There was a good editorial piece today in the Hartford newspaper (online) - http://www.courant.com/sports/hockey/hc-jacobs-taurasi-column-0217-20110217,0,6640928.column. The Arizona Republic also had a comprehensive story - http://tucsoncitizen.com/sports-news/2011/02/16/turkey-lifts-provisional-doping-ban-on-diana-taurasi/
Aside from the fact that this case should never have been brought in the first place, it certainly should never have been publicized prior to any legal review taking place. The mere accusation of doping is damaging by itself, and being publicly charged and then later cleared never fully restores the athlete.
In Diana Taurasi's case, look what happened when her case was reported by the media. Her team terminated her, likely costing the team the European championships. Bloggers immediately jumped on the story with all of their own prejudices and personal motivations (for example, some sports lawyers used the case for their own social media marketing, getting the facts wrong in the process). Most traditional journalists wrote the standard "doping story," some relating the case to the modafinil positives that arose from the BALCO scandal. Shaun Assael at ESPN wrote a good piece about the scientific and legal issues that ultimately led to her being cleared (http://sports.espn.go.com/wnba/news/story?id=6089810).
I am honored that Diana Taurasi entrusted me with the difficult task of proving her innocence.
Wednesday, February 16, 2011
Tuesday, February 15, 2011
2 INTERESTING ARTICLES IN TODAY'S NEW YORK TIMES (ONLINE)
While there will certainly be much more to come, the NY Times so far has the best summary of the recent Contador exoneration in Spain - http://www.nytimes.com/2011/02/16/sports/cycling/16contador.html.
NY Times also posts a summary of a recent evidentiary ruling in the Barry Bonds case, which is set to start trial in just over one month-http://www.nytimes.com/aponline/2011/02/15/sports/baseball/AP-BBO-Bonds-Steroids.html?_r=1&ref=sports.
NY Times also posts a summary of a recent evidentiary ruling in the Barry Bonds case, which is set to start trial in just over one month-http://www.nytimes.com/aponline/2011/02/15/sports/baseball/AP-BBO-Bonds-Steroids.html?_r=1&ref=sports.
Wednesday, October 27, 2010
SNOWBOARDING’S PATH TO THE OLYMPIC GAMES: A HISTORY LESSON FOR COMPETITIVE CHEERLEADING AND DANCE
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.
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, 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.
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