Cushing is a cheater and a liar — or at a minimum in the hopes of giving the shrinking corps of Cushing’s supporters some ammunition when arguing the player’s case at the nearest water cooler.

Steinberg’s latest remarks come via John McClain of the Houston Chronicle.  For starters, Steinberg discloses that Cushing was tested not once but twice before the league concluded that he had tested positive for hCG.  That fact, standing alone, isn’t surprising.  Under the steroids policy, 10 players per team per week are tested during the preseason and the regular season.  Once the roster is trimmed to 53, the chances of being tested in any given week are one in 5.3.

Steinberg says the first test resulted in an “A” sample that was “barely over the discernible legal limit” for hCG.  The “B” bottle — containing the other portion of the urine sample — was negative.  (In this regard, Steinberg claims that the “B” bottle is tested by a different lab.  He’s incorrect.  Under the policy, the “A” bottle and the “B” bottle are tested at the same lab, but by different technicians.)

Cushing then was tested again “several weeks later.”  (It’s unclear whether Steinberg means “several weeks after collection” or “several weeks after the results came back.”  This is a critical distinction; if Cushing knew in advance of the second sample that there was an issue with hCG, he would have been able to take steps to get it out of his system, or as the case may be he could have purchased a pre-owned Whizzinator.)  The second time around, the “A” bottle was positive, and the “B” bottle was positive.

“When we inquired about the level [of the new ‘A’ bottle], we were told
it was about the same as the original ‘A’ bottle, the first test,”
Steinberg said. “We were operating under the premise that we may well
get a negative ‘B’ bottle, which would render this test negative as
well.”

OK, let’s pause for a second.  It’s unreasonable to assume that the second “B” sample would be negative simply because the first “B” sample was negative.  The analysis of the “A” sample and “B” sample are the same.  Two tests are used as a protection for the player.  In this case, three out of four tests on two separate samples given by Cushing were positive for hCG.  But since the “B” sample on the first test was negative, Cushing ultimately was slapped with only one “positive” test.

Steinberg, a skilled litigator who knows a thing or two about gently obscuring certain aspects of reality when talking to a jury, also seems to suggest that the second test was an effort to “get” Cushing.  “We tried to discern why he tested positive and why were there two
separate tests on two separate occasions for this particular banned
substance,” Steinberg said.

Here’s why he was tested on two separate occasions:  because the steroids policy contemplates that 10 names randomly will be drawn each week during the preseason and the regular season for random testing.  But, hey, why not ignore, you know, reality when trying to fashion a juicy conspiracy theory?  (Moreover, there’s a chance that the second sample was collected before the league knew the results of the “A” sample; that would further undermine the idea that the NFL was “out to get” him.  Unfortunately, the confidentiality of the process prevents the league from setting the record straight in this regard.)

Steinberg also says that Cushing had a “pre-existing medical condition that was consistent with the natural production of hCG in males.”  But Steinberg points not to the notion that Cushing spent the entire season worried about cancer; instead, Steinberg claims that Cushing has an enlarged pituitary gland.

OK, but why then has Cushing not tested positive for hCG at any point after the test that resulted in his suspension?  This fact continues to be the one most important fact that Cushing’s camp continues to ignore.  If he has a condition that is generating unusual amounts of natural hCG, Cushing should be continuing to test positive, right? 

Apparently, he isn’t.

And the occam’s razor conclusion for this is that he’s no longer testing positive for hCG because he’s no longer ingesting hCG.

Then again, it’s not completely clear that Cushing has not tested positive.  We’re assuming that he hasn’t because, surely, evidence of the ongoing existence of hCG in his system (either as determined via NFL-implemented testing or private testing) would have helped avoid a suspension.  Besides, someone (Cushing, agent Tom Condon, and/or Steinberg) would be expressly — and loudly — stating that Cushing continues to show abnormal amounts of naturally-produced hCG.

