Understanding the lag between sample collection and suspension

We (and others) have been hammering away at the protracted delay between the collection of Brian Cushing’s hCG-tainted urine sample and the finalization of the decision to suspend him for four games.  Though an eight-month lag between sample collection and suspension seems to be, on a “know it when you see it” basis, far too long, a certain amount of delay is inherent to the process.

As we summarized the overall flow of the events in a recent item for SportingNews.com, “From the collection of the urine sample to the testing of the sample to
the verification of the positive result to the notification of the
player to the exercise of appeal
rights to the scheduling of the appeal hearing to the possible
rescheduling of the appeal hearing because of the specific calendars of
the persons who need to attend to the submission of post-hearing written
briefs to the deliberation over the information to the preparation of a
letter upholding the appeal, several months quickly can pass.”

And here’s an important point to keep in mind as to the commencement of the process in Cushing’s case:  the sample was collected in September.  It’s our understanding that, depending on the item found when the first sample — the “A” sample — is screened, the confirmation test on the second sample — the “B” sample — can take some time.  In some cases, it can take up to two months to reach the conclusion that a banned substance appears in a given sample.

Then, once the player is notified that a positive test has been confirmed, the process essentially becomes a legal proceeding.  Indeed, ESPN’s Chris Mortensen said during Wednesday’s NFL Live that Cushing has spent more than $20,000 in legal fees during the appeals process.

“It’s not unusual for some cases to take a lengthy amount of time from specimen collection through the appeals process and the announcement,” NFL spokesman Greg Aiello said in a statement that we received via e-mail this morning.  “All of the time periods and protocols in place are designed to ensure that the result is accurate and the player has every appropriate due process protection.  Requirements such as notice, independent verification, additional investigation, hearing rights and lab procedures ensure these objectives, but they also add steps and time.”

Lawyer David Cornwell, who has represented many players in these proceedings, agrees that the process takes time — and he believes that the process should not be rushed.

“Out of all the issues that need to be addressed regarding the terms and
application of the NFL’s Steroid Policy, the timing of Cushing’s appeal is
pretty far down the list,” Cornwell tells us via e-mail.  “The last thing the NFLPA and NFL should do is allow a partially informed
media and ill-informed third party ‘experts’ drive the application of the
Policy.  The most important fact in Brian’s case is that, apparently, the
Policy worked.

“There continues to be an insidious distinction between the man who plays
football and the football player that tends to drive debates like this one.  Brian had the absolute right to exhaust his appeal rights.  In so doing, if
awards and other collateral issues were impacted, so what?  This is not a
perfect world.  When these imperfections arise, it is untenable that an
effort to correct them almost always contemplates eroding the rights of the
men who play the game.  Why should appeal rights for NFL players be any
different from those in other working place-testing programs?

“From poor communication between the parties regarding specific procedures
under the Policy to disclosure issues, confidentiality issues, and the
troubling interplay between ‘strict liability’ and the continuing practice
of unregulated supplement manufacturers to intentionally lace products with
prohibited substances to improve product performance and steal market share,
there are plenty of issues that need to be addressed before anyone gets
bogged down with timing issues for appeals.

“In Cushing’s case, the testing process worked.  The appeal process worked.
If there is collateral damage along the way, so be it.”

Still, should the process require eight months?

“It is rare that appeals take that long,” Cornwell said.  “But, when they do, it is rare that it is
not legitimate.  So, it does not make sense to change the Policy and impact all
appeals to address the rare instance when an appeal is just gaming the process.
I don’t represent Cushing but I had an appeal last year where there was a
follow up evaluation process that took months because that what medicine and
science required.”

Though we continue to be reminded of the notion that “justice delayed is justice denied,” we suppose it’s better for the league to take the time to get it right than to fail to catch cheaters at all — or to suspend men who should not have been suspended.

Still, good luck persuading the average fan that eight months isn’t too long from collection to suspension, especially when anti-doping experts claim that such a lag “makes a mockery” of the process.

