In my last blog entry, I analyzed competitive cheerleading and dance as growing sports at the high school and collegiate level. I suggested that a path might exist for these sports to grow in the competition arena and potentially even gain entry to the Olympics. This is not as far fetched as it may sound, and does not necessarily have to be that far off in the future. In fact, organization of these “competitive sports” has already started: the International Cheer Union (ICU) will be formally applying to Sport Accord (an association of international sports federations) for membership next year; and the International Dance Sport Federation (IDSF) is already a member of Sport Accord and is diligently working to have competitive dance added as an Olympic Sport. However, history suggests that this may not be the best avenue to achieving Olympic or even NCAA status.
Snowboarding offers an interesting historical perspective, with many rather unexpected parallels. As one of the most popular Olympic events at the 2012 Olympics, it is hard to imagine the contentious path that snowboarding took to the Olympic Games.
During snowboarding’s rapid growth in the 1990’s, the international federation for the competitive aspects of the sport was the International Snowboard Federation (“ISF”). Terje Haakonsen, regarded by many as the best snowboarder ever, found his early fame on the ISF competition circuit (the ISF is separate from and should not be confused with the International Ski Federation, which is the FIS).
In deciding to add snowboarding as an Olympic event in 1998, the International Olympic Committee (“IOC”) controversially decided to name the skiing federation (FIS) as the recognized international federation for snowboarding, instead of the actual snowboarding federation – the ISF. Many professional snowboarders and industry insiders were unhappy with this decision, believing this to be a power grab by the ski federation, who had an existing relationship with the IOC, despite the feeling at the time that the FIS knew little about snowboarding. In fact, significantly and very publicly, Terje Haakonsen boycotted the 1998 Olympic Games, and has never competed in the Olympic Games. All the protests and boycotts did little to elevate the ISF. Instead, as the competitive aspects of the sport shifted to the FIS, the ISF ultimately folded in 2002.
Competitive snowboarding has flourished since its introduction to the Olympics. However, the “commercialization” of the sport has not had the dire consequences with respect to the more artistic aspects of snowboarding that some predicted. In fact, today many professional snowboarders have thriving careers based on film and video shoots, combined with commercial endorsements, without competing in snowboarding contests at all.
Competitive cheerleading and dance could learn from the experiences of snowboarding. The easiest path to the Olympic Games would be a partnership with an international sports federation that already has events inside the Olympic Games – for example, the International Gymnastics Federation (FIG). Organizing competitive cheer or dance under the umbrella of an established federation like FIG could rapidly increase the opportunities for dancers that do not exist today, possibly leading to dance as a full Olympic and NCAA sport. At the same time, as has been experienced with snowboarding, the artistic and professional opportunities that already exist in the dancing world should not be diminished in any way.
Wednesday, October 27, 2010
Wednesday, August 11, 2010
CHEERLEADING AND DANCE: WHO WILL BE THE FIRST SHAUN WHITE OF THESE GROWING SPORTS?
Since 1982, when ESPN televised the first of many Cheerleading National Championships, there has been a slow, but consistent evolution of cheerleading from a recreational activity to a competitive sport. To some degree dance has been moving more in a competitive direction as well, with the proliferation of high school dance teams, and the popularity of competition dance shows such as “Dancing With The Stars” and “So You Think You Can Dance.” Since I am surrounded by dancers both at home and at work, the topic of dance as a sport is one in which I have some interest.
It is generally accepted that cheerleading is a strenuous activity with a fairly high risk of injury. In fact, Wisconsin Supreme Court ruled last year that cheerleading could be considered as a full contact sport. Cheerleadering accounts for almost two thirds of catastrophic injuries suffered by high school girls and college women, a fact that has been addressed by the NCAA.
A sport can be generally defined as an organized activity, requiring skillful capabilities, and in which a winner can be determined objectively according to a principal set of rules. In Title IX cases, some courts have characterized collegiate sport as including off-campus recruiting, a defined season and post season, a consistent set of rules, and competitive contests.