Instead, Steinberg demonstrates his lawyer skills by adroitly dancing around the topic.  He says, “We did research and found out that his was a plausible explanation.  We
consulted an expert who suggested further testing.  We became convinced
that this was a situation that was naturally produced.”  But Steinberg never says that further tests showed high levels of hCG.  If it were true, he’d be saying it.  Heck, he’d be screaming it.

In the end, Steinberg seems to be claiming that Cushing experienced a short-term biological glitch — that his body naturally produced enough hCG to trigger a suspension and that the condition apparently has resolved itself, just as naturally.  But Steinberg has avoided directly making this contention, possibly because he knows it’s even less plausible than Cushing’s proclamation that he spent the balance of the 2009 season fearing death.

Making Steinberg’s delayed explanation even less credible is the fact that we heard nothing about this supposedly valid explanation for an entire week after Cushing’s suspension was announced.  Think about that for a second — Steinberg never bothered to help his client come up with a plan for seizing the upper hand in the P.R. battle by putting all of the cards on the table before the media or the fans were in a position to assume based on silence, inconsistent leaks (such as Cushing’s private claim that he tested positive due to something a doctor had given him), and Cushing’s train wreck of a press conference that the long-rumored juicer finally has been caught.  Indeed, Cushing’s camp knew for months that the day possibly was coming when Cushing would be suspended, and they all were caught flatfooted when it happened.  

So it’s hard not to be skeptical when we’re now getting spin and carefully constructed half-truths from the lawyer who not only lost the appeal, but also lost the P.R. battle that he didn’t even bother to show up for until it was far too late.

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32 Responses to “Steinberg continues belated damage control for Cushing”
  1. robert ethen says: May 15, 2010 3:22 PM

    I guess we can safely conclude from this that all lawyers are liars. Even the failed ones.

  2. Slow Joe says: May 15, 2010 3:23 PM

    Haha! Just when I post a comment that the Roethlisberger, LT, and Cushing stories have finally petered out, this gets posted!

  3. dean74 says: May 15, 2010 3:32 PM

    paw paw manning dont want his boys knocked into the next time zone this year…

  4. AlphaQ2 says: May 15, 2010 3:39 PM

    Hope Steinberg has been smart with his money because his business is about to take a sharp downturn.

  5. robert ethen says: May 15, 2010 3:43 PM

    Steinberg only said about 12 different times that the reason he did not speak earlier is that he assumed there was a valid reason for Cushing’s borderline positive tests and didn’t want to make a big issue of the matter unnecessarily. Which makes emminent sense.
    The standard behaviour when a matter is “before the courts” is not to comment on it. What would you expect Steinberg to do, keep a running commentary on the situation from September to May? Maybe set up a special website to post bulletins on for the benefit of press and public?
    Jesus.

  6. hsf09 says: May 15, 2010 3:44 PM

    It’s all lies! Anything you read or hear from here on out is lies! Not a Houston Media source believes Cushing’s story! McClain is skeptical, Justice already called him out, and so did Solomon. Not to mention other parts of the Houston media.
    First it was a cancer/tumor scare, now it’s a gland issue? Righttt. As you mentioned, if this was naturally occuring in his body, why didnt he test positive again or more often? Ahh lies. Perhaps Cushing/his lawyer/his agent should have gotten together to talk about all this so they dont look so foolish when each one comes out to the media/press saying a different thing. Ooops! Too late for that now.
    Lies, lies and more lies. Nothing more to read into in this Cushing case. He cheated, he lied, he got caught, he now has to find a way to rebuild his image. Even that will be hard to do. How can we believe you when you lied to us in the past?

  7. ctvikingsfan says: May 15, 2010 3:45 PM

    can we just stop talking about this?

  8. wxwax says: May 15, 2010 3:57 PM

    Gosh, a lot of words.
    This one’s under your skin, eh?

