Marijuana and HGH. There appears to be at least a chance of a tradeoff in NFL enforcement of the two, as the league and union bicker over potential changes in current drug-testing protocols. While marijuana has long been banned and subject to discipline, HGH is perceived as giving players more of a competitive advantage than marijuana, is currently untested and realistically in use to some extent by NFL players without consequence. With ongoing discussions concerning revisions to the drug programs, there is hope a deal can be struck to adapt marijuana discipline to the times while (finally) coming to some resolution on HGH. Based on the NFL-NFLPA history on HGH testing, however, that might be overly optimistic. Let’s examine.
Momentous Announcement … or Not
On Aug. 4, 2011, the official signing of a new 10-year Collective Bargaining Agreement (CBA) was accompanied by another historic announcement: the NFL was to be the first major professional sports league to implement testing for Human Growth Hormone. Coupled with the news of the end of a convoluted lockout and the re-starting of football, the NFL and its players—caught up in the horse-trading in the frantic conclusion of CBA negotiations—announced this bold step to curb the use of a drug creating, at some level, artificial and unfair advantages for players.
As I often say: that was then, this is now. Nearly three years since the announcement, HGH is not a banned substance in the NFL. In the meantime, Major League Baseball and its players association agreed to HGH testing in January 2013, becoming, in actuality, the first major professional sports league to ban its use. As to the reasons for lack of implementation over these three years, the NFL and NFLPA give the exact same response: “Blame them!”
The NFL’s implementation of HGH testing has always required union consent, which has proved more difficult than envisioned. The arguments and delay on HGH testing has been a microcosm of the palpable lack of trust between NFL and NFLPA leadership before, during and now after the CBA negotiations.
Until recently, the NFLPA’s primary opposition to proposed HGH testing had been the samples of population studies used for thresholds. The union objected to such thresholds traditionally used by the World Anti-Doping Agency (WADA), maintaining they were designed with more slender body types in mind, such as Olympic athletes, and would lead to an abundance of false positives applying to the musculature of elite professional football players. After much haggling, the NFL allowed for different population sampling, removing that hurdle and resolving the NFLPA’s concerns about the population study.
So … what’s the issue?
The Conduct Commissioner
We have arrived at a déjà vu moment in NFL-NFLPA labor relations: debating commissioner power over player conduct.
Once the totality of the new drug-testing program is implemented, there will not only be HGH testing but also an independent arbitrator handling appeals for positive samples, chain of command protocols, ratios triggering positive tests, etc. However, for behavior surrounding the testing, Commissioner Roger Goodell will not relinquish appeal power.
Examples of such misbehavior could be actions similar to those alleged against MLB’s Alex Rodriguez—bribes for incriminating evidence in the Biogenesis case—or those alleged against Denver’s Von Miller and dealings with a corrupt sample collector. Goodell is insistent on retaining appeal power over cases such as this, more about conduct than science. And no word defines the tenure of Goodell more than “conduct.”
With measures such as the Personal Conduct Policy, Goodell has made it his mission to impose his somewhat pristine yet sincere belief that NFL players (and owners, with all eyes now on his pending treatment of Jim Irsay) have a higher moral obligation. Goodell once told me: I’m willing to give up the appeal power over drug testing, but not over conduct. That rings true now.
NFLPA officials have tried before, during and since the 2011 CBA to curb Goodell’s conduct powers. I remember one top union executive telling me Goodell had “jumped the shark” with overreaching player discipline. However, that bargaining priority was sacrificed to make gains elsewhere. Now the union, using the leverage of the NFL’s long-desired HGH testing, attempts to do what collective bargaining could not: limit commissioner power by removing him from all drug-testing appeals, even conduct-related.
Bridges to Resolution?
While tempering any optimism with the reality of a proven lack of trust between the two sides, it is encouraging that the NFL and NFLPA have opened discussions to adjust/amend/revise the drug policies. Here are a couple of areas ripe for change with potential for concession and compromise. They are:
NFL standards are stricter than those in other sports as well as those in other professions, and ESPN reported on a potential willingness by the league to raise thresholds for a positive test. The societal stigma of marijuana use is also slowly dissipating, with legalized use in Washington and Colorado—home of this past season’s Super Bowl participants—and growing tolerance nationwide.
However, the NFL is not as progressive as the state legislatures of Washington or Colorado. And while Goodell gave a glimmer of hope to potential therapeutic use of medicinal marijuana in a January interview, his tone changed dramatically at the Super Bowl press conference. NFL players will not be freely lighting up anytime soon.
Perhaps, however, there exists an opportunity for a trade here: the NFL loosens thresholds and/or penalties for positive marijuana tests in exchange for the NFLPA agreeing to the final issue regarding HGH testing: Commissioner appeal power over conduct-related issues.
While potential resolution is more complicated than the above deal, it presents a bridge to resolution.
While there is a sense the NFL might relax penalties on marijuana use, an opposite sentiment is growing on use of alcohol when driving. Pro Football Talk reported that another issue in play with the revised drug policies involves first-offense DUI offenses. Currently, the policies call for a two-game fine—and no suspension—for a first-offense DUI, with suspensions rare except for repeat offenders. A proposed rule would impose a one-game suspension for a first-time offense.
After the tragic accident in December 2012 that killed Cowboys practice squad player Jerry Brown, a passenger of his drunken teammate Josh Brent, this is an issue meriting greater attention. And it seems to have bilateral support from both the NFL and the NFLPA amidst the swirl of policy revisions on the table.
Another potential passage to change might come from discussed changes in situations like the recent suspension of the Colts’ Robert Mathis. In a rare diversion from its usual silence regarding drug suspensions, the NFL responded to public comments from Mathis and his agent regarding his sympathetic situation. The league responded by noting that the drug policies were collectively bargained by the league and the union and called for consistent enforcement, no matter the individual circumstances.
NFL executives privately express frustration that players and agents can openly discuss positive test circumstances while the league is restricted due to confidentiality limits. They would like to even out the public message.
Similarly on the issue of confidentiality, the NFLPA has concerns about negative information leaks. Specifically, they have alleged, “bad-mouthing” by teams on players such as Josh Freeman (Buccaneers) and DeSean Jackson (Eagles) and have investigated, although with nothing further announced.
In this combustible mix of information and potential improved transparency, perhaps a mutually beneficial result could ensue.
As I often say, everything’s negotiable. Changes could be afoot regarding treatment of HGH, marijuana and drunk driving, as well as revisions in the strict confidentiality guidelines for both sides. Maybe by the third anniversary of the announcement of HGH testing, on August 4, 2014, we will actually have it implemented. Maybe.