Much has been written about whether competitive cheerleading qualifies as a sport under Title IX, and the implications of that decision. See, for example, http://savingsports.blogspot.com. Another related issue that has been less explored is how competitive cheerleading and dance can better organize themselves to avail themselves of the opportunities that exist in collegiate and international sporting arenas. Organization has already started on two separate fronts: the International Cheer Union (ICU), which will be formally applying to Sport Accord (an association of international sports federations) for membership next year; and the International DanceSport Federation (IDSF), who is already a member of Sport Accord and is diligently working to have competitive dance added as an Olympic Sport. However, these organizations have a long way to go. For example, when the Connecticut courts ruled last month that Quinnipiac University’s competitive cheerleading team did not qualify as a sport for Title IX purposes, it was based in part on the observation that “the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.”
In my next blog entry, I will offer suggestions as to how competitive cheer and competitive dance could better organize themselves to increase their chance of being recognized as both NCAA and Olympic sports; and how they can learn from the organizational experience of the sport of snowboarding.
It is generally accepted that cheerleading is a strenuous activity with a fairly high risk of injury. In fact, Wisconsin Supreme Court ruled last year that cheerleading could be considered as a full contact sport. Cheerleadering accounts for almost two thirds of catastrophic injuries suffered by high school girls and college women, a fact that has been addressed by the NCAA.
A sport can be generally defined as an organized activity, requiring skillful capabilities, and in which a winner can be determined objectively according to a principal set of rules. In Title IX cases, some courts have characterized collegiate sport as including off-campus recruiting, a defined season and post season, a consistent set of rules, and competitive contests.
Much has been written about whether competitive cheerleading qualifies as a sport under Title IX, and the implications of that decision. See, for example, http://savingsports.blogspot.com. Another related issue that has been less explored is how competitive cheerleading and dance can better organize themselves to avail themselves of the opportunities that exist in collegiate and international sporting arenas. Organization has already started on two separate fronts: the International Cheer Union (ICU), which will be formally applying to Sport Accord (an association of international sports federations) for membership next year; and the International DanceSport Federation (IDSF), who is already a member of Sport Accord and is diligently working to have competitive dance added as an Olympic Sport. However, these organizations have a long way to go. For example, when the Connecticut courts ruled last month that Quinnipiac University’s competitive cheerleading team did not qualify as a sport for Title IX purposes, it was based in part on the observation that “the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.”
In my next blog entry, I will offer suggestions as to how competitive cheer and competitive dance could better organize themselves to increase their chance of being recognized as both NCAA and Olympic sports; and how they can learn from the organizational experience of the sport of snowboarding.
Monday, June 14, 2010
Improving the NFL’s Drug Testing Program: a Proposal (Part Four)
In my last blog entry, I recommended that the NFL handle dilute urine samples in a different manner that is more fair to its Players and more consistent with the goals and objectives of an anti-doping program. This entry addresses one peculiar fact within the dual drug-testing programs of the NFL –that certain substances are prohibited under both the Steroid Policy and the Substance Abuse Policy, and that punishment can therefore vary considerably for positive tests for the same exact substance.
The NFL has two separate drug-testing policies: (1) the NFL Policy On Anabolic Steroids And Related Substances [“Steroid Policy”); and (2) the NFL Policy And Program For Substances Of Abuse [“Substance Abuse Policy”]. These two policies have very different sanction schedules, with the Substance Abuse Policy being more (appropriately) geared toward treatment than penalizing the athlete. However, amphetamine and methamphetamine are currently prohibited under both policies.
Therefore, a player who tests positive for either of these substances will have a very different penalty depending only on whether the test is conducted under the Steroid Policy or the Substance Abuse Policy. Under the Steroid Policy, a first positive test results in a 4-game suspension without pay; a second positive test results in an 8-game suspension without pay; and a third positive test results in a 12-month suspension without pay. However, a player who tests positive for amphetamine or methamphetamine under the Substance Abuse Policy will receive treatment and be subject to further testing for the first positive test; a 4-game suspension without pay for the second positive test; and a suspension without pay for up to 6 games for a third positive test.
The NFL and NFLPA should make a policy determination as to whether they believe that amphetamine and methamphetamine more properly belong under the Steroid Policy or the Substance Abuse Policy, and should place these substances under that drug-testing program only. Players should not receive disparate treatment and/or penalties for a positive test for amphetamine or methamphetamine dependent solely on which drug-testing program they are being tested under.