  9. robert ethen says: May 15, 2010 4:02 PM

    Whether Cushing juiced or not, it seem quite evident that he was not given anything close to a fair hearing on the matter. In any sort of an objective judgement procedure, Cushing would not have been found guilty if the circumstances are anything close to what Steinberg related. I can’t see that he is just pulling these details out of his ass, someone in the know would call him on it quickly enough.
    Goodell has his agenda, and rightly or wrongly, he has to pursue it, ruthlessly. But what of Black Elmer Fudd, who is supposed to be advocating for his employees? DeMo, DeFour Million Dollar Per Annum simpering gladhander who puts out the Gone For Lunch sign when a white rookie runs afoul of the machinery. Pathletic little bigot.

  10. norton99 says: May 15, 2010 4:02 PM

    So Cushing was barely over the discernible legal limit.I’m confident he’s learned his lesson and his illegal drug use will now be indiscernible.

  11. Deb says: May 15, 2010 4:03 PM

    Faulty processes aren’t corrected because people keep scapegoating individuals. Stop bashing Cushing and think about what the NFL can do to ensure young players don’t willingly take hormones that naturally appear in their bodies only if they have testicular cancer. Suggestions:
    1. As someone posted on another thread, stop calling them Performance Enhancing Drugs. That’s a benign term for substances that increase cancer risk, wreak emotional havoc, and destroy sex drive.
    2. Educate players about why the NFL began banning these substances. Lyle Alzado’s interviews should be mandatory viewing for players starting in high school.
    3. Either determine that HGH is safe and allow it, or find a way to test for it. Don’t crucify Cushing for cheating when half the league is taking HGH.
    4. Legalize OTC supplements available at health-food stores. It’s ridiculous to ban them and more ridiculous to apply equal suspensions to those caught using them and those caught using steroids/hormones.
    5. Immediately suspend any player who fails the test, pending appeal. If you’re convicted of a crime, you sit in jail until your appeal is heard. You don’t just carry on with your life until the appellate court gets around to it.
    6. PENALIZE TEAMS. Right now, the message from teams is “Do whatever it takes; your contract is safe.” Fine teams whose players test positive and the message will be “Don’t do it!”

  12. MasterShake says: May 15, 2010 4:10 PM

    Where was Kato when the glove was found? This saltine is guilty and everyone knows it. What’s next? Is he going to write a book titled “If I did it”?
    By watching him on video, he’s half the actor Orenthal was, and that’s saying something. What it says, I’m not sure.

  13. Gophersnot says: May 15, 2010 4:14 PM

    “A”, “B”, “C”ee ya later……..

  14. Hustla says: May 15, 2010 4:20 PM

    The person that needs to halt the fabrications, speculation and omissions of the truth is Mike Florio.
    You jumped all over this and put yourself out there b4 all the info was out.
    You also left out that Cushing has medical records dating back to USC, including a procedure he underwent, regarding his Pituitary issue.
    Oh and let’s not mention one of the most IMPORTANT FACTS of McClain’s article that at the appeal hearing the NFL presented 2 toxicology experts.
    One testified that there is no way the HcG could form in Cushing’s body naturally. The 2nd NFL provided expert, not Cushing’s, testified that given the info presented by Cushing that the levels of HcG could occur naturally.
    So let’s see. Cushing’s toxicology expert and 1 of the 2 NFL provided tox experts both agree that this could occur naturally. 1 NFL tox expert says it couldn’t.
    That’s 2-1 Cushing. Cushing got shafted. These are facts. Cannot be disputed. One of NFL’s own experts backed up Cushing.
    I think these omissions show exactly where your integrity lies. You are either sensationalizing this to get hits or you are..whatever.
    Florio, you should apologize and then stop these ridiculous and specious arguments trying to cover your won ludicrous accusations.

  15. bill s says: May 15, 2010 4:21 PM

    Ink is about to run out on this story. Bill

  16. FreeAgentPro says: May 15, 2010 4:26 PM

    Why is it that when lawyers lie, they are given credit for their lawyering skill of half-truths and misinformation…

  17. The Wishbone says: May 15, 2010 4:26 PM

    If the NFL cared about drug use, they’d test ALL the players, not just 10 per week. And they’d test them year round, which they don’t even come close to doing. Their system is a joke, so I’ll continue to not respect it as long as it’s so half-assed.
    Brian Cushing is far from a threat to the NFL. All you’re doing is making him more famous. Bob McNair doesn’t care, and he’s paying the guy, so why should anyone else care?

