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November 16, 2005

Under The Knife

The New New Agreement

by Will Carroll

On Tuesday, Major League Baseball and the MLBPA announced an historic re-re-opening of the performance-enhancing-drug section of the Collective Bargaining Agreement. The new terms stiffen penalties, add substances and, as far as we can tell from the public information and from sources, bow to Congressional pressure. Comparing the policy to the MLB Players Association documents detailed here by Tom Gorman, it looks like a complete capitulation.

The question now is, is this it? Have we finally reached a denouement, at least as far as the rulebook goes? Initial documents, including those dug up by Maury Brown of SABR, show that while many will consider this a big step, there are as many questions as answers.

What changed?

The new agreement resets the penalties for the first and second offenses, removes the third stage and moves the "lifetime" suspension to the third offense. The penalties are as outlined in Commissioner Bud Selig's April letter to the MLBPA and notable for their adherence to those marks with seemingly no movement towards the position of the PA. Until the two recent re-openings, the PA was notable for never giving an inch without getting something back on the few occasions when they yielded ground. Last time, it appears that the PA was able to except amphetamines from the testing program, something that many observers would result in a major change to the way the game is played or open the door to significant positive results.

What about amphetamines?

Amphetamines, in this agreement, get their own subsection. While not in the same category as most performance-enhancers, amphetamines are treated more severely than so-called "drugs of abuse," like marijuana and cocaine. Amphetamines, drugs the Commissioner acknowledged as having been in the game since the '50s, will have a set of penalties greater than the "drugs of abuse" but less than the steroid offenses. Most notably, the first offense for steroids puts a player into program of mandatory initial testing, similar to but not identical to the former "administrative track" that required counseling. The testing is a big step, the first real admission that the problem is not only serious, but even extant.

How often will players be tested? Will the testing be random?

The players will be tested a minimum of twice, mirroring the NFL policy. They'll be tested once at their spring-training physical and once during the season at random. There can be more tests, though the draft available did not include a maximum. There does not appear to be a provision that would allow year-round random testing. This is the first major deviation from the proposed Congressional bills and something that critics will point to, though as stated, this is nearly copied from the NFL policy. It would be possible for athletes to use known and testable banned substances during the off-season, then cycle off and, with a known period of clearance, be clean by the test. This is harder, though not impossible, to do with purely random testing. Any period of non-testing would allow those wishing to circumvent the policy to do so.

Who will administer this testing?

The new policy appears to take the responsibility away from the HPAC, the committee jointly run by MLB and MLBPA. The policy obliquely states that an independent party will run the testing and administration. It is unclear if this means that Baseball will take the historic step of turning its testing program over to an Olympic organization like the World Anti-Doping Agency or the U.S. Antidoping Agency, or whether the independent party could mean something like a mutually agreed upon "drug czar." References to using a WADA-certified lab do not give us guidance here. Baseball was already using the Montreal-based Doping Control Laboratory at the University of Quebec for their testing in 2005.

Will there be blood testing?

No, there seems to be no provision for anything beyond urine testing. There could be provisions for blood testing in the "special testing regime" that is prescribed for violators. This means that human growth hormone and the new recombinant versions of growth factors such as Increlex cannot be reliably tested for, though blood tests for HGH are not reliable yet, either. The Congressional bills did not all call for blood testing, though several specifically called for American professional sports to use the Olympic model, which includes blood testing.

Is HGH treated differently?

Actually, no. HGH is still one of the banned substances, but this is like banning me from buying a Ferrari. It's not going to happen any time soon. There is no scientifically reliable test for HGH. This is equivalent to the banning of steroids by Fay Vincent yet not testing for steroids.

Were new drugs added to the banned list?

No, it does not appear that this is the case, beyond amphetamines. Most other performance-enhancing drugs were already listed and "catch-all" language is in place that allows newly discovered "designer drugs" to be added quickly and easily.

Why are there different penalties for distribution?

This is the first mention of this as far as anyone has seen. Some sources feel this was some sort of response to BALCO, though no athlete has been accused of distribution in response to that case. Others see the claim of Rafael Palmeiro getting some credence here. Palmeiro claimed that he tested positive due to tainted B12 he received from teammate Miguel Tejada. There is notably no evidence that this is, or even could be, true. One source noted that there is no provision for turning these cases over to authorities, something Selig has long held as a policy. This may still be the case, but it is not explicit in the policy.

We already have 12 people that tested positive. If they test positive again, will they be on the second offense?

