Breaking Down the New Joint Drug Agreement

Depending on your point of view, earlier this week:

• Clean living triumphed over drug abuse.
• Cheaters were shown the door.
• Management beat the union.
• Congress pushed baseball (read: the union) into a corner.
• The Fourth Amendment was trampled under foot.

For the second time in the past year, history repeated as management and the Players’ Union broke the normally sacred seal of the Collective Bargaining Agreement and altered the Joint Drug Agreement. This time, however, the changes to the contract are significant in terms of punishment, reach, and scope. If ratified, the testing policy and penalties for performance enhancing drugs, as well as amphetamines, moves Major League Baseball’s policy into a sphere more closely aligned with Olympic testing, and will be the benchmark that other professional sports will be gauged by.

While Commissioner Bud Selig has been vocal about placing such a policy in place as performance enhancing drugs pose a “fundamental challenge to the integrity of the game,” the real hammer in the decision was the threat of several pieces of legislation by Congress, most notably the Professional Sports Integrity and Accountability Act, which seek to enforce more stringent penalties for steroid use across all professional sports.

While this agreement does not have the penalties that the legislation proposed by members of Congress has, it moves the conversation from “toothless policy” into one that will raise the hair on the back of the neck for Fourth Amendment advocates. Now, every player will have a preseason test in connection with spring training physicals, and will be tested at least once more during the season, with all players remaining subject to random testing beyond the those two tests, no matter how many times they have been tested prior. This will include the offseason, as well.

Another shift is that the Health Policy Advisory Committee (HPAC) is ostensibly removed from the testing process. This is key, as HPAC is comprised of management and union representatives. In its place, the scheduling of tests, the collection of samples and the implementation of the parties’ agreement with the World Anti-Doping Agency Certified Laboratory and the reporting of positive tests results to the parties will be turned over to a new Independent Program Administrator, unaffiliated with either Major League Baseball or the Players Association. If the agreement is ratified, baseball will have in place a testing process that is wholly independent.

As far as penalties for steroids and amphetamines, here are the changes to the JDA:

Penalties for Steroids

First positive: 50 games
Second positive: 100 games
Third positive: Lifetime ban, subject to right to seek reinstatement after two years of suspension, with arbitral review of reinstatement decision

In the case of “strike three”, the union gets the single concession in the agreement: The right to seek reinstatement after two years of suspension via arbitrational review for the purposes of reinstatement. This case was made in statements by Executive Director Fehr before United States Senate Committee on Commerce, Science and Transportation on September 28 of this year. The Player’s Association was able to get this wording in every instance where possible lifetime ban is referenced in the Agreement. Beyond this, penalties for a positive steroid test are as Selig proposed by letter to Fehr on April 25.

Conviction for Possession of Steroids

First offense: 60 to 80 games
Second offense: 120 games to one year
Third offense: Lifetime ban, subject to right to seek reinstatement after two years of suspension, with arbitral review of reinstatement decision

A major policy change now provides harsh penalties for those actually found to be in direct possession of steroids. This new provision within the JDA moves from a case where possession of a prohibited substance simply allowed for reasonable cause for testing into the realm of suspension or banishment from the game.

Conviction for Distribution of Steroids

First offense: 80 to 100 games
Second offense: Lifetime ban, subject to right to seek reinstatement after two years of suspension, with arbitral review of reinstatement decision

Yet another major shift in policy, as those found to have distributed performance-enhancing drugs get only two strikes, with a first offense ostensibly suspending a player for a half a season, and lifetime banishment for a second violation.

Changes Involving Amphetamines

While steroids grab the headlines, the addition of testing for amphetamines marks a historic point in baseball as the use of the drug has been well known in baseball for decades, under the term “greenies.” Doing a search of the original 2002 CBA doesn’t even cover the word “amphetamines”, so beyond toughing up steroid use, baseball has shifted the focus onto a second arena, stimulants.

Players now will be subject to suspicionless testing for amphetamines and other amphetamine-like stimulants during regular season and postseason.