  18. JT2010 says: May 15, 2010 4:31 PM

    Doesn’t matter to me either way, but in the pursuit of hearing both sides of the story you did leave this part of the article you cited out of your posting Florio.
    “We presented our case and our expert testimony,” he said. “Our expert said his low levels were consistent with natural production. There were two NFL experts at the hearing.
    “During cross-examination, I asked the first expert — and the second expert was in the room and would have heard his testimony — and he said, ‘As head of toxicology for the NFL, there’s no way a player can naturally create this substance in their body. I’ve of the opinion that Mr. Cushing had to inject it.’
    “The second expert for the NFL testified, ‘No, I do believe that it can be produced naturally, and I do believe there’s scientific confirmation that a male can naturally produce it.’
    “At that point, I thought this hearing is over. I should win this hearing. Our feeling was that if the two NFL experts are in disagreement, how does the NFL sustain the suspension when their own experts are in disagreement?”

  19. MrHumble says: May 15, 2010 4:36 PM

    Cushing….S. Peyton…William’s boys….AJ Hawk….etc. etc., all liars and cheats. The NFL should declare it permissible to reveal the personal info on a cheat if the cheat wants to tell the world a pack of lies becuz he knows the NFL can’t say anything more due to the data privacy issue. Cushing’s story is the worst by far……everyone knew he was doin’ ‘roids back in high school, throughout college and yet he wasn’t smart enough to figure out with the NFL’s random testing that it was only a matter of time before it caught up with him. Then to try and baffle us with his bullchit….he should be suspended 6 more games for his lies. The other sad part of this entire story is the 18 AP voters who had a second chance to “get it right” and couldn’t. What’s the saying, “fool me once shame on you, fool me twice shame on me”.

  20. aj says: May 15, 2010 4:49 PM

    ctvikesfan, thanks for that 3rd rounder. Ben Tate > Gerhart in the Texans offense, plus they turned that 3rd into a high 4th (LB Darryl Sharpton) and a 5th (CB McManis) in a subsequent trade with the Chiefs. That LB in the 4th will come in handy – even if he’s a Will.

  21. Gailikk says: May 15, 2010 4:53 PM

    Wow, I am starting to believe that these lawyers think we are all morons. This is sick. What a waste of time. The story won’t die because the lawyers won’t let it die. And I truly believe that this may have ruined Cushing’s career. Think about it, if he comes out as completely healthy (which he is), then the NFL will be testing him again. If he is tested and fails, we know he is a drug user. If he quits using steroids, well then he won’t be a pro bowler much longer. Talk about an all time screw up.
    Hey Florio, I also like that I mentioned Occam’s Razor twice on Cushing posts prior to this story, and now you have used it as well. How bout a little love? Mention your thanks to a reader that brought that up. I kid, I kid, I am sure I am not the first person to mention that idea.

  22. ken34 says: May 15, 2010 4:55 PM

    Yeah because we all know how bad you and your journalists buddies would look huh Florio if this turned out to be true? If Cushings condition actually turned out to be true alot of journalists like Mike Florio who trued to hang Cushing earlier instantly look like huge a22holes now. Very big turds if they didnt waite until all information on Cushing was released and they jumped on him early like I suspect Mike Florio was part of.

  23. Florio-is-a-tool says: May 15, 2010 4:58 PM

    ctvikingsfan, here’s an idea to make it easy for you – when you see a headline regarding Cushing, don’t read it.

