Destroying samples? NHL drug testing policy gets curious revision in new CBA

As head of the Major League Baseball Players Union, Donald Fehr was widely criticized for fighting against the League’s push for comprehensive drug testing.

He cited privacy issues as the primary motivation. It was only until the dam broke on steroid scandals – including congressional hearings – that Fehr and the players union finally agreed to comprehensive testing.

One of the hallmarks of Fehr’s 2002 Joint Drug Prevention and Treatment Program agreement with the League: That samples taken from players, and records of those samples, be destroyed after they’re tested. This would ensure, for example, that samples taken during a time before a substance was banned couldn’t be re-tested to find if a player was using that substance after its ban.

As head of the National Hockey League Players' Association, Fehr negotiated the new Collective Bargaining Agreement with the NHL, including new rules governing drug testing.

Part of those rules: The “prompt and mandatory destruction of test samples and other related documents and records.”

In the previous CBA (2005), the topic of re-testing samples from players was addressed.

47.5 Prohibited Substances. The NHL and the NHLPA shall be responsible for maintaining the list of Prohibited Substances (the "Prohibited Substances List"). Upon receiving the Committee’s recommendations made pursuant to Section 47.2(d) above, the parties shall confer and agree upon the Prohibited Substances to be included on the List.

Changes to substances on the List may only be as negotiated by the NHL and the NHLPA. There shall be no retesting of samples based on newly discovered substances not included on the Prohibited Substances List at the time of the original testing.

Pretty straightforward, right?

But there was no language in the 2005 CBA about what becomes of the samples.

Enter Donald Fehr for the 2012-13 CBA negotiations, and enter this new language in the just-released CBA (s/t Cap Geek):

The responsibilities of the Program Committee shall also include, among other things, to … establish a policy for the prompt and mandatory destruction of test samples and other related documents and records

(The Program Committee, incidentally, is “comprised of an equal number of League and NHLPA representatives, and one consulting expert doctor nominated by each party” and meets annually to review and implement drug testing policies.)

If samples had been previously destroyed, it wasn’t something that was explicitly written into the CBA.

So if the samples can’t be re-tested, why destroy the samples? Because Fehr has seen what can become of them.

Consider back in 2004, when Major League Baseball and the Union didn’t destroy testing samples from Alex Rodriguez and other players before they were seized by the federal government. That’s because the 2003 samples had been subpoenaed by a grand jury, and Fehr said the Union decided “that it would be improper to proceed with the destruction of the materials.”

It’s hard to imagine the government taking the intense interest in NHL players that it did Major League Baseball, but clearly Fehr felt that "cover our behinds" language belonged in the new CBA. Today’s undetected performance enhancing drug is tomorrow’s banned substance, and it's not like hockey players haven't been caught up in high-profile arrests of steroid pushers before.

Just another wrinkle in the NHL’s new drug testing policy. Check out Steve Buffery of the Toronto Sun for his lament about the League’s policy on HGH.