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Talks continue toward HGH testing, but major roadblock remains


WASHINGTON - NOVEMBER 03: National Football League Commissioner Roger Goodell, Rob Manfred, executive vice president of labor and human resources in the Office of the Commissioner of Baseball, Major League Baseball, NFL Players Association Executive Director DeMaurice Smith, Michael Weiner, general counsel for the Major League Baseball Players Association, Travis Tygart, CEO of the United States Anti-Doping Agency, Gabriel Feldman, associate professor of law and director of the Sports Law Program at Tulane University Law School, and Jeffrey Standen, professor of law at the Willamette University College of Law (L-R), testify on Capitol Hill on November 3, 2009 in Washington, DC. The hearing focused on doping in professional sports.(Photo by Brendan Hoffman/Getty Images) *** Local Caption *** Roger Goodell; Rob Manfred; DeMaurice Smith; Michael Weiner; Travis Tygart; Gabriel Feldman; Jeffrey Standen

Brendan Hoffman

For most of the two-plus years since the NFL and NFLPA agreed to conduct HGH testing, the parties hadn’t been talking about how to make it actually happen. So it’s a good thing, we suppose, that they continue to talk.

It’s not so good, however, that they continue to fail to strike a deal.

They have a deal on the key issues relating to HGH testing. The agreement includes third-party arbitration regarding discipline imposed for positive tests. The sticking point continues to be whether the Commissioner will have exclusive jurisdiction over discipline imposed for reasons unrelated to a positive test.

Per Albert Breer of NFL Network, the two sides met again this week to continue to discuss the issue. Breer writes that it’s not NFLPA executive director DeMaurice Smith but the board of player representatives that is pushing for Commissioner Roger Goodell to yield his ability to handle appeals of discipline imposed for violations of the law relating to HGH and other performance-enhancing drugs. The players, according to Breer, cite last year’s bounty case as the reason for their unwillingness to allow Goodell to have complete say over the discipline imposed and the appeal process.

While their sensitivity makes sense given the decision of former Commissioner Paul Tagliabue to scuttle the discipline imposed by Goodell against various current and former Saints players, this specific situation exhibits one major difference. Before the league can impose discipline for violations of the law relating to PEDs, some third-party governmental entity must find that a violation occurred.

Of course, not every case of Commissioner discipline for matters unrelated to positive drug tests springs from a finding by a judge or a jury that one or more laws were broken. Maybe the way to break the stalemate would be to allow Goodell to retain full jurisdiction over discipline imposed following guilty pleas, convictions, pleas of no contest, etc. regarding performance-enhancing drugs, and to include any punishment for behavior independent of a legal finding within issues that will be subject to outside arbitration.

We don’t expect either side to borrow that idea (although they’re each welcome to it). It’s an example of the kind of creativity that both parties must be willing to embrace in order to finally launch HGH testing.

Absent such creativity, it’s hard not to think the NFL, the NFLPA, or both don’t really want HGH testing to be implemented until, perhaps, the next presently-undetectable PED has been developed.