Perhaps the answer comes from the confidentiality of the program.  We’ve suggested that, once the suspension is finalized, all relevant information should be disclosed.  If the disclosure includes an explanation of the reason for any delays, the criticism may be softened.

28 responses to “Understanding the lag between sample collection and suspension

  1. Why don’t you ask the Golden Boy Pete Carroll what he knew about this Cuching kid?
    Wouldn’t that be Real Journalism?
    Wouldn’t Carrol know that this dude is showing up with an extra 50lbs of muscle that something might be going on? And now he’s a goddamn Head Coach in the NFL?
    I doubt you would Mike, this site is owned by GE/NBC, which is closely linked with the NFL. Don’t want to get too inquisitive Mike. It’s easier to gossip about sex and stuff, and it’s good for the NFL, more salacious stuff gets press.

  2. let it go man,does anybody really care,is this what happens when there are lack of strories in the nfl,you guys just harp on stuff,beating a dead horse

  3. This is somewhat like the criminal justice system. The emphasis is on the process not the outcome. If a guilty man is freed, or an innocent man is imprisoned(far less likely) so be it. As long as the integrity of the process is upheld, all is considered good.

  4. They should make the appeal process public. At least give the opposing fans something to rag about.

  5. LET IT GO!
    What a pair of whiners, sheesh.
    Maybe if you hold your breath until you turn blue … that’ll show everybody!

  6. “The last thing the NFLPA and NFL should do is allow a partially informed media and ill-informed third party ‘experts’ drive the application of the Policy. The most important fact in Brian’s case is that, apparently, the Policy worked. ”
    That means you Florio. He was talking about you. Let it go. Just let it go. I know you won’t. Hopefully we get the TRUTH today at Cush’s presser. Either way just let it go.

  7. Stick your award Cushing!! Hope you grow bitch tits and your scrotum ends up the size of grapes!!

  8. Unless I’m wrong about the timing, Cushing was notified and filed his appeal in February. That means it took 5 months to:
    1. test sample A
    2. receive the results that there is an illegal substance in Sample A
    3. test Sample B
    4. get results that there is an illegal substance in sample B
    5. notify Cushing that he failed the drug test.
    The legal BS that you expound upon above ALL happened AFTER Cushing received his suspension letter. Who cares if Cushing spends $2Million defending his character… he cheated, got caught after extremely lengthy delays in the testing process, and is now exposed.
    “In some cases, it can take up to two months to reach the conclusion that a banned substance appears in a given sample.” This means it took Goodell 3 months to type a suspension letter… thanks Roger for maintaining the NFL’s integrity.

  9. The unfortunate difference is: THERE IS A DISPARITY BETWEEN THE WAY IT SHOULD BE AND THE WAY IT IS.
    Usually good organizations eliminate that disparity and correct the issue. If a sample was collected and tested back in September, then there is no reason punishment can’t occur immediately.

  10. I think you are greatly exaggerating the amount the average fan cares about the length of time between detection and announcement of the suspension. As for disclosure, it seems to be in your best interest for disclosure to be earlier to generate additional stories.
    I don’t believe this applies in Cushing’s case but a false positive, which there are bound to be some, will cause a disproportionate amount of damage to a player’s career, earnings and prestige, possibly even costing him a chance at the HOF. A delayed announcement and more thorough appeal process limits this possibility. I doubt you care but in this instance a players rights seem more important than your preference.

  11. Quit giving the average fan too much credit. A lot of them have had a DUI charge or worse so they know all too well how the legal process can be drawn out.

  12. I really don’t care about the lag.
    The thing that makes absolutely no sense to me is the whole re-vote thing for the DROY award. They recognize that the winner cheated. They go to the trouble of having a re-vote and then they make it possible to re-vote for the cheater. Why was Cushing even on the second ballod? Why was it even possible to vote for him again? CRAZY! Meanwhile, we are telling every highschool kid that it’s not only OK to use steroids, but you can use them, get caught, and win a god damn award. Great job AP!