The NFL has two separate drug-testing policies: (1) the NFL Policy On Anabolic Steroids And Related Substances [“Steroid Policy”); and (2) the NFL Policy And Program For Substances Of Abuse [“Substance Abuse Policy”]. These two policies have very different sanction schedules, with the Substance Abuse Policy being more (appropriately) geared toward treatment than penalizing the athlete. However, amphetamine and methamphetamine are currently prohibited under both policies.
Therefore, a player who tests positive for either of these substances will have a very different penalty depending only on whether the test is conducted under the Steroid Policy or the Substance Abuse Policy. Under the Steroid Policy, a first positive test results in a 4-game suspension without pay; a second positive test results in an 8-game suspension without pay; and a third positive test results in a 12-month suspension without pay. However, a player who tests positive for amphetamine or methamphetamine under the Substance Abuse Policy will receive treatment and be subject to further testing for the first positive test; a 4-game suspension without pay for the second positive test; and a suspension without pay for up to 6 games for a third positive test.
The NFL and NFLPA should make a policy determination as to whether they believe that amphetamine and methamphetamine more properly belong under the Steroid Policy or the Substance Abuse Policy, and should place these substances under that drug-testing program only. Players should not receive disparate treatment and/or penalties for a positive test for amphetamine or methamphetamine dependent solely on which drug-testing program they are being tested under.
Monday, May 3, 2010
Improving the NFL’s Drug Testing Program: a Proposal (Part Three)
In my last blog entry, I recommended that the NFL modify its approach to fixed penalties, and adopt a system that recognizes that not all conduct merits the same penalty. While there is a certain simplicity in a “one penalty for everything” approach to sanctions, such an approach ignores fundamental principles of fairness and proportionality that the players deserve and respect. A similar “one approach for everything” approach can be seen in the manner in which the NFL addresses dilute urine samples, and related issues surrounding the collection of urine samples.
Urine samples can be dilute for a number of reasons, including both (1) drinking large quantities of water in close proximity to the drug test (usually when the collection is shortly after a game or workout), and (2) using a diuretic to lose weight. Dilute urine samples are problematic in drug testing because it can be much more difficult to detect a prohibited substance in a dilute urine sample.
Under the NFL’s Policy And Program For Substances Of Abuse, a “dilute sample” is defined as “a urine specimen which has a specific gravity value less than 1.003 and a creatinine concentration of less than 20 mg/dL.” Appendix A-1 to that Policy provides procedures for the handling of a dilute sample, that include the following:
(1) Any player who provides a dilute specimen during Pre-Employment Testing or Pre-Season Testing shall enter Stage One of the Intervention Program;
(2) a dilute specimen will be tested to the “limits of detection” to determine if there is a presence of any substance banned by the Program or by an individual player’s treatment plan (the presence of a prohibited substance in a dilute specimen is called an “LOD Positive,” and the absence of any prohibited substances is called an “LOD Negative”);
(3) Players who provide a dilute urine specimen that is an LOD Positive shall enter Stage One of the Intervention Program by Positive Test;
(4) Players who provide a dilute urine specimen that is an LOD Negative shall enter Stage One of the Intervention Program by Behavior;
(5) A player who is in either Stage Two or Stage Three of the Intervention Program and provides a dilute urine specimen that is an LOD Positive shall be deemed to have had a Positive Test; and
(6) Each time a player enters the Intervention Program, he will be warned the first time he provides a dilute specimen that is LOD Negative after being advanced to Stage Two; however, after this one warning, a player in Stage Two or Stage Three who provides another dilute specimen that is LOD Negative shall be deemed to have produced a Positive Specimen.
Therefore, a player who provides a dilute urine sample during drug testing is potentially subject to severe consequences, even if the player did nothing wrong. Under certain circumstances, the NFL will deem a dilute sample to be a positive test even where there is no indication that the player used a prohibited substance. This is completely unnecessary, and punishes players for no reason at all. There is a much better and more fair way to handle dilute urine samples: the player who provides a dilute urine sample should simply be required to remain under supervision until he provides a second sample that is not dilute.
A sample collector can determine if a urine sample is too dilute at the time of collection by measuring specific gravity. If the specific gravity of the urine sample is below 1.003, the collector should notify the player that his urine sample is too dilute and that he needs to provide another sample. The collector should at that time also notify the player that (1) the player is required to remain under constant supervision until a suitable sample is collected; (2) the player should not hydrate excessively, as that will delay the production of a suitable sample; and (3) the player will remain under supervision until he provides a urine sample with a specific gravity of 1.003 or greater.
