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December 9, 2004

The CBA on Steroids

An FAQ on MLB's Drug-Testing Rules

by Doug Pappas

Digging into the BP vault, here's Doug Pappas' Q&A on MLB's drug-testing and steroids policies (originally ran March 4, 2004).

Q. Where can I find a copy of MLB's drug testing rules?

A. They're part of Major League Baseball's Joint Drug Prevention and Treatment Program, set forth as Attachment 18 to the current collective bargaining agreement (CBA). The CBA, in .pdf format, can be downloaded here.

Q. Who administers MLB's drug program?

A. A four-member Health Policy Advisory Committee (HPAC). The Commissioner's Office and the MLBPA each appoint two members, a lawyer and a doctor with expertise in the diagnosis and treatment of substance abuse. If the HPAC deadlocks 2-2 on an issue, the two doctors on the Committee jointly appoint a third doctor to cast the deciding vote. Members of the HPAC serve indefinite terms and can be removed at any time by the party which appointed them, so they're not likely to stray too far from the wishes of their sponsors.

Q. Which drugs are covered by the testing program?

A. Players are forbidden from "using, possessing, selling, facilitating the sale of, distributing, or facilitating the distribution of any Drug of Abuse and/or Steroid." "Drugs of Abuse" include the usual illegal substances (cocaine, LSD, marijuana, heroin, Ecstasy, GHB, PCP); "Steroids" include all anabolic androgenic steroids on the federal Schedule III controlled-substances list. Any substance added to the federal controlled-substances list is automatically added to the banned list, and the HPAC can ban additional substances by unanimous vote. Last year the steroid tetrahydrogestrinone (THG) was added to the list after it was banned by the Food & Drug Administration. The HPAC is currently considering whether to add ephedra, implicated in last year's death of Steve Bechler, to the banned list.

The HPAC also agreed to "encourage Congress to revisit the question" of whether androstenedione should be added to Schedule III. That's already happening: On Tuesday, Rep. John E. Sweeney (R-NY) held a press conference at Major League Baseball's offices to announce the proposed Anabolic Steroid Control Act of 2004. The bill would classify additional substances, including androstenedione, as Schedule III steroids subject to MLB's ban, and would double the criminal penalties for distributing anabolic steroids within 1,000 feet of a sports facility.

Q. How did the steroid testing program operate in 2003?

A. In 2003, all players were subject to two tests for steroids, the second between five and seven days after the first. The Commissioner's Office was also allowed to conduct random testing of up to 240 players. The tests were administered during spring training and the regular season--but not during the postseason or off-season, an omission which brought severe criticism from anti-doping advocates. Players who tested positive for steroids were not subject to discipline. If 5% or fewer of the players had tested positive, this same policy would have been in effect for 2004, but because between 5% and 7% tested positive, future positive results will bring sanctions.

The HPAC is also empowered to order the immediate (within 48 hours) testing of any player whom it has "reasonable cause to believe" has used, possessed, sold or distributed steroids within the past 12 months. "Reasonable cause" isn't defined in the drug policy agreement, but the term is usually interpreted to require a "particularized and objective basis" for suspicion. Specific, credible allegations against a named player might qualify; armchair speculation, or a general desire to "rid baseball of steroids," clearly wouldn't. The March 3 Washington Post reported that MLB may soon seek to invoke the "reasonable cause" provision in response to allegations that Barry Bonds, Jason Giambi, Gary Sheffield, Marvin Benard, Benito Santiago, and Randy Velarde had received steroids from BALCO.

Q. How will the steroid testing program operate in 2004?

A. The testing itself will be conducted the same way: two tests per player, between five and seven days apart, no testing during the off-season. Any player who tests positive will be placed on the "Clinical Track." He will be evaluated by the HPAC's two medical representatives, who will prescribe a course of treatment. The names of players on the Clinical Track will remain confidential. If the recommended treatment program renders the player unavailable to his club, he receives full salary for the first 30 days' absence, half pay for days 31 through 60, and no pay thereafter.