  13. “The last thing the NFLPA and NFL should do is allow a partially informed media and ill-informed third party ‘experts’ drive the application of the Policy.”
    To use a South Park reference, you got f’d in the a.
    southparkchickendance.youtube
    P.S. Leopold Stotch

  14. Let us not forget that Cornwell is a defense attorney for cheaters, and lengthy delays drive his fees. He is not financially motivated to shorten the process in any way. It is the NFL that should be motivated to hasten the process – I would like to hear what an NFL attorney has to say about delays that might be caused by cheaters’ attorneys like Cornwell.

  15. Yeah, you really need to let this go, Florio. You clearly have some sort of personal stake in this issue. Whatever it is, take care of it and then let it go.
    Cushing ingested something he wasn’t supposed to ingest. He appealed. The appeal was denied. Now he’s being suspended. There’s no great injustice.
    Let it go.

  16. “Still, good luck persuading the average fan that eight months isn’t too long from collection to suspension…”
    For the average fan, who is pretty locked in on game day but the rest of the week has their life to worry about- there is little to no concern.
    For bloggers with a miopic view of the NFL and bloggers who need to generate 20+ NFL-related posts daily this is a REALLY serious issue.

  17. You had to know that if a situation got complicated a lawyer was involved somewhere

  18. Blah, blah, blah… If I can get a DNA analysis test at Walgreens, then the NFL can take less than eight months to bring this case to conclusion!

  19. Hey Florio,
    Cushing STILL got voted defensive rookie of the year.
    You lobbied to prevent it, so enjoy the sour grapes and humble pie, bitch.
    Scoreboard:
    Cushing: 1
    Florio: 0
    LET’S GO TEXANS

  20. Still, good luck persuading the average fan that eight months isn’t too long from collection to suspension, especially when anti-doping experts claim that such a lag “makes a mockery” of the process.
    ********************************
    Many years ago, the military sent its batch of urine tests to its various labs and because of circumstances with one lab, every test came back positive (and so did the re-tests) and they were all processed for discharge. Now, while it would set off a ton of red flags today for all those tests to come back bad, it didn’t back then and it was only when all the notification of discharges hit Washington that they realized that something was wrong but by the time that they figured it out, a lot of men and women were sent packing and they had to scramble to get them back after they realized that there was a problem.
    The anti-drug sentiment back then was so strong that they wanted to get the users out of the military as fast as possible and it backfired on them (In fact, it cost our commanding officer his cushy assignment because he held an open mast and raked one guy over the coals and called him every name in the book and then when he was told that the tests were wrong, he refused a direct order to apologize to the guy and it was goodbye cushy assignment and hello, Indian Ocean cruise).
    When you try to shorten the process, you end up shortchanging the process. People want to shorten the appeals process today and yet, you find that guys are being exonerated by DNA testing and if they had been rushed through the system like some people want, the best that anyone could say was “Oops, looks like we were wrong” because you can’t bring back an innocent corpse.
    In the end, the ONLY thing that shortening the process MIGHT do is make voters for an award aware of the guy’s guilt before they vote. It won’t change whether he will be ultimately suspended or lose bonus money. If anything, why not make the voters slow down and wait to do their voting until just before the draft and announce after it. With the exception of the Pro Bowl, that should give everyone plenty of time and really, does the Pro Bowl matter that much?

  21. Why not have a tiered suspension system to keep those who are clearly guilty and know it from appealing? If a player is told he’s suspended 4 games immediately or he has the right to appeal, but a failed appeal will add an additional 2 games to his suspension, it might make a guilty guy think twice about appealing just for the sake of appealing. Even with a $20k legal fee, it’s chump change to a guy who’s getting over $10m guaranteed.

  22. Didn’t read this ’cause of my ADD.
    Typing with two fingers.
    Keep’em short’n snappy please

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