June 11, 2012

Bizball

Inside the 2012-16 MLB CBA: Major Changes Come to the League's Drug Policy

by Maury Brown

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This is Part Three of a multi-part series on MLB’s latest labor agreement. Part One addressed changes that impact the first-year draft. Part Two focused on the luxury tax and the minimum salary.

In the first installment of this series, I noted how it took 183 days from the time that the MLBPA and MLB reached a memorandum of understanding (MOU) on a new labor agreement until the document was released to the public. It was a long time, which speaks to the complexities involved in the union/management relationship in sports. And while the CBA was released on May 23rd of this year, the associated drug agreement was not.

That changed this past week; on Thursday, the league and union issued a statement on the changes to the drug policy from the prior agreement and released it in full.

It’s hard not to look back to see how far the league has come in terms of its drug policy and the attitude of the union around performance-enhancing drugs. Less than a decade ago, Gene Orza, then the COO of the MLBPA, said the following:

"Let's assume that (steroids) are a very bad thing to take," said Orza, who was speaking on a panel at The Octagon World Congress of Sports in 2004. "I have no doubt that they are not worse than cigarettes. But I would never say that to the clubs as an individual who represents the interests of players, 'Gee, I guess by not allowing baseball to suspend and fine players for smoking cigarettes, I am not protecting their health.'

"Whether it's good or bad for you, it's a far cry to say that because it's bad for you, you should participate in a structure which allows your employer to punish you for doing something that you shouldn't be doing," Orza said. "That's not my understanding of what unions do for their employees."

Flash-forward to Thursday, and here’s what the MLBPA had to say about the latest drug policy and the associated program:

“These latest changes and revisions to the Joint Drug Agreement reflect the players’ desire to have the strongest possible Drug Prevention and Treatment Program in professional team sports,” said MLBPA Executive Director Michael Weiner. “Today’s announcement reflects one of the greatest strengths of the Program – its ability to be improved through the collective bargaining process.”

So, what’s changed from the prior Joint Drug Agreement (JDA)? First-off, the delay in its release can be directly attributed to the former independent arbitrator, Shyam Das, overturning the 50-game suspension of National League MVP Ryan Braun for elevated levels of testosterone. In fact, the focus on the chain-of-custody aspect proved to be so impactful that a separate document on the collection procedure was created as part of the JDA. In the Braun case, that chain-of-custody was deemed to be broken because the collector did not take Braun’s specimen to a Fed-Ex for delivery in what was deemed a timely fashion. Changes also include modifying the appeals procedures of the program, including the circumstances under which procedural deviations will result in the invalidation of test results.  The policy was also modified around the collection procedures to clarify when collectors must deliver specimens to the courier and how specimens should be stored prior to delivery to the courier.

Outside of the fallout of the Braun ruling, there are several sweeping changes. The biggest addition is the addition of HGH blood testing during spring training, during the off-season, and for reasonable cause. In implementing HGH testing, MLB becomes the first league to actually conduct testing for human growth hormone (the NFL and NFLPA have an MOU to add HGH testing to their league but have not been able to reach a formal agreement and implement testing). You will note, however, that testing for HGH is not occurring during the regular season. While that has been occurring in the minor leagues, the players in MLB voiced concerns over blood-draws during the season and how that might affect them. In theory, this should change as players that have been in the minors come up to the bigs and are already used to it.  The league and union for the players have agreed to study expanding HGH testing to the regular season.

Another aspect of the drug policy that had previously raised eyebrows was the number of Therapeutic Use Exemptions (TUEs) for ADD and ADHD. Each season, approximately 100 players are granted TUEs, and many of them are for meds that address ADD or ADHD. Many times, the meds prescribed create “amphetamine-like” effects, and the league, seeing this, worked with the MLBPA to address the matter as part of the new drug agreement. The sides agreed to create a panel of recognized ADD/ADHD experts to advise the Independent Program Administrator (IPA), who oversees the drug program on Therapeutic Use Exemption applications for ADD/ADHD medications. They created another expert panel of medical professionals to advise the IPA on TUE applications for other medications.

One thing that has been frustrating for the media that tracks drug suspensions in MLB has been exactly what a player has tested positive for. Previously, MLB press releases simply said “performance-enhancing drugs,” while players suspended for PEDs in the minors had the substance listed. That will change going forward. As part of the new agreement, a public announcement of the specific substance that resulted in a player’s positive test result or discipline will be provided.

Previously, the league had to deal with a potential PR nightmare since players that had been suspended for PEDs were allowed to perform in the All-Star Game. This came to the forefront in 2009 when Manny Ramirez tested positive for PEDs and was precariously close to being voted into the All-Star Game. Now, players who are suspended for violating the drug program prior to the All-Star Break (including during spring training and the preceding off-season) will be ineligible to be elected or selected for the All-Star Game.

Other changes include:

• Increasing the number of random tests during the season and off-season
• Establishing a protocol for evaluating and treating players who may suffer from an alcohol use problem or who have engaged in off-field violent conduct
• Clarifying the rules for violations for use or possession of prohibited substances based on evidence other than positive test results (“non-analytical positives”)
• Increasing the penalties for criminal convictions for possession or use of drugs of abuse (including stimulants)
• The parties also added over 45 performance-enhancing substances and stimulants to the list of prohibited substances in the program since the publication of the May 2008 program, which can be found on pages 7-10 of the new drug policy

Overall, the changes keep baseball at the forefront of the other “big four” sports leagues in terms of efforts to remove PEDs from sports. There are (and likely always will be) loopholes by which players can get around the system (the current lack of testing for HGH during the regular season might be seen as one example). Still, it’s continued progress, especially in light of that quote by Orza in 2004. Maybe the statement by the league’s second-in-command (and the one who heads labor negotiations for the league) put it best:

“These modifications to expand upon the comprehensive nature of our Program are consistent with our efforts to ensure we are running the highest quality drug testing in professional sports,” said Rob Manfred, MLB’s executive vice president of economics and league affairs at the time of the policy being released. “This agreement is a reflection of our commitment to monitoring our Program and making upgrades in all possible areas in order to best serve our game."

Maury Brown is an author of Baseball Prospectus. 
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