Improving the NFL’s Drug Testing Program: a Proposal (Part Two)

In my last blog entry, I recommended that the NFL adopt a system of independent arbitrators to decide appeals. The second important change that is needed in the NFL’s drug-testing policy is a change in the league’s approach to penalties. The league and the union should implement rule changes allowing the NFL to differentiate between cases of intentional and inadvertent doping and impose penalties accordingly.

The supporters of WADA and USADA have frequently criticized NFL suspensions as being too lenient, but in many cases the WADA Code provides for lesser sanctions than the NFL Policy On Anabolic Steroids And Related Substances. Certainly, the WADA Code at least recognizes that athletes should be able to argue for lesser penalties in cases where they are not negligent or are not significantly negligent, and in cases where the substance for which the athlete tested positive is not a serious doping substance. The current NFL Policy makes no such differentiation.

Under the current policy, the fixed penalties are:

First Offense: suspension without pay for 4 regular and/or postseason games;

Second Offense: suspension without pay for 8 regular and/or postseason games;

Third Offense: suspension without pay for 12 months.

This policy does not differentiate in any way between intentional and unintentional doping, nor does it differentiate at all based on the nature of the substance for which a player tests positive. That means a player who intentionally takes a steroid with the aim of enhancing his performance is treated exactly the same as a player who takes a vitamin that turns out to be contaminated with miniscule amounts of steroids or steroid precursor; is treated exactly the same as a player who takes a diuretic to try to meet a weight clause in his contract; and is treated exactly the same as a player who tests positive for recreational drugs that happen to be banned under the NFL Policy On Anabolic Steroids And Related Substances.

The fixed sanctions under the current NFL Policy On Anabolic Steroids And Related Substances are appropriate as maximum penalties, to be applied in cases of intentional doping. Those that argue that the sanction is too lenient as compared to the WADA / USADA system simply ignore how short the average NFL career is in the first place, and further ignore the significant financial penalty that exists in the NFL system that is largely absent in the WADA / USADA system. The NFL should create an acceptable range of sanctions in the following two ways, again drawing from the experience of the WADA Code:

1. The NFL should adopt a list of “Specified Substances” similar to the WADA Code, and specify a wider sanction range in cases of Specified Substances. The WADA Code defines “Specified Substances” at Article 4.2.2 as follows: “all Prohibited Substances shall be “Specified Substances” except substances in the classes of anabolic agents and hormones and those stimulants and hormone antagonists and modulators so identified on the Prohibited List. Prohibited Methods shall not be Specified Substances.” The WADA Prohibited List specifically identifies the stimulants and hormone antagonists that are “Specified Substances.” Lastly, WADA Code Art. 10.4 requires that in order to be eligible for the reduced sanction, the athlete must “establish how a Specified Substance entered his or her body or came into his or her Possession and that such Specified Substance was not intended to enhance the Athlete’s sport performance or mask the Use of a performance-enhancing substance.” The NFL should incorporate these concepts into its policy, and specify that where the requirements for “Specified Substances” are met, the fixed sanctions are replaced with the following sanction ranges:

First Offense: suspension without pay for 0-4 regular and/or postseason games;

Second Offense: suspension without pay for 2-8 regular and/or postseason games;

Third Offense: suspension without pay for between 4 regular and/or postseason games and 12 months.

2. The NFL should adopt a system similar to Article 10.5 of the WADA Code, where the sanction can be reduced based on a finding of exceptional circumstances. Article 10.5.1 of the WADA Code provides that if the athlete can establish that he committed no fault or negligence, then the otherwise applicable sanction is eliminated. Article 10.5.2 of the WADA Code provides that if the athlete can establish that he was not significantly at fault or negligence, then the sanction can be reduced, but by no more than 50% of the otherwise applicable sanction. This system could be easily incorporated into the now existing fixed penalties for first, second and third offenses, to allow the league (and where necessary the Hearing Panel) to differentiate between cases of intentional and unintentional doping.

These changes to the sanction length and to the concept of fixed sanctions would create a sanctioning scheme that is more fair and that properly differentiates between cases of intentional and inadvertent doping offenses.

In my next proposal, I will address issues surrounding sample collection and how the NFL addresses dilute urine samples.