We (and others) have been hammering away at the protracted delay between the collection of Brian Cushing’s hCG-tainted urine sample and the finalization of the decision to suspend him for four games. Though an eight-month lag between sample collection and suspension seems to be, on a “know it when you see it” basis, far too long, a certain amount of delay is inherent to the process.
As we summarized the overall flow of the events in a recent item for SportingNews.com, “From the collection of the urine sample to the testing of the sample to
the verification of the positive result to the notification of the
player to the exercise of appeal
rights to the scheduling of the appeal hearing to the possible
rescheduling of the appeal hearing because of the specific calendars of
the persons who need to attend to the submission of post-hearing written
briefs to the deliberation over the information to the preparation of a
letter upholding the appeal, several months quickly can pass.”
And here’s an important point to keep in mind as to the commencement of the process in Cushing’s case: the sample was collected in September. It’s our understanding that, depending on the item found when the first sample -- the “A” sample -- is screened, the confirmation test on the second sample -- the “B” sample -- can take some time. In some cases, it can take up to two months to reach the conclusion that a banned substance appears in a given sample.
Then, once the player is notified that a positive test has been confirmed, the process essentially becomes a legal proceeding. Indeed, ESPN’s Chris Mortensen said during Wednesday’s NFL Live that Cushing has spent more than $20,000 in legal fees during the appeals process.
“It’s not unusual for some cases to take a lengthy amount of time from specimen collection through the appeals process and the announcement,” NFL spokesman Greg Aiello said in a statement that we received via e-mail this morning. “All of the time periods and protocols in place are designed to ensure that the result is accurate and the player has every appropriate due process protection. Requirements such as notice, independent verification, additional investigation, hearing rights and lab procedures ensure these objectives, but they also add steps and time.”
Lawyer David Cornwell, who has represented many players in these proceedings, agrees that the process takes time -- and he believes that the process should not be rushed.
“Out of all the issues that need to be addressed regarding the terms and
application of the NFL’s Steroid Policy, the timing of Cushing’s appeal is
pretty far down the list,” Cornwell tells us via e-mail. “The last thing the NFLPA and NFL should do is allow a partially informed
media and ill-informed third party ‘experts’ drive the application of the
Policy. The most important fact in Brian’s case is that, apparently, the
Policy worked.
“There continues to be an insidious distinction between the man who plays
football and the football player that tends to drive debates like this one. Brian had the absolute right to exhaust his appeal rights. In so doing, if
awards and other collateral issues were impacted, so what? This is not a
perfect world. When these imperfections arise, it is untenable that an
effort to correct them almost always contemplates eroding the rights of the
men who play the game. Why should appeal rights for NFL players be any
different from those in other working place-testing programs?
“From poor communication between the parties regarding specific procedures
under the Policy to disclosure issues, confidentiality issues, and the
troubling interplay between ‘strict liability’ and the continuing practice
of unregulated supplement manufacturers to intentionally lace products with
prohibited substances to improve product performance and steal market share,
there are plenty of issues that need to be addressed before anyone gets
bogged down with timing issues for appeals.
“In Cushing’s case, the testing process worked. The appeal process worked.
If there is collateral damage along the way, so be it.”
Still, should the process require eight months?
“It is rare that appeals take that long,” Cornwell said. “But, when they do, it is rare that it is
not legitimate. So, it does not make sense to change the Policy and impact all
appeals to address the rare instance when an appeal is just gaming the process.
I don’t represent Cushing but I had an appeal last year where there was a
follow up evaluation process that took months because that what medicine and
science required.”
Though we continue to be reminded of the notion that “justice delayed is justice denied,” we suppose it’s better for the league to take the time to get it right than to fail to catch cheaters at all -- or to suspend men who should not have been suspended.
Still, good luck persuading the average fan that eight months isn’t too long from collection to suspension, especially when anti-doping experts claim that such a lag “makes a mockery” of the process.
Perhaps the answer comes from the confidentiality of the program. We’ve suggested that, once the suspension is finalized, all relevant information should be disclosed. If the disclosure includes an explanation of the reason for any delays, the criticism may be softened.