Disciplinary Schedule for Positive Amphetamine Tests

First positive: Mandatory follow-up testing
Second positive: 25 games
Third positive: 80 games
Fourth positive: Discipline imposed by the Commissioner up to and including a lifetime ban, with arbitral review.

Nested within these penalties, the fact that a player can be banned from baseball for life over the use of amphetamines shows just how seriously this new program is being viewed by MLB and the Players Association. Moreover, a second positive test for amphetamines now garners five games more than the initial suspension proposal for steroids by the union and is one and a half times as long as the current penalty for a violation of steroid use.

Conviction of Possession of Amphetamines

First offense: 15 to 30 games
Second offense: 30 to 90 games
Third offense: One year.
Fourth offense: Discipline imposed by the Commissioner up to and including a lifetime ban, with arbitral review

As with steroids, the new JDA places severe penalties in place for those that are found to be in possession of amphetamines.

Conviction for Distribution of Amphetamines

First offense: 60 – 90 games
Second offense: Two years
Third offense: Discipline imposed by the Commissioner up to and including a lifetime ban, with arbitral review.

Get caught handing out greenies, and you could lose up to half the season. Following in line with the rest of the agreement, severe penalties are imposed for those that are caught expanding stimulants within Baseball.

* * * * *

Given the magnitude and factors involved in the agreement, I asked several individuals who have been directly involved in the business of baseball about the change in policy.

Noted sports economist Andrew Zimbalist remarked that, “[The agreement] is an important step forward, but one has to remain concerned that several substances, such as
HGH, are not detectable by urine tests.”

Former commissioner Fay Vincent responded by saying, “I think Congress played a major role in the decision, and I think it’s a fine program. Opening up the contract is very controversial thing. From baseball’s point of view, opening up the contract is a dangerous precedent. baseball’s, historically taken care of their own house, and we don’t need Congress dictating matters.”

Buzzie Bavasi, who was general manager of the Dodgers, president of the Padres, and executive vice president of the Angels said, “I, like many other former GMs, am highly impressed with the job Bud Selig and Don Fehr have done regarding the drug problem. During my Dodger days both in Brooklyn and Los Angeles my players were lucky if they could afford a beer, no less steroids. The problem came about when player salaries reached a level where one and all could afford a drug or two. I am sure that Mr. Fehr and Mr. Orza will attest to this.”

Not surprisingly, the most outspoken statements came from former Executive Director of the Players’ Association, Marvin Miller. “[Reopening the contract] is foolishness in the extreme,” he said. “None of this of this had to happen. A contract ought to be a sacrosanct agreement that cannot be abrogated. And, the very act of one party asking another to abrogate what was derived in good faith, is something to be condemned in very certain terms. It is unprincipled on the part of Selig and the people he represents.” When asked if he felt the threats by members of Congress to pass law imposing testing penalties had teeth, Miller’s reply was, “In my opinion [Congress’ threat] had no teeth.” Asked if he felt the Players’ Association been weakened by this decision, Miller replied, “No question about it.”

* * * * *

At the beginning of this article, I listed several different points of view one may have had when the news broke on the new drug policy that MLB will embark upon if ratified. The last one that really should be added is, “Is this the end of the steroid discussion? Is this finally the end?” Certainly, the full details of this policy need to be known before one can say with any certainty if that is truly the case. As Zimbalist noted, there are other substances that are not addressed in this policy shift. Human Growth Hormone, and other designer drugs have the capacity to still be used in professional sports where competitive egos, coupled with performance based salaries can drive players to take an artificially induced path.

Still, looking at the Olympic policy, athletes have been had substances that are ahead of the testing curve, and will continue to do so. The difference is what sport the steroid issue is placed against. Arguably, it is baseball’s long history and generational appeal that seems to impact its image the most. The key word there is “image.” Whether the use of steroids provides irrefutable proof of performance enhancement in baseball is a study not yet undertaken. With that in mind, the new drug policy being put forth should improve baseball’s image, dramatically, and hopefully, those fans and members of the media that have cried the loudest on this topic can get back to a point when a homerun hitter of a prodigious nature won’t be labeled with “* — Possible Juicer”.

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