With yesterday’s ruling on the unavailability of the “Single Entity” defense by the NFL for antitrust immunity, we move on to an equally thorny yet highly important issue facing ownership and future bargaining: the integrity of the testing program for performance-enhancing substances.
As the owners gather in Dallas for their annual May meeting, they can hopefully set aside some time on the agenda to discuss this issue. It has not been a good month for the NFL’s public image with regard to drug testing.
The Cushing conundrum
Texans linebacker Brian Cushing was able to delay a four-game suspension through the 2009 season, a season in which he was elected to the Pro Bowl and honored as the AP Defensive Rookie of the Year. Cushing reportedly tested positive for hCG, meaning that either he injected the substance into his body to restore and maintain testosterone production or he is pregnant, which would truly be the story of the offseason!
The delay of the Cushing suspension goes to the integrity of the process. If players are allowed to divert and delay pending suspensions through an exhaustive use of the appeals process and legal tactics, public confidence in the product of the game may lessen. Knowing there may be players on the field delaying suspensions into the next season, integrity is affected. And depending on the player, he could potentially be retired or released at that time.
Commissioner Roger Goodell has been swift and decisive in applying discipline for off-field conduct yet is unable to be as nimble with the Policy on Anabolic Steroids and Related Substances. Cushing’s use of prohibited substances – something rumored for years – is one thing; the circumventing of the suspension in the year of the failed test is perhaps the more damning evidence to the public.
Williams wall still standing
Speaking of circumventing suspension, no one has done it better over the past two years than Pat and Kevin Williams of the Vikings – with Charles Grant and Will Smith of the Saints hanging on their coattails. In the latest episode of the long-running StarCaps miniseries, a Minnesota judge preserved an injunction allowing them to keep playing as long as they plead their case to the Minnesota Court of Appeals, which, of course, they will do.
And with the appellate calendar backed up, the delay could be “Cushingesque”, allowing the Williams Wall to play another year – the 2010 season – before the case is even heard. Pat Williams, now 37, may be retired at this time next year when his suspension for failing a 2008 drug test may go into effect.
This case has been perplexing from the beginning since it was removed from the context of the Collective Bargaining Agreement (CBA) to the context of the state law, which requires more of employers in the drug-testing area than does the NFL. The NFL and the Williams’ lawyers have each put their spins on the case.
What to do
The NFL is in the embarrassing situation of having players with documented use of banned substances continuing to play without consequence. A collectively-bargained policy with consequences that cannot be delayed and prolonged now becomes a higher priority among many priorities on the bargaining agenda for the league and the union to resolve. And hopefully, as suggested here yesterday, the American Needle ruling is an impetus for some meaningful bargaining.
The NFL and the NFL Players Association have a joint interest and desire for the paying public to have confidence that what is in the players’ bodies does not alteri the competitive balance of the game. These cases have become dark clouds on the integrity and uniformity of the jointly administered policy.
Speaking of dark clouds, a potentially huge one may be forming and its name is Anthony Galea. More on that to come.
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