Nearly a month removed from a meeting with two members of Congress that resulted in an apparent commitment to commence the collection of blood samples for the purposes of HGH testing, the NFLPA has made a proposal regarding an HGH testing protocol.
Details of the proposal are contained in an item posted at ProPlayerInsiders.com, an official licensee of the NFLPA, which means that it’s essentially an annexation of the NFLPA website.
In a press release masquerading as an article, the NFLPA proposes that the process commence with a population study of all NFL players, in order to establish an HGH testing standard that accurately reflects the naturally occurring HGH in the bodily composition of NFL players. This goes back to the union’s concern that the World Anti-Doping Agency has developed its testing threshold based on the constitutions of Olympic athletes, including Estonian figure skaters, Korean gymnasts, and Canadian curlers. (Of course, a population study of NFL players that includes players who are currently taking HGH will skew the numbers, potentially creating a higher threshold.)
The union also proposes six major points: (1) “Any player found in violation of the hGH policy has the right to all of the testing information”; (2) “The burden of proof rests with the NFL, not the player, as in the American judicial system where the defendant is presumed innocent until proven guilty”; (3) “The hGH testing process will be overseen by a neutral arbitrator agreed to by the NFL and by the NFLPA”; (4) “That no player shall be punished by NFL Commissioner Roger Goodell until all of his appeals have been exhausted”; (5) “The testing and appellate processes shall be confidential until the player’s appeal rights are exhausted”; (6) “Players who are in the midst of the appellate process remain on their teams and continue to play until it has concluded.”
Under pre-existing drug policies, the final three points already apply. The third point, regarding the use of an independent arbitrator, shouldn’t be an issue, especially if the NFL has contemplated turning over the keys to the entire testing program to WADA. The first point likewise shouldn’t be a major bone of contention.
The only potential problem applies to the second point, since the NFLPA tries to graft the constitutional protections against the deprivation of liberty onto a private administrative process. If, as Saints quarterback Drew Brees characterizes HGH testing, it’s a “joint program” between the league and the NFLPA, the NFL shouldn’t bear the burden of proof. Instead, the process should be about finding cheaters, and the NFL and the NFLPA should be working together hand in hand to deter and detect HGH use.
They’re not. Even after the signing of a 10-year labor deal, the primary hurdle remains a fundamental lack of trust between the parties, making it harder to have a true partnership when it comes to drug testing. The article/press release accurately points out the StarCaps case, in which the NFL inexplicably withheld from the players specific information regarding the presence of a banned diuretic in an over-the-counter supplement. Given the league’s behavior in that case, how can the NFLPA trust the league when it comes to drug testing?
But the NFL also may have trust issues with the NFLPA, arising from the union’s stubborn refusal to honor its agreement to conduct HGH testing. In this regard, the article/press release badly distorts the language of the Collective Bargaining Agreement, creating the false impression that no agreement on HGH testing has been reached.
Quoting the contents of Article 39, Section 7(b), the article/press release omits the union’s commitment to HGH testing by claiming that the parties agreed to “discuss and develop . . . the safe and secure collection of samples, transportation and testing of samples, the scope of review of the medical science and the arbitrator review policy.” (Emphasis added by the article/press release.) This implies that the NFLPA had agreed only to eventually “discuss and develop” the procedures for testing.
The actual language of Article 39, Section 7(b) paints a much different picture: “The parties confirm that the Program on Anabolic Steroids and Related Substances will include both annual blood testing and random blood testing for human growth hormone, with discipline for positive tests at the same level as for steroids. Over the next several weeks, the parties will discuss and develop the specific arrangements relating to the safe and secure collection of samples, transportation and testing of samples, the scope of review of the medical science and the arbitrator review policy, with the goal of beginning testing by the first week of the 2011 regular season.”
The selective quoting of the key terms of the CBA undermines the entire article/press release, and it will do nothing to keep Congress from concluding that the NFLPA is merely dragging its feet. Hopefully, the players realize that Congress eventually will be putting several of them under oath to find out the extent to which HGH is being used. Hopefully, the NFL realizes the damage that a full-blown investigation could do to the best interests of the game. To avoid that harm, the NFL should attempt via any available legal means to compel the NFLPA to honor the full content of Article 39, Section 7(b), and not just the narrow portion that the NFLPA saw fit to quote in its press release masquerading as an article.
Absent meaningful steps to get HGH testing in place sooner rather than later, both sides will eventually regret that they didn’t do more to work this out on their own.