While the possibility that a player may have to remain in doping control for an extended period of time until he provides a suitable sample may seem burdensome to the players, the burden is far less than having a dilute sample result in placement in an intervention stage under the Policy And Program For Substances Of Abuse, or worse, having a dilute sample declared a positive test. There is no reason for players to be penalized for providing a dilute sample, when the problem can be remedied by simply collecting another sample or samples.
In my next proposal, I will address inconsistencies in the classification of certain substances that are created by the fact that the NFL has separate drug policies for steroids / performance enhancers and for substances of abuse.
Urine samples can be dilute for a number of reasons, including both (1) drinking large quantities of water in close proximity to the drug test (usually when the collection is shortly after a game or workout), and (2) using a diuretic to lose weight. Dilute urine samples are problematic in drug testing because it can be much more difficult to detect a prohibited substance in a dilute urine sample.
Under the NFL’s Policy And Program For Substances Of Abuse, a “dilute sample” is defined as “a urine specimen which has a specific gravity value less than 1.003 and a creatinine concentration of less than 20 mg/dL.” Appendix A-1 to that Policy provides procedures for the handling of a dilute sample, that include the following:
(1) Any player who provides a dilute specimen during Pre-Employment Testing or Pre-Season Testing shall enter Stage One of the Intervention Program;
(2) a dilute specimen will be tested to the “limits of detection” to determine if there is a presence of any substance banned by the Program or by an individual player’s treatment plan (the presence of a prohibited substance in a dilute specimen is called an “LOD Positive,” and the absence of any prohibited substances is called an “LOD Negative”);
(3) Players who provide a dilute urine specimen that is an LOD Positive shall enter Stage One of the Intervention Program by Positive Test;
(4) Players who provide a dilute urine specimen that is an LOD Negative shall enter Stage One of the Intervention Program by Behavior;
(5) A player who is in either Stage Two or Stage Three of the Intervention Program and provides a dilute urine specimen that is an LOD Positive shall be deemed to have had a Positive Test; and
(6) Each time a player enters the Intervention Program, he will be warned the first time he provides a dilute specimen that is LOD Negative after being advanced to Stage Two; however, after this one warning, a player in Stage Two or Stage Three who provides another dilute specimen that is LOD Negative shall be deemed to have produced a Positive Specimen.
Therefore, a player who provides a dilute urine sample during drug testing is potentially subject to severe consequences, even if the player did nothing wrong. Under certain circumstances, the NFL will deem a dilute sample to be a positive test even where there is no indication that the player used a prohibited substance. This is completely unnecessary, and punishes players for no reason at all. There is a much better and more fair way to handle dilute urine samples: the player who provides a dilute urine sample should simply be required to remain under supervision until he provides a second sample that is not dilute.
A sample collector can determine if a urine sample is too dilute at the time of collection by measuring specific gravity. If the specific gravity of the urine sample is below 1.003, the collector should notify the player that his urine sample is too dilute and that he needs to provide another sample. The collector should at that time also notify the player that (1) the player is required to remain under constant supervision until a suitable sample is collected; (2) the player should not hydrate excessively, as that will delay the production of a suitable sample; and (3) the player will remain under supervision until he provides a urine sample with a specific gravity of 1.003 or greater.
While the possibility that a player may have to remain in doping control for an extended period of time until he provides a suitable sample may seem burdensome to the players, the burden is far less than having a dilute sample result in placement in an intervention stage under the Policy And Program For Substances Of Abuse, or worse, having a dilute sample declared a positive test. There is no reason for players to be penalized for providing a dilute sample, when the problem can be remedied by simply collecting another sample or samples.
In my next proposal, I will address inconsistencies in the classification of certain substances that are created by the fact that the NFL has separate drug policies for steroids / performance enhancers and for substances of abuse.
Tuesday, April 13, 2010
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.
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.
Wednesday, March 31, 2010
Improving the NFL’s Drug Testing Program: A Proposal (Part One)
With the NFL and NFLPA engaged in what is likely to be protracted collective bargaining, the opportunity exists for the league and the union to examine their drug-testing program and make improvements based on experience. There are improvements that can be made in a number of different areas. Part One of my proposal addresses the arbitration / hearing process by which player appeals are heard and decided by the NFL.