If the player cooperates and doesn't test positive again, that's the end of the matter. If he tests positive or fails to comply with his treatment program, he will be transferred to the "Administrative Track." Once on the Administrative Track, penalties start accruing:

  • First failure to comply with treatment: 15- to 25-day suspension, up to $10,000 fine. A player who complies with his treatment plan but subsequently tests positive for a second time is subject to a 15-day suspension and $10,000 fine. Penalties for subsequent positive tests escalate along the pattern set forth below.

  • Second failure to comply with treatment: 25- to 50-day suspension, up to $25,000 fine

  • Third failure to comply with treatment: 50-75 day suspension, up to $50,000 fine

  • Fourth failure to comply with treatment: Suspension of one year or more, up to $100,000 fine

  • Fifth or subsequent failure: Additional sanctions "consistent with the concept of progressive discipline."

In addition, while MLB won't reveal the details that led to a player's placement on the Administrative Track, it will announce that the player was suspended for violation of the drug program. (Here's the announcement of Josh Hamilton's suspension.)

Q. What about other drugs?

A. The players are not tested for marijuana, cocaine or other illegal drugs. A player who is convicted, pleads guilty or pleads no contest to charges of using, selling or distributing such drugs is subject to discipline as follows:

  • Use of marijuana: No suspension; progressive fines, not to exceed $15,000

  • Use of other drugs:

    • First offense: 15- to 30-day suspension, up to $10,000 fine

    • Second offense: 30- to 90-day suspension, up to $50,000 fine

    • Third offense: One-year suspension, up to $100,000 fine

    • Fourth offense: Two-year suspension

    • Fifth or subsequent offense (the Steve Howe level): Further penalties "consistent with the concept of progressive discipline."

  • Sale or distribution of drugs:

    • First offense: 60- to 90-day suspension, up to $100,000 fine

    • Second offense: Two-year suspension

    • Third or subsequent offense: Further penalties "consistent with the concept of progressive discipline."

Q. Can a player volunteer to be tested more often, if he says he's clean and wants to clear his name?

A. No. The terms of the testing policy were negotiated by MLB and the MLBPA and can't be varied by an individual player. Cynics have suggested that some of the more public "offers to be tested" by players were made with full knowledge that the offer could not be accepted.

Q. Why did the owners have to negotiate the terms of the testing policy with the MLBPA in the first place? Why can't an owner simply refuse to sign any player who won't take, and pass, a drug test?

A. Because an arbitrator ruled against them on this issue in 1986. Before the 1985 season, the Los Angeles Dodgers tried to add a mandatory drug-testing clause to all player contracts. They backed down, but a number of clubs tried again after the season, following the breakdown of talks over a joint drug program. The MLBPA filed a grievance, which was sustained by arbitrator Thomas Roberts on July 30, 1986. Roberts held that drug testing had to be negotiated with the MLBPA, not with individual players.

Q. What could the MLBPA do if a player said he'd pay his own doctor to test him for steroids every week of the season, and authorized the doctor to release the results to the public?

A. During the last labor negotiations, drug testing was one of the few issues which clearly divided the players. Some were willing to submit to regular testing, resenting the implication that by not doing so they must have something to hide. Others, including the MLBPA leadership, viewed the matter as a civil liberties issue: No one should be compelled to, in effect, prove that he's not taking drugs when there's no reason to believe he is. Last March, 16 members of the Chicago White Sox threatened not to take their drug tests, which would automatically have counted as positive tests, in hopes of triggering the penalty provisions. They were talked out of doing so by Gene Orza of the MLBPA.

If a player really wanted to pay for his own drug testing, the MLBPA would lean heavily on him not to do so, fearing that the gesture could effectively gut the drug testing plan by putting intolerable public pressure on other players to follow suit. But if peer pressure wasn't enough, the union couldn't stop him. The union would, however, file an immediate grievance if there was any evidence the player had been pressured by, or received any inducement from, his club or MLB to undergo additional "voluntary" testing.

Ultimately the players control the MLBPA. If a majority of players, meeting behind closed doors, truly want more drug testing, they need only instruct their representatives to negotiate a new agreement. But the louder the Commissioner's cries for broader testing grow, the less likely the players are to accept any such change.

Related Content:  Suspension,  MLBPA,  The Who,  Substance Abuse,  Steroids,  Q&A

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