Lost in Thursday’s back-and-forth between the NFL and the NFLPA regarding HGH testing is one fairly important point. The league has agreed to use third-party arbitration not only for HGH testing but also for all other forms of PED testing.
Both the NFL and the NFLPA have informed PFT that a deal on HGH testing would include arbitration for positive HGH results and other positive test results for performance-enhancing drugs. The lone sticking point remains the NFL’s desire to keep the appeal rights for violations arising from something other than a positive test in the hands of the Commissioner.
The negotiations, occurring primarily in connection with HGH testing, encompass the entire PED policy because HGH is considered to be a performance-enhancing substance. Changes to the league’s substance-abuse policy, which covers recreational drugs like marijuana, are being separately negotiated.
While the NFL has made a major concession by sacrificing the Commissioner’s exclusive ability to resolve suspensions arising from PED’s other than HGH, the NFL doesn’t seem to be inclined to budge on the matter of violations flowing from something other than a positive test.
“We’re talking about something that has been under the Commissioner’s authority for 50-plus years,” NFL senior V.P. of labor policy and government affairs Adolpho Birch told PFT by phone on Thursday afternoon. “It was something reaffirmed and agreed to by the union in the 2011 CBA. It is something that affects five percent or less of all matters that arise as violations under our policy.”
From the NFLPA’s perspective, insisting on arbitration isn’t about protecting wrongdoers (as the NFL has suggested) but protecting those who may be wrongfully accused.
And so HGH testing remains delayed because the NFL doesn’t want to yield on something that, by its own admission, happens in one out of 20 cases, or fewer. But if discipline for PED violations absent a positive test are so rare, why should either side dig in?
One potential solution would be to give the Commissioner preliminary appeal rights, with a third party reviewing the decision under a looser standard of review. This would give the players an extra layer of protection if, for example, Goodell’s decision were clearly erroneous, an abuse of discretion, and/or arbitrary and capricious.
Absent a compromise on that point, the NFL and NFLPA will continue to be at impasse as to the implementation of an agreement reached more than two years ago.