Despite the repeated call for the NFL to outsource its drug-testing program to the World Anti-Doping Agency (WADA) or the United States Anti-Doping Agency (“USADA”) (mostly by those who have a stake in WADA and/or USADA), I do not believe that such a step is necessary. The NFL simply does not need to accept the politics of anti-doping that are inherent in adopting WADA or USADA.
Instead, the NFL and the NFLPA can and should learn from their own experiences, as well as from experiences that others have had with the WADA/USADA system. The NFL and NFLPA should then make appropriate improvements to their own program. This is a more direct way to improve the current system.
Having personal experience with the NFL, WADA and USADA programs, among others, there are certain changes that I would recommend that would improve the fairness and quality of the NFL’s drug-testing program.
Problem: Perceptions of partiality, conflict of interest
John Ruger, the Athlete Ombudsman for the United States Olympic Committee, has convincingly made the argument at numerous conferences that it is essential for anti-doping programs to be successful. He argues passionately that in order for these programs to be successful, it is not only important that the tests be accurate, it is equally important that the athletes believe that the system is fair. With respect to arbitrators or hearing officers, it is frequently stated that they must not only be impartial, but they must also appear to the outside world to be impartial. Part of this “appearance of impartiality” is the lack of any actual or potential conflicts of interest.
The current NFL POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES, at paragraph 10 (Appeal Rights), provides that “The League will designate a time and place for a hearing, at which either the Commissioner or his designee will preside as Hearing Officer … the Hearing Officer will issue a written decision, which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties.” In practice, the Commissioner’s designee as Hearing Officer will be Jeff Pash (NFL Executive Vice-President), Jay Moyer (former NFL Executive Vice-President), or Harold Henderson (NFL Executive Vice-President).
Therefore, under the current system, the NFL imposes a penalty, the player appeals the penalty, and then the NFL itself, through one of its current or former Vice Presidents, determines if its prior decision to suspend the player was correct: the NFL is the “judge, jury and executioner.”
Current Example: Judge Magnuson, in the Starcaps litigation, questioned the impartiality of Hearing Officer Jeff Pash due to his position as NFL Executive Vice-President. The Hearing Officers under the current NFL drug-testing policy who serve as executive officers of the NFL have a clear conflict of interest in being asked to determine the validity of the league’s suspension of players. Whether or not they are actually impartial is almost irrelevant, because the outward appearance of partiality is unquestionable.
Proposal
The first, easiest and most obvious change is an adjudication system in which independent arbitrators decide the merits of all appeals. With arbitrators who are completely independent of the NFL and the NFLPA, the most obvious partiality objection is immediately eliminated.
The League does not need to outsource its drug-testing program to USADA to achieve this. Rather, the league could simply use the same arbitrator pool that USADA uses in its adjudication process. Admittedly, this type of change would require an amendment to the NFL drug testing policies. However, the amendment itself would be relatively simple to draft. For example, paragraph 10 of the NFL POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES could be amended to read as follows:
“As is more fully outlined in Appendix D, any player who is notified by the League Office that he is subject to discipline for a violation of this Policy is entitled to an appeal.
The League will designate a time and place for a hearing, at which a Panel of three Arbitrators from the NFL Arbitrator Pool will preside as the Hearing Panel. The NFL Arbitrator Pool shall consist of the Court of Arbitration for Sport (CAS) Arbitrators who are citizens of the USA. The Hearing Panel shall be selected as follows:
(i) The NFL shall send to the player a list of all names of persons in the Arbitrator Pool; and shall simultaneously designate one (1) arbitrator from the Arbitrator Pool.
(ii) Within five (5) calendar days following receipt of the Arbitrator Pool list provided by the NFL, the player shall designate one (1) arbitrator from the Arbitrator Pool.
