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Volume 20 No. 42
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NFL’s tight grip on drug policy review invites intervention

How powerful is the commissioner of a professional sports league? That is a question that has arisen from the moment the office of the commissioner was created. From Kenesaw Mountain Landis and the Black Sox Scandal (in the good old days before every scandal turned into a “-gate”) to Roger Goodell and Bounty-gate, the office of the commissioner has often acted as cop, judge, jury and executioner, handing down punishments to protect the “best interests” of the game.

But can holding tight to such control actually invite outside interference?
Over the years, players have been able to gain some protection from the far-reaching power of the commissioner by bargaining for independent review of certain league and commissioner decisions. For example, the collective-bargaining agreements in the big four pro sports leagues in the U.S. require disputes regarding many provisions of the CBA to be heard by a neutral arbitrator or panel of neutrals. The significance of this protection is perhaps clearest in Major League Baseball, where an independent arbitrator was able to get something for MLB players that they were not able to get from the owners: free agency.

The NFL, however, has managed to carve out two significant areas where the commissioner is the ultimate authority and his decisions are not subject to independent review: off-field misconduct and drug testing. Under the NFL’s Conduct Policy, players (and all NFL employees) have no right to impartial review of commissioner discipline for off-field misconduct. Rather, all appeals are heard by the commissioner. The NHL is the only other major pro sports league that provides no outside review for commissioner discipline of off-field misconduct. Under the NFL’s most recent Policy on Anabolic Steroids and Related Substances (the two sides are in the process of negotiating a new policy), players do not have the right to appeal discipline for a positive drug test to an independent arbitrator. Rather, all appeals are heard by the commissioner’s office. The NFL is the only major pro sports league that does not provide independent review of positive drug tests.

The limited right of appeal for NFL players in drug testing cases led to the stark contrast in the recent incidents involving reigning National League MVP Ryan Braun and the Denver Broncos’ D.J. Williams and Ryan McBean. Braun was suspended 50 games for a wildly elevated testosterone level, while McBean and Williams were suspended six games for submitting non-human urine during a drug test. MLB’s Joint Drug Prevention and Treatment Program provides players with the right to appeal positive tests to a three-person arbitration panel, including one neutral arbitrator. (In Braun’s case, the panel was made up of Rob Manfred, MLB
The differences in the outcomes of the drug-testing cases involving Milwaukee’s Ryan Braun (top) and Denver’s Ryan McBean (above) and D.J. Williams is striking.
executive vice president; Michael Weiner, MLB Players Association executive director; and the neutral arbitrator, Shyam Dyas). McBean and Williams’ appeals were heard by Harold Henderson, an NFL employee representing the commissioner’s office.

Braun argued in his appeal that the sample collector had violated MLB’s drug testing policy by storing Braun’s urine sample in his home over the weekend rather than immediately bringing it to a Fed Ex office for shipping. McBean and Williams argued in their appeals that the sample collector had violated the NFL’s drug testing policy by failing to observe a number of “universally accepted specimen safeguarding and chain of custody standards,” which ultimately led the collector to be terminated by the testing agency.

Braun won his appeal (with the neutral arbitrator casting the deciding vote in a 2-1 decision) and had his 50-game suspension thrown out, which prompted a “livid” MLB to issue a statement that they “vehemently disagree” with the decision. McBean and Williams lost their appeals, despite the NFL’s acknowledgment that Williams’ case showed “troubling” gaps in the chain of custody and an “environment of haste, rushing, confusion and short cuts around the collection process,” while McBean’s case presented evidence that was “troubling and arguably calls into question the integrity of the validation process.”

The perceived unfairness in cases like this — and the belief that an appeal only to the commissioner is no right of appeal at all — led the NFL players to fight for independent review of commissioner discipline in both drug testing and off-field misconduct cases. They lost the fight for the off-field issues (thus, the Bounty-gate perpetrators are stuck with the commissioner as judge, jury and executioner) but they are still haggling over terms of the new drug testing policy, and independent review of positive tests has emerged as an even more significant issue because of the planned introduction of blood testing for HGH.

But this issue is bigger than independent review of drug suspensions. After all, in some ways, the benefits of an independent arbitrator for drug cases are largely illusory, because most drug-testing regimes in professional sports have a strict liability policy. Independent review or not, drug suspensions are rarely overturned because there are only very limited defenses available to the players. In fact, Braun was the first MLB player to have a drug suspension overturned on appeal (and despite the fact that the independent Court of Arbitration for Sport reviews drug testing in international sports, positive tests rarely get overturned).

Instead, this is about leagues protecting themselves from outside interference. The NFL wants to keep its disputes out of court and does not want a judge (or Congress) telling them how to run their business. Yet, ironically, the absence of independent review in the NFL drug policy has led to litigation by the players — McBean and Williams filed suit in federal court to overturn their suspensions, and Pat Williams and Kevin Williams filed suit in state court to overturn their Star Caps suspensions — that opens the door for judicial, and perhaps congressional, intervention.

While the NFL’s desire to be the master of its own domain is understandable, setting up a fair process with independent review that gives up a little control might be the best way for them to ensure that they don’t lose complete control.

Gabe Feldman is associate professor of law and director of the Sports Law Program at Tulane University Law School. Follow him on Twitter @SportsLawGuy.