  24. Deb says: May 15, 2010 5:13 PM

    Faulty processes aren’t corrected because people keep scapegoating individuals. Stop bashing Cushing and think about what the NFL can do to ensure young players don’t willingly take hormones that naturally appear in their bodies only if they have testicular cancer. Suggestions:
    1. As someone posted on another thread, stop calling them Performance Enhancing Drugs. That’s a benign term for substances that increase cancer risk, wreak emotional havoc, and destroy sex drive.
    2. Educate players about why the NFL began banning these substances. Lyle Alzado’s interviews should be mandatory viewing for players starting in high school.
    3. Either determine that HGH is safe and allow it, or find a way to test for it. Don’t crucify Cushing for cheating when half the league is taking HGH.
    4. Legalize OTC supplements available at health-food stores. It’s ridiculous to ban them and more ridiculous to apply equal suspensions to those caught using them and those caught using steroids/hormones.
    5. Immediately suspend any player who fails the test, pending appeal. If you’re convicted of a crime, you sit in jail until your appeal is heard. You don’t just carry on with your life until the appellate court gets around to it.
    6. PENALIZE TEAMS. Right now, the message from teams is “Do whatever it takes; your contract is safe.” Fine teams whose players test positive and the message will be “Don’t do it!”

  25. Bious says: May 15, 2010 5:16 PM

    Steinberg knows that the tumor comment may end up killing any credibility that Cushing had left
    Everyone who has been around him knows that he has been using for years now
    Cushing’s career will soon be DEAD if he is forced to not use drugs to get that edge

  26. JesseJames says: May 15, 2010 5:24 PM

    Brian Cushing will be the punch line to every ‘roid joke from here til the end of time, far surpassing McGwire, Palmiero and every other juicer with their incredulous denials and excuses. If possible, he’s even looking worse than Rocket Roger. The only people more ignorant than Cushing are the morons who post on here in support of his blabbering bullshit.

  27. shaggeez says: May 15, 2010 5:25 PM

    how long have you been waiting to throw occam’s razor into an article

  28. drainthe;izard says: May 15, 2010 5:52 PM

    did anyone actually read all of this?
    a freakin’ novel.

  29. ZombieRevolution says: May 15, 2010 6:16 PM

    A review of the major sports news outlets indicates that they do not share Florio’s “passion” for this incident. There are quite a few real and professional NFL reporters who are not driving this into the ground. Guys that do not feel the need (or have written into their contact) to report on every NFL related and to produce an opinion on everything NFL related.
    By saturation of this story Florio shows that he lacks prospective and is not unbiased in his reporting. But he is getting web hits. So much goes on and Florio is so myopic, but hey unlike us- he is getting paid to o this.

  30. the empire says: May 15, 2010 6:36 PM

    +1 for the occams razor mention!

  31. BatteryChucker says: May 15, 2010 10:46 PM

    Something you keep forgetting Florio, through all of your campaigning and lynch-mob angled posts.
    hCG also can be slightly elevated from an enlarged pituitary gland.
    Cushing has an enlarged pituitary gland.
    This proves that there is at least a reasonable doubt that he did anything guilty on his own or broke the rules on his own, since there is a possibility that it was naturally occurring.
    It doesn’t matter what he says in his presser, it doesn’t matter what he said or did previously, it doesn’t matter what the NFL says, and the fact that the NFL, based on the article just plain ignored this fact shows that there needs to be serious changes in the NFL policies.

  32. RagnarTheBloodAxe says: May 16, 2010 12:46 PM

    Florio, you are spinning as much as Cushing’s lawyer. He brings up some very valid points that you are ignoring, and instead you’re attacking only what you can attack. For example, you mention that Cushing hasn’t tested positive since his lone positive test, which immediately followed a negative test. Well, that’s probably normal considering now that the NFL has another public example they can hang, they don’t need to test Cushing again. Also, you mock the notion that the NFL was “out to get” Cushing, but you know for a fact the NFL did that with the Starcaps case, sitting on the information for years so they could play a game of “gotcha” at will with any players they wanted to, whenever it was a good PR move to do so. My point? Instead of towing teh party line with the NFL, perhaps you should do some objective reporting. Towing the party line is what we expect from the mainstream media, not from bloggers. Has your merge with NBC changed your editorial point of view?

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