(iii) The two (2) arbitrators chosen by the NFL and the player respectively shall choose the third arbitrator from among the remaining members of the Arbitrator Pool. The NFL shall furnish to the party-appointed arbitrators the Arbitrator Pool list. If the two (2) arbitrators chosen by the parties are unable, within five (5) calendar days following their selection, to choose the third arbitrator, then the party-appointed arbitrators shall so notify the NFL which shall notify the player. Within five (5) days of receipt of notice from the NFL that the party-selected arbitrators are unable to reach or have not reached agreement, the NFL and the player shall then each strike up to one third of the Arbitrator Pool and rank the remaining members in order of preference. From among the persons who have not been stricken by the parties, and in accordance with the designated order of mutual preference, the NFL shall invite the acceptance of one (1) arbitrator to serve. The third arbitrator shall serve as Chair of the Hearing Panel.
Arbitrators shall be compensated at a rate consistent with the current CAS rates.
Arbitrator fees shall be divided and paid in equal shares by the NFL and the NFLPA.
The player may be accompanied by counsel and may present relevant evidence or testimony in support of his appeal. Additionally, the NFL Players Association may attend and participate notwithstanding the player's use of other representation.
After the record has been closed, the Hearing Panel will issue a written decision, which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties. (If appropriate, a summary ruling may be issued, followed by a formal written decision as time permits.) Pending completion of this appeal, the suspension or other discipline will not take effect.”
Modifying the adjudication system in this manner provides for an appeal process that is free from conflicts of interest, and should eliminate the appearance of any actual or perceived partiality. Once both sides agree that independent arbitrators would improve the perceived fairness of the system, rewriting the rules themselves to reflect this change is fairly straightforward, as demonstrated above. This modification also satisfies most of the objections of those who repeatedly argue that the NFL should simply outsource its drug-testing program to WADA or USADA.
In Part Two, I will address the League’s system of fixed sanctions and propose a modified sanction system that is more equitable to the players.
Despite the repeated call for the NFL to outsource its drug-testing program to the World Anti-Doping Agency (WADA) or the United States Anti-Doping Agency (“USADA”) (mostly by those who have a stake in WADA and/or USADA), I do not believe that such a step is necessary. The NFL simply does not need to accept the politics of anti-doping that are inherent in adopting WADA or USADA.
Instead, the NFL and the NFLPA can and should learn from their own experiences, as well as from experiences that others have had with the WADA/USADA system. The NFL and NFLPA should then make appropriate improvements to their own program. This is a more direct way to improve the current system.
Having personal experience with the NFL, WADA and USADA programs, among others, there are certain changes that I would recommend that would improve the fairness and quality of the NFL’s drug-testing program.
Problem: Perceptions of partiality, conflict of interest
John Ruger, the Athlete Ombudsman for the United States Olympic Committee, has convincingly made the argument at numerous conferences that it is essential for anti-doping programs to be successful. He argues passionately that in order for these programs to be successful, it is not only important that the tests be accurate, it is equally important that the athletes believe that the system is fair. With respect to arbitrators or hearing officers, it is frequently stated that they must not only be impartial, but they must also appear to the outside world to be impartial. Part of this “appearance of impartiality” is the lack of any actual or potential conflicts of interest.
The current NFL POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES, at paragraph 10 (Appeal Rights), provides that “The League will designate a time and place for a hearing, at which either the Commissioner or his designee will preside as Hearing Officer … the Hearing Officer will issue a written decision, which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties.” In practice, the Commissioner’s designee as Hearing Officer will be Jeff Pash (NFL Executive Vice-President), Jay Moyer (former NFL Executive Vice-President), or Harold Henderson (NFL Executive Vice-President).
Therefore, under the current system, the NFL imposes a penalty, the player appeals the penalty, and then the NFL itself, through one of its current or former Vice Presidents, determines if its prior decision to suspend the player was correct: the NFL is the “judge, jury and executioner.”
Current Example: Judge Magnuson, in the Starcaps litigation, questioned the impartiality of Hearing Officer Jeff Pash due to his position as NFL Executive Vice-President. The Hearing Officers under the current NFL drug-testing policy who serve as executive officers of the NFL have a clear conflict of interest in being asked to determine the validity of the league’s suspension of players. Whether or not they are actually impartial is almost irrelevant, because the outward appearance of partiality is unquestionable.
Proposal
The first, easiest and most obvious change is an adjudication system in which independent arbitrators decide the merits of all appeals. With arbitrators who are completely independent of the NFL and the NFLPA, the most obvious partiality objection is immediately eliminated.