This is a point of contention. One source believes that the change of policy necessitates a "reset" of the violations, while others believe that as with an on-field rule change, the game remains the same, albeit slightly altered. It is impossible to work from precedent. The 11 positive tests in 2004 have never been made public, though it is believed that Congress received these names in their document requests. If one of these tested positive as one of the 12 in 2005, there was no increased penalty. It is hard to believe this would be the case. In the minor leagues, changes in the policy did not reset the offense counter. The only known recidivist at the major-league level is Mike Morse, who tested positive twice in the minors and then once in the majors.

Would someone like Morse still be subject to "chemical double jeopardy" under the new policy?

Yes, it would. Morse's defense hinged on his use of a drug, deca-durabolin, that has a detectable period of between 12 and 18 months. If an athlete took deca or a similarly detectable drug on January 1 and tested positive at his spring-training physical, it is possible that he could test positive again the following spring training even without another dose. Essentially, assuming this player was tested randomly during the season, he could use all three strikes off one dosing. The out clause here might be the Commissioner's discretion and the right to an arbitration hearing before the "lifetime" ban is put into force. (Note that Morse's defense failed in arbitration.)

Is there integration between the major- and minor-league policies?

No, it does not appear that this changes. The policy is the result of collective bargaining, and minor-league players are not members of the union. However, the announced minor-league policy, unilaterally declared by the Commissioner, seems to be equivalent to the new major-league policy. While not integrated, the policies are now more equitable. The horror stories about minor-league appeals may remain.

There's been discussion about "non-analytic positives" in the Olympic arena. What is this and is this possible in the new policy?

This is a serious concern for many athletes. A case related to the BALCO investigation turned up one athlete who, though never testing positive, was declared through "other evidence" to be considered a "non-analytic positive." The case is currently under appeal but the mere suggestion that a case could be brought outside of a positive urinalysis result is chilling. This policy could have been used against an athlete such as Jason Giambi, who admitted to use and who had documentation of his usage. The Congressional bills that called for the Olympic standard opened the door to this type of result. There is no mention of this type of action in the policy as drafted.

What if a player has a valid medical reason for using a banned substance?

While not specifically detailed in the available documents, MLB has a procedure in place for what is called "Therapeutic Use Waivers." The most common TUW is for medication related to ADD. The commonly used drugs are related to amphetamines and widely abused in many sports (as well as by truckers, pilots and students.) MLB required players to get a new prescription for these drugs from an independent doctor, and could ask for a second opinion before granting the waiver. Under the terms of this standing medical policy, players could use banned substances in strictly limited situations. While there are likely many of these waivers, the best known was for Jason Giambi, who was treated with steroids in 2004 to help shrink a tumor.

Does this policy have any sort of "blessing" as the NFL does?

No. The NFL has instituted a policy where it gives it's "blessing" to certain supplements, stating that use of these supplements will not result in a positive test. Many MLB players followed the seal of approval of the NFL, switching to the EAS brand that the NFL initially blessed. MLB does not recognize this and according to sources, this would not be an adequate defense.

Does this fix the extended appeals procedure?

No. The appeals process is actually, in comparison to the Olympics, quite speedy. Palmeiro tested positive in early May and exhausted his appeals by August 1. Matt Lawton tested positive late in the season and had his results announced, after his initial appeal, just after the playoffs. Neither process took longer than 90 days, which compares favorably to some Olympics cases, which can take 18 months. The necessary secrecy of due process gives the illusion of conspiracy, something Baseball must address. It is hoped that the administration of the policy by an independent party may restore some public trust in the process.

Will we know the substance a player tested positive for?

No. This is considered private, both from a medical and from a drug-testing perspective. It is notable that testing this season has not been able to keep this information from coming public. Lawton's tested substance was well known even before his name became public.

Will this get Congress off baseball's back finally?

The answer is a resounding maybe. There are parts of this policy that should placate many of those in Congress. In less than a year, Baseball has gone from no real penalties to severe penalties and public humiliation. On the other hand, the policy does not go nearly as far as the Olympic standard or even the penalties of the recent McCain/Bunning bill that called for half-season, season and lifetime offenses for violations. The policy does not adopt the full WADA list nor does it call for any changes to the record book. Sen. Jim Bunning is already saying this policy does not go far enough, though Rep. Tom Davis is quoted by the AP as saying this "calms the rush to pass a bill."

In the end, we're once again left with as many questions as answers. We don't know whether this policy will be more effective or whether it will be rendered moot by Congressional fiat. Performance-enhancing drugs remain a part of the game and, facing a record-breaking onslaught by Barry Bonds next season, we're sure to hear both sides loud and clear in 2006.

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