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
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.