The League does not need to outsource its drug-testing program to USADA to achieve this. Rather, the league could simply use the same arbitrator pool that USADA uses in its adjudication process. Admittedly, this type of change would require an amendment to the NFL drug testing policies. However, the amendment itself would be relatively simple to draft. For example, paragraph 10 of the NFL POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES could be amended to read as follows:
“As is more fully outlined in Appendix D, any player who is notified by the League Office that he is subject to discipline for a violation of this Policy is entitled to an appeal.
The League will designate a time and place for a hearing, at which a Panel of three Arbitrators from the NFL Arbitrator Pool will preside as the Hearing Panel. The NFL Arbitrator Pool shall consist of the Court of Arbitration for Sport (CAS) Arbitrators who are citizens of the USA. The Hearing Panel shall be selected as follows:
(i) The NFL shall send to the player a list of all names of persons in the Arbitrator Pool; and shall simultaneously designate one (1) arbitrator from the Arbitrator Pool.
(ii) Within five (5) calendar days following receipt of the Arbitrator Pool list provided by the NFL, the player shall designate one (1) arbitrator from the Arbitrator Pool.
(iii) The two (2) arbitrators chosen by the NFL and the player respectively shall choose the third arbitrator from among the remaining members of the Arbitrator Pool. The NFL shall furnish to the party-appointed arbitrators the Arbitrator Pool list. If the two (2) arbitrators chosen by the parties are unable, within five (5) calendar days following their selection, to choose the third arbitrator, then the party-appointed arbitrators shall so notify the NFL which shall notify the player. Within five (5) days of receipt of notice from the NFL that the party-selected arbitrators are unable to reach or have not reached agreement, the NFL and the player shall then each strike up to one third of the Arbitrator Pool and rank the remaining members in order of preference. From among the persons who have not been stricken by the parties, and in accordance with the designated order of mutual preference, the NFL shall invite the acceptance of one (1) arbitrator to serve. The third arbitrator shall serve as Chair of the Hearing Panel.
Arbitrators shall be compensated at a rate consistent with the current CAS rates.
Arbitrator fees shall be divided and paid in equal shares by the NFL and the NFLPA.
The player may be accompanied by counsel and may present relevant evidence or testimony in support of his appeal. Additionally, the NFL Players Association may attend and participate notwithstanding the player's use of other representation.
After the record has been closed, the Hearing Panel will issue a written decision, which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties. (If appropriate, a summary ruling may be issued, followed by a formal written decision as time permits.) Pending completion of this appeal, the suspension or other discipline will not take effect.”
Modifying the adjudication system in this manner provides for an appeal process that is free from conflicts of interest, and should eliminate the appearance of any actual or perceived partiality. Once both sides agree that independent arbitrators would improve the perceived fairness of the system, rewriting the rules themselves to reflect this change is fairly straightforward, as demonstrated above. This modification also satisfies most of the objections of those who repeatedly argue that the NFL should simply outsource its drug-testing program to WADA or USADA.
In Part Two, I will address the League’s system of fixed sanctions and propose a modified sanction system that is more equitable to the players.
A New Adventure
I am starting a blog. Why? I want to contribute an additional forum for ideas, discussion, healthy debate & information exchange on current topics in sports law, sports business and sports in general. Plus, blog is a funny sounding word. Say it! Blog …
This is how I how I see it working.
What: This blog is designed to inform and engage you on the above topics (sports law, sports business and sports in general).
Who: I will write regular blog entries on current topics in sports law and sports business that I find interesting, where I think that my opinion or comments might be interesting to others. Feel free to comment, get in on the conversation, ask questions, etc.
Ground Rules: (of course there are rules!)
I encourage, invite, welcome and want comments ---whether you agree or disagree - so long as (1) you are willing to include your name (actual name, no screen names please) with the comment (Blog alert: I personally find anonymous comments or comments by those hiding behind “screen names” to be frustrating and have little use for them), and (2) the comment adds value. How will value be determined? It’s my blog. I’ll be “the decider.”
Introductions and rules aside, it is my sincere hope that others will find this blog to be as valuable a resource as I have found the blogs I visit to be.
FYI: Many of the blogs I visit are written by established journalists. I believe blogs allow these journalists to write in greater depth than they might otherwise be able to or even to delve into topics that editors may view as too specialized for their readership. For example, check out Alan Abrahamson’s blog (http://blogs.universalsports.com/olympics/alanabrahamson).
