In a recent blurb regarding the reported increase in HGH use among NFL players, we suggested that the league isn’t using available legal avenues to compel the NFLPA to honor its 2011 agreement to permit HGH testing perhaps because the league doesn’t really want HGH testing.
Our comment sparked a back-channel discussion with the powers-that-be at 345 Park Avenue, which culminated in a Friday telephone interview with NFL Senior V.P. of Labor Law and Policy Adolpho Birch.
“There is no vehicle we could use that is anything beyond pointless,” Birch said regarding the use of litigation or arbitration to compel the players to honor the existing deal.
Birch explained that the Collective Bargaining Agreement doesn’t specifically mandate testing; it requires negotiation as to the procedures that will be used. At most, then, a grievance filed under the labor deal would result in a ruling directing the NFLPA to negotiate in good faith — something the NFLPA surely believes it’s doing.
Litigation in court isn’t an option, Birch said, given the specific terms of the labor deal.
He suggested that the NFL could file an unfair labor practices charge with the National Labor Relations Board, but Birch pointed out that the process could take longer than it would to negotiate an HGH testing agreement without government involvement. Moreover, compelling the players to submit to testing isn’t the way the league wants to proceed.
“The root of it is that, even if we can force the issue, that is not going to work,” Birch said. “The cornerstone of this policy from 1989 forward has been that the players have understood, appreciated, and bought in to what we’re trying to do. At the end of the day, it’s going to have to be negotiated.”
The problem is that, in the 21 months since the labor deal was signed, little if any negotiation has occurred regarding HGH testing. From the league’s perspective, it’s unclear precisely what the NFLPA wants in return for a commitment to submit to HGH testing.
“A year ago I would say one thing, three months ago I would say another thing, right now I’ll tell you I have no idea,” Birch said.
So we asked the NFLPA what the players want at the present time.
“They will never say it publicly, but they have admitted in their correspondence
with us that the recent ruling by the Court of Arbitration for Sport poses
legitimate problems,” NFLPA spokesman George Atallah told PFT via email, referring to an arbitration ruling that supposedly raises questions regarding the legitimacy and reliability of HGH testing. “We have maintained from the start that a test will be agreed to when there is transparency and reliability of the test and a fair due process to match. We are working to achieve that.”
Some think the NFLPA wants even more, using HGH testing as leverage to secure, for example, outside arbitration on all player discipline issues, and other concessions. Regardless, HGH testing won’t happen until the players decide to embrace HGH testing. The NFLPA ultimately needs to secure buy-in from the players. In turn, the NFL ultimately needs to give the NFLPA enough bells and whistles to allow that to happen.
In theory, the impasse could continue until the current labor deal expires, in 2021. As a practical matter, the players could get more serious about embracing HGH testing if Congress ever does anything more than huff and puff about holding hearings and questioning players about HGH testing, HGH use, and the ways in which players get it.
If that happens, everyone could end up with mud on their shoes. Once players and trainers and doctors and others are placed under oath before Congress, the NFL and the NFLPA lose all control over the final outcome.