The four and a half month-long lockout of the NFL’s players by the owners is a receding memory. The exciting 2011 season is in full swing. However, testing for human growth hormone remains an unresolved issue from the 10-year collective bargaining agreement that was signed in July.
“We agreed to an hGH testing protocol that was safe, one that would be reliable and one that would be that would protect the due process rights of the players,” said National Football League Players Association Executive Director DeMaurice Smith. “No one is going to force us into a situation where we don’t accomplish those three things.”
While the NFLPA is committed to player health and safety, a fair and transparent testing protocol is also necessary to maintain the integrity of the game and the due process rights of its players.
In Article 39, Section 7 (b) of the CBA, the NFL and NFLPA agreed to “discuss and develop … the safe and secure collection of samples, transportation and testing of samples, the scope of review of the medical science and the arbitrator review policy.”
With the NFL and NFLPA unable to come to an agreement on these issues, representatives of both sides were called to Capitol Hill on Oct. 14 to meet with Congressman Darrell Issa (R-Cal.) and Elijah Cummings (D-Md.). A league spokesman claimed that meeting produced an agreement to begin specimen collection – but not testing or punishment — on Oct. 23, but the NFLPA maintains that several critical issues need to be resolved. Hence, the entire testing system remains on hold.
One major issue is the lack of transparency at the World Anti-Doping Agency (WADA), the only group that has developed an isoform test for exogenous (non-naturally occurring) hGH which, unlike naturally occurring HGH, can be injected into the body.
WADA has adamantly declined to provide population and validation studies, and its test radically differs from those for other performance-enhancing drugs because if a blood sample surpasses a predetermined hGH limit, it’s declared a positive without allowing for a naturally occurring result. And yet, the NFL’s proposed appeal process bars players from challenging the science behind WADA’s test which has been in use for less than two years, not long enough to be certain that it has not generated false positives.
Dr. Martin Bidlingmaier, who developed the hGH test that WADA uses, has outlined his concerns about false positives, noting that large studies in different groups are needed to offset “a high degree of naturally occurring variation within or between individuals.”
Bidlingmaier went on to list such factors as gender, age, body composition and injury, type of sport and dietary regime and the effects of “acute and chronic exercise.” He added that the decision limit must be “based on ratios obtained from a suitable reference population.”
NFL players unquestionably constitute a population who engage in “acute and constant exercise.” So the NFLPA wants players to have full access to the makeup of the testing population from which blood samples were obtained in order for WADA to set the decision limit.
“The Players have always wanted a clean game, but we also demand a fair process,” said Washington Redskins Pro Bowl linebacker London Fletcher, a 14-year NFL veteran. “This way we know the standards against which we will be measured.”
“We took the time to understand the test, recognize the lack of transparency from WADA and propose a solution that is fair and good for the game,” said Denver Broncos Pro Bowl safety Brian Dawkins, a member of the NFLPA’s Executive Committee.
The Players’ proposal includes an independent administrator, medical director, chief forensic toxicologist, medical advisor and arbitrators rather than the Commissioner’s designees for drug policy. Those appointees were found by a judge to be “not credible” and “played a game of ‘gotcha’” during the StarCaps case. That intentional behavior by League officials resulted in “manifest injustice” when crucial information was purposefully withheld from players.
According to a just-released statement from the NFLPA, “The Players of the National Football League are unequivocally committed to ensuring that football is played by men who do not use performance-enhancing drugs. The health and safety of the Players, maintaining the integrity of the game, and utilization of a fair system to ensure the integrity of the game are unquestioned priorities for the Players. In order to resolve important issues related to lack of scientific data behind the WADA isoform hGH test, the Players will propose a comprehensive hGH testing program that begins with a population study of NFL players to establish a test standard that accurately reflects the population of NFL players.
“Additionally, the Players’ comprehensive proposal on policies for performance-enhancing drugs and substances of abuse makes sweeping changes to protect the integrity of the game and due process rights of the Players. Independent scientists, medical professionals and arbitrators will provide independent expertise at each step to ensure achieving the goals of a drug-free game and due process for the men who play the game. The Players look forward to advancing the quality of joint NFL-NFLPA drug policies to protect the health and safety of the players and the fairness of professional football.”
Smith further explained the proposal that the NFLPA will offer to the NFL to resolve their differences on hGH testing.
“It will protect the due process rights of our players by making sure that every player who tests positive has full access to all of the information, all of the data against which they are being judged to have violated the hGH policy,” he said. “For a group like WADA to continue to withhold the critical documents that demonstrate the standard against which a player is going to be measured is unacceptable.”
New Orleans Saints Super Bowl-winning quarterback Drew Brees, a member of the NFLPA’s executive committee, noted that the Players and NFL officials are in this together.
“This is our joint program, not just the NFL’s,” Brees said. “The Players have proposed a comprehensive program that is both fair and protects the integrity of the game.”
The NFLPA’s new proposal makes six major points:
- Any player found in violation of the hGH policy has the right to all of the testing information
- The burden of proof rests with the NFL, not the player, as in the American judicial system where the defendant is presumed innocent until proven guilty.
- The hGH testing process will be overseen by a neutral arbitrator agreed to by the NFL and by the NFLPA.
- That no player shall be punished by NFL Commissioner Roger Goodell until all of his appeals have been exhausted.
- The testing and appellate processes shall be confidential until the player’s appeal rights are exhausted.
- Players who are in the midst of the appellate process remain on their teams and continue to play until it has concluded.
“As players we understand our obligations,” said Arizona Cardinals All-Pro receiver Larry Fitzgerald. “This proposal gives our players and fans security to protect the integrity of the game and gives us players the level of fairness and due process that we deserve.”
The latter point is one that Smith hit home forcefully.
“In the past, players have been punished for doing what was right,” Smith declared. “That’s unacceptable. The National Football League, historically, has been long on punishment but short on due process. That is unacceptable.”
And Smith issued an ultimate appeal to the NFL.
“Adopt the players’ proposal that is fair, one that is protective of the players’ due process rights, and one that ensures that we maintain jointly the integrity of the game,” Smith says. “Accept our proposal, and let’s move on with football.”
David Elfin has covered the NFL and its players for 20 years. He is the former President of the Pro Football Writers of America and serves as the Washington representative on the Pro Football Hall of Fame selection committee. He’s the author of seven books including the new “Washington Redskins: The Complete Illustrated History.