Other blogs provide an opportunity for distinguished subject-matter experts to share their insightful opinions with an interested audience who might not otherwise have access to those opinions. In the area of sports law, the Sports Law Blog (http://sports-law.blogspot.com/) fits this description.
Here are my stats:
I have been a sports lawyer for over 10 years (and a lawyer for 20), with a particular area of emphasis in the area of anti-doping.
I also teach sports law as an Adjunct Professor at Southwestern Law School in Los Angeles, California.
I have defended over 70 athletes in doping cases around the world. I have handled these cases before the Court of Arbitration for Sport, American Arbitration Association, National Football League, Major League Baseball, Association of Tennis Professionals (“ATP”), Nevada State Athletic Commission, California State Athletic Commission, America’s Cup, and others. I have also represented numerous athletes in civil lawsuits, including products liability lawsuits arising from contaminated supplements that lead to doping suspensions. I have had the opportunity to represent some of the greatest athletes in the world, and have worked both with and against exceptional lawyers around the world. I also love dogs, but only large and athletic ones.
My expertise in the area of sports law has been noted by the Los Angeles Times (“one of the leading sports lawyers in the United States”), USA Today (“Athletes accused of cheating find perfect advocate”), San Jose Mercury News (“Defense never rests if Jacobs takes case, athletes want him when USADA calls”), Wall Street Journal (“A bad summer for athletes is good business for Jacobs”) and the Christian Science Monitor (“For athletes accused of taking drugs, a Perry Mason of their own”), among others.
Thank you,
Howard Jacobs
www.athleteslawyer.com
This is how I how I see it working.
What: This blog is designed to inform and engage you on the above topics (sports law, sports business and sports in general).
Who: I will write regular blog entries on current topics in sports law and sports business that I find interesting, where I think that my opinion or comments might be interesting to others. Feel free to comment, get in on the conversation, ask questions, etc.
Ground Rules: (of course there are rules!)
I encourage, invite, welcome and want comments ---whether you agree or disagree - so long as (1) you are willing to include your name (actual name, no screen names please) with the comment (Blog alert: I personally find anonymous comments or comments by those hiding behind “screen names” to be frustrating and have little use for them), and (2) the comment adds value. How will value be determined? It’s my blog. I’ll be “the decider.”
Introductions and rules aside, it is my sincere hope that others will find this blog to be as valuable a resource as I have found the blogs I visit to be.
FYI: Many of the blogs I visit are written by established journalists. I believe blogs allow these journalists to write in greater depth than they might otherwise be able to or even to delve into topics that editors may view as too specialized for their readership. For example, check out Alan Abrahamson’s blog (http://blogs.universalsports.com/olympics/alanabrahamson).
Other blogs provide an opportunity for distinguished subject-matter experts to share their insightful opinions with an interested audience who might not otherwise have access to those opinions. In the area of sports law, the Sports Law Blog (http://sports-law.blogspot.com/) fits this description.
Here are my stats:
I have been a sports lawyer for over 10 years (and a lawyer for 20), with a particular area of emphasis in the area of anti-doping.
I also teach sports law as an Adjunct Professor at Southwestern Law School in Los Angeles, California.
I have defended over 70 athletes in doping cases around the world. I have handled these cases before the Court of Arbitration for Sport, American Arbitration Association, National Football League, Major League Baseball, Association of Tennis Professionals (“ATP”), Nevada State Athletic Commission, California State Athletic Commission, America’s Cup, and others. I have also represented numerous athletes in civil lawsuits, including products liability lawsuits arising from contaminated supplements that lead to doping suspensions. I have had the opportunity to represent some of the greatest athletes in the world, and have worked both with and against exceptional lawyers around the world. I also love dogs, but only large and athletic ones.
My expertise in the area of sports law has been noted by the Los Angeles Times (“one of the leading sports lawyers in the United States”), USA Today (“Athletes accused of cheating find perfect advocate”), San Jose Mercury News (“Defense never rests if Jacobs takes case, athletes want him when USADA calls”), Wall Street Journal (“A bad summer for athletes is good business for Jacobs”) and the Christian Science Monitor (“For athletes accused of taking drugs, a Perry Mason of their own”), among others.
Thank you,
Howard Jacobs
www.athleteslawyer.com
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