Romero’s Suspension

Peter Gammons has a very detailed piece about J.C. Romero’s 50-game suspension for taking, well, something:

Three months after Romero was tested before a Phillies-Mets game on Aug. 26, the players’ association sent a Nov. 21 letter to players that stated, “We have previously told you there is no reason to believe a supplement bought at a U.S. based retail store could cause you to test positive under our Drug Program. That is no longer true. We have recently learned of three substances which can be bought over the counter at stores in the United States that will cause you to test positive. These three supplements were purchased at a GNC and Vitamin Shoppe in the U.S” . . .

On July 22, Romero bought a supplement at the GNC store in Cherry Hill. He had it checked by his personal nutritionist, who said there was nothing in the supplement that was illegal. There was no warning on the label. Romero mentioned it to Phillies strength and conditioning coach Dong Lien . . .

. . . “What they now say I should have done was call the drug hot line,” Romero said. “But I had it checked out by nutritionists, and I was following the guidelines laid down by the players’ association in spring training” . . .

. . . There seems to be little question that the players’ association unwittingly misled Romero — and other players — about over-the-counter supplements purchased in the United States. Somehow, after MLB was warned in early July, those concerns did not reach the players’ association about three supplements available at every GNC store.

This is a pretty messed up situation. Yes, it’s apparently a technical violation of the league’s substance abuse policy, and yes, Romero — like anyone else subject to drug testing of any kind — should take primary responsibility for ensuring that what goes into his system is permitted under the rules rather than rely on the union or trainers who, as this case makes clear, can be mistaken about such things.

But unless Gammons is leaving something major out — and I’ll note that MLB had no comment for the article — this does not sound like the sort of conduct that should cause a guy to miss nearly a third of the season. Unfortunately, the post BALCO public outcry — not to mention Congressional grandstanding — demanded that MLB adopt zero or near-zero tolerance for PED use, backed up with what, in this case anyway, appear to be pretty draconian and apparently anyway, discretion-free penalties.

(thanks to reader Ian Devine for the link)

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Comments

  1. MooseinOhio said...

    The NFLPA was able to get the recent suspensions of five players overturned for a basically the same issue – i.e. bought a supplement over the counter at a legitimate retail outlet.  I suspect that a similar argument can be made for JC Romero and if he truly did buy it over the counter and sought advice/counsel from folks he considered knowledgable about the matter then I hope he prevails as it indicated no attempt to cheat but simply a desire to use a legitimate product to improve his conditioning.

    The larger issue here in some way is the lack of real regulation of the supplement world as most do not need FDA approval (of course the FDA approval process is not without question).  Personally I have strayed away from such items when I trained for marathons and triathlons and went a more natural route with fruits, grains, vegetables and very limited use of scientific products.  Obviously I was competing at a very different level and chose a route that I knew was best for my long-term health as I was somewhat fearful of putting something into my body that may some day harm me.

  2. The Common Man said...

    Craig (and any other lawyers in the house, wazzup lawyers!) based on the information in Gammons’s report, do you think Romero has a legal recourse here?  It sounds like he’s out $1.25 mil, and I wonder if he can get any of that back from his union or from the supplement manufacturer (for not including whatever substance caused the problem on its list of ingredients).

  3. Craig Calcaterra said...

    Good question, TCM.  Until I have to reluctantly trudge back into a law firm again I’m kind of pretending I’m not a lawyer anymore, but I did think about that a tad.

    My gut tells me that he doesn’t have recourse in that, from what I understand, the Union is not considered an official source of PED information, warnings, etc. (Gammons mentions a “hot line” that Romero could have consulted but didn’t).  Yes, they may try to help, but if they’re wrong, saying that they were ultimately responsible for you taking something you shouldn’t would be an awfully difficult argument to make.  The legal question that would ultimate arise would be “was Romero right (or was it reasonable) to rely on what he heard from the union?”  In light of other, more official sources, I’d say no, though I understand others may disagree.

    As for the supplement maker, they’re subject (or not subject to) whatever regulations they’re subject to as far as labeling goes.  It’s not a given that compliance with those regulations = lack of liability, but that does go a long way.  While not revealing something that was potentially dangerous would be big trouble, I don’t know if not including an ingredient that may simply violate a rule to which the manufacturer was not subject would be.

    But like I said: my legal mind is on hiatus at the moment, so I’m willing to entertain other arguments and admit that mine may be whack.

  4. themarksmith said...

    Here’s the thing if they reduce or remit Romero’s suspension. What happens when someone else uses this excuse but doesn’t have such innocent intentions? They could go to GNC or wherever and buy what they need and find a few “trainers” who say it’s okay. Then again, what’s to say that Romero and Mitre are telling the truth? I know that’s a bit pessimistic, but can we just take their word for it?

  5. Pete Toms said...

    When did Mitre become a Yankee?

    @ Moose.  Bang on on both counts.  I instantly thought of the recent ( unresolved I think? ) case in the NFL.  And yes, the “supplement” industry is a sink hole ( one word? )

    I have zero respect for politicians, here, south of the border and of all stripes.  Congress made changes favorable to the “supplement” industry with the DHSEA.  The changes reduced the amount of regulation and testing of what is in this garbage and loosened the restrictions on where this crap could be sold ( convenience stores and gas stations were previously forbidden IIRC ).  And then Congress gets up on their soap box and condemns MLB and the PA for their behavior.  **** OFF!

  6. Pete Toms said...

    Sorry, not done.

    @ Jimmy P.  No doubt the NFL players are juiced ( is anybody not juiced in that league? ).  I think what is unfair in both instances though is that the players in both leagues can’t get a definitive answer on what is legal and what isn’t. 

    Oh well, home runs are down, and that’s good.

  7. Daniel said...

    I feel bad for Romero, which is rare, since I don’t usually feel bad for millionaires who get to play ball for a living.  I feel bad for him because it seems like he did his due diligence.  No, he didn’t exhaust his resources (he didn’t call the drug hotline or check the label of the supplement against a list of banned substances), but how much can you expect a guy to do?  The Player’s Union said it was okay, two nutritionists were okay with it.  That’s tough and in light of the circumstances, I would think Selig will consider lightening the suspension.

  8. serq said...

    Rob Neyer has some interesting information on his blog not mentioned by Gammons:

    http://sports.espn.go.com/espn/blog/index?entryID=3814170&name=Neyer_Rob

    The meat of it is actually from Will Carroll of BP (whom Rob, of course, links to in his post), with some commentary from Rob. Interesting stuff, and summed up nicely in Rob’s final sentence:

    “Here’s a crazy idea: Read the label, and if the label says the product may be banned by an athletic association and you’re a professional athlete subject to drug testing … don’t take that drug.”

  9. Pete Toms said...

    What happened to the good old days?  When owners, players and baseball writers all thought taking andro was ok.

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