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September 28, 2005

Three Strikes and You're...Given a Fourth Strike

The Players Association Responds

by Thomas Gorman

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On Monday, MLBPA Executive Director Don Fehr publicly responded to Commissioner Selig's call for a more stringent testing and discipline regime to combat the use of Performance Enhancing Drugs (PEDs) in Major League Baseball. The compromise suggested by Fehr, and the earlier proposal for a stricter program by the Commissioner, still disagree on crucial points.

The Commissioner's proposal was made in a publicly-released April 25th letter to Don Fehr. In that letter Selig suggested five substantive changes to the current Joint Drug Agreement (hereafter called the Agreement for brevity's sake), agreed to in January of 2005.

  1. The Commissioner proposed that punishments increase to 50 games, 100 games, and a lifetime ban for first, second and third offenses from the previous schedule of 10 games, 30 games, 60 games, and one year for first, second, third, and fourth offenses.

    Note that under the current regime a lifetime ban for a fifth offense is not enshrined in the language of the Agreement, but is instead understood to emanate from the Commissioner's authority to "impose discipline consistent with the notions of just cause" and to impose penalties for further positive tests "according to the principles of progressive discipline"; Rob Manfred, MLB's Executive Vice President for Labor Relations & Human Resources confirmed this understanding in public comments to the media on January 13th.

  2. The Commissioner proposed the re-categorization of amphetamines from "drugs of abuse" (like cocaine and marijuana) to "performance enhancing drugs." Such a re-categorization would make a positive amphetamine test result no different from a positive result for any other PED as far as the punishment is concerned. Under the current system positive tests for "drugs of abuse" put a player into a "Clinical Track" counseling program.

    But more critically, under the current policy, a person only gets dropped into the counseling program if they are somehow publically shown to have used a Drug of Abuse (e.g., getting arrested for possession). In some cases the Health Policy Advisory Committee (HPAC) can compel testing with just cause, but that is extraordinarily rare. By shifting the drug to the PED category it would be regularly tested for with random urinalysis of every player.

  3. The Commissioner proposed increasing the number of random tests in the program. Under the current Agreement there is at least one test for each player during the season as well as random testing (during the season and/or off-season) with no maximum number of tests per year.

    Note that this is starkly different from the Olympic testing regime, which is truly random. Under the Olympic program there is no mandatory test for each athlete (some are tested many times, some not at all).

    Public comments by both MLB and the MLBPA indicate that under the current Agreement there are 1,440 suspicion-less tests that take place each year (more can be administered on specific players if HPAC decides there is just cause). Since there are at least 1,200 players on Major League 40-man rosters every year, that leaves few secondary tests.

    Details on the exact numbers of tests conducted under the current policy are extremely difficult to obtain. Anecdotal reports from players' comments to the media often indicate that players are tested two to three times a season (some players have reported as many as four tests already this year), though the logic of Fehr's letter makes it nearly impossible for the vast majority of players to receive more than one or two tests. Representatives at MLB indicated that perhaps the confusion over how many tests are given every year is intentional, to prevent players from knowing when the league is near their max, and hence, players are no longer likely to get hit with a random urinalysis.

  4. The Commissioner suggested replacing HPAC as administrator of the testing program with a jointly-selected independent expert. Under the current Agreement the collection of samples is conducted by an independent firm and the testing occurs at an independent lab (a WADA-approved facility in Montreal) but HPAC supervises both of those independent agencies and administers the protocols of the testing program (who gets tested and when, etc.).

  5. The Commissioner proposed changing language in the Joint Drug Agreement that called for both MLB and the MLBPA to fight a "governmental investigation" relating to the "drug testing of Players." This language was inserted on the basis of fears that the confidentiality of player test results could be broken by a government subpoena (concerns based on a U.S. Attorney's attempts to do exactly that in the BALCO case in California).

Fehr wrote an initial response to Selig's proposal on May 1st (in which he suggested that no changes were necessary as the current policy was "working well"). A substantive counter-proposal didn't arrive until this week. The letter comes at the end of months of negotiation between the two sides, and contained the following substantive points:

  1. The MLBPA agrees to increase the number of tests to 3,000 total. Each player would be tested once at the beginning of spring training to discourage off-season PED use, and at least once more at some random date (during the season or during the off-season). In addition to the two mandatory tests per player Fehr agreed to the Commissioner's suggestion of 600 additional tests to be applied randomly to any player (to ensure that no player felt he was safe for the rest of the year following a second or third test). MLB and the MLBPA are close to an agreement on this point.

  2. The MLBPA agrees to move the administrative authority for the program from HPAC to a "jointly-selected independent expert." This signals an agreement with the Commissioner's proposal, though details are still far from final.

  3. The MLBPA agrees that a "Congressional request for summary information about our testing results does not jeopardize our program." MLB and the MLBPA are close to an agreement on this point.

  4. The MLBPA agrees to include amphetamine testing in the random urinalysis conducted for PEDs, and to include punishments for amphetamine abuse, but not necessarily on the first offense. Fehr's letter proposes mandatory "additional testing for first-offenders and serious suspensions for repeat offenders." MLB and the MLBPA are close to an agreement on this point as well.

  5. The proposals differ radically in the entirely different schedule of punishment that Fehr suggest be used instead of the Commissioner's 50/100/Lifetime proposal. Under Fehr's counter-proposal the schedule of punishment would proceed with default penalties of 20, 75 and "such discipline as you believe appropriate, including a permanent ban, provided that it is consistent with just cause and subject to arbitral review."

    The default penalties are not mandatory, though. For a first offense the Commissioner can impose a penalty as high as 30 games "where the Commissioner deems it appropriate," while the player can ask an arbitrator to lower the penalty to as few as 10. According to the same logic the penalty for a second offense can be as high as 100 games, or as low as 50 games. This sliding scale system appears to descend from the most recent MLB proposal, in which the Commissioner's office backed down from their proposal of a mandatory 50-game penalty for a first offense, and instead suggested a presumptive penalty of 50 games with a possibility of as many as 60 games or as few as 40.

    There is no mention of exactly what types of circumstances would be considered aggravating or mitigating.

    Fehr's letter plainly states that "our principal remaining disagreement is the penalty to be imposed for an initial positive test for steroids," though in the wake of the letter's publication, MLB spokesperson Rich Levin criticized the MLBPA's "three strikes and maybe you're out" proposal.

As New York Times columinst Murray Chass pointed out in a recent article, the stalled negotiations between the two sides creates an interesting game of chicken, as a stalemate could spur Congress to move forward with federal legislation requiring more stringent penalties for PED abuse. Senator John McCain (R-AZ), Congressman Tom Davis (R-VA), and Congressman Henry Waxman (D-CA) have proposed a mandatory testing regime for all American professional sports in the Clean Sports Act of 2005 (text here, summary here). The Clean Sports Act would require the adoption of the list of prohibited PEDs included in the Olympic Anti-Doping Code (which includes amphetamines, illegal hormones, and blood and gene doping, in addition to steroids and their precurors), as well as minimum two-year penalties for a first offense and a lifetime ban for the second.

It is unclear how negotiations between MLB and the MLBPA to amend the current aggreement will proceed. Details still need to be hammered out on the four major points that the two sides seem to have settled in principle, and much disagreement remains on the controversial schedule of penalties.

Related Content:  Don Fehr,  MLBPA,  A's,  Olympic Games,  PED,  Language

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