More than a year-and-a-half after signing a collective bargaining agreement that provided for human growth hormone testing for NFL players, the league and the NFL Players Association seem to be closing in on a deal to implement the program in advance of the 2013 season.
The two sides have recently exchanged written proposals, and union leaders will study and discuss the NFL's latest offer when they gather next week at the Atlantis Paradise Island Resort in the Bahamas for the NFLPA's annual meeting,
However, as the two sides haggle over the remaining points of contention and move toward a system of third-party arbitration over appeals of all positive drug tests, it’s clear that the players’ distrust of commissioner Roger Goodell is spurring the union to drive a hard bargain. In the wake of Goodell’s handling of the New Orleans Saints’ pay-for-injure scandal, union leaders and their constituents seem united in their belief that the commissioner enjoys too much power.
"The long and short of it is, we're not going to agree to a system that doesn't give the player full due-process rights on HGH," NFLPA executive director DeMaurice Smith told Yahoo! Sports on Thursday. "That's where we started, and that's where we'll end up. We believe in collective bargaining. The fact that the league would rather force us to accept something that's not fair, rather than bargaining for it, is worrisome."
Despite public pressure from the NFL, which has accused them of stalling, and from two U.S. Congressmen, who earlier this year chastised the union for its "remarkable recalcitrance," players have held firm on their insistence that Goodell surrender some of his existing power.
The league has already agreed to cede its authority over appeals of all positive drug tests (recreational and performance-enhancing) to a neutral, third-party arbitrator, among other concessions.
"There are no true differences here, only manufactured ones," NFL spokesman Greg Aiello said Friday. "We fully share the union's belief in reliable, scientifically-valid testing. That is why we want to use the same test used in baseball, basketball, hockey, the Olympic games, and every other sport in which HGH testing takes place.
"As to the appeals process, we offered — two years ago — to have all appeals of drug and steroid tests heard by third-party arbitrators. More recently, the union said it wanted the same appeal process used in the Major League Baseball program and we have offered to do exactly that."
However, according to a source familiar with the negotiations, the players also want to extend third-party arbitration to cover what is known in the drug policy as "other appeals" — offenses which do not involve positive drug tests but nonetheless subject the player to discipline.
For example, if a player is pulled over for speeding, and a banned recreational substance such as marijuana is found in his possession, he would currently be subject to Goodell's discipline, with no ability to appeal the penalty to an outside arbiter. The same is true of alcohol-related arrests, such as when a player is arrested for driving under the influence but later pleads guilty to a lesser charge like reckless driving. And arrests for possession of performance-enhancing drugs such as anabolic steroids would also fall under this umbrella.
The players are holding firm on another remaining point of dispute: The timing of blood draws required for HGH testing. The league has insisted that the blood be procured on game day, while union negotiators are vehemently opposed to that prospect. Said one union source: "That is absolutely never going to happen."
The NFLPA's tough talk is noteworthy given the persistent political pressure being applied by U.S. Representatives Darrell Issa and Elijah Cummings of the House Oversight and Government Reform Committee. Issa, a California Republican who chairs the committee, and Cummings, the ranking Democrat from Maryland, have threatened to ask players to testify before their committee.
In addition, Y! Sports has learned that the committee has contacted several players in an effort to have direct communications about the HGH issue, an apparent reaction to Issa's and Cummings' prior public questioning of whether the union's position "is consistent with the beliefs of rank and file NFL players."
One player recently contacted by Cummings' office, Baltimore Ravens linebacker Brendon Ayanbadejo (one of the team’s player reps), said he would be "willing to talk" to the Congressman, provided an NFLPA-appointed attorney was present.
Asked if he and his fellow union members felt pressured by the committee to agree to a deal, Ayanbadejo replied, "No, not really. It’s not about beating your chest or touting yourself to try to champion something. In the end, cooler heads are going to prevail."
Some union officials were even less thrilled with comments made at last month's NFL scouting combine in Indianapolis by Adolpho Birch, the league's senior vice president of law and labor policy.
"It has been a stall," Birch told reporters. "I don't know if it is a tactic. There is absolutely no reason for this to have taken this long and for us to not have testing implemented. We should have been more than a year into this by now."
Longtime Indianapolis Colts center and NFLPA executive committee member Jeff Saturday, who officially retired on Thursday, responded via email: "We heard what Adolpho said and he knows better than to accuse us of stalling. In fact the main issue of trust and credibility in a program lies with him. He doesn't have the greatest track record when it comes to players."
This was a reference to the StarCaps controversy stemming from the suspensions received by a handful of NFL players who tested positive for Bumetanide, a diuretic contained in a supplement that they had been led to believe did not contain any banned substances — prompting a prolonged legal challenge. In 2010 a Minnesota judge, Gary Larson, chastised Birch for failing to warn both the FDA and the NFLPA that the supplement (StarCaps) contained Bumetanide.
The Saints' so-called "bounty" scandal, for which Goodell issued suspensions to four players last May, also caused resentment among players. Former NFL commissioner Paul Tagliabue, appointed by Goodell to handle the players' appeals, overturned the suspensions in December and criticized his successor's handling of the case in his ruling, bolstering players' belief that the commissioner has too much unchecked power.
According to a union source, NFLPA negotiators went so far as to broach the idea of extending third-party arbitration to all player discipline, which would take away Goodell's current appellate power under the personal-conduct policy. The proposal, the source said, was summarily rejected by an owner who was present at the bargaining table. It is not likely that Goodell would surrender this power unless heavily leveraged by the union, and with more than eight years remaining before the current CBA expires, this is likely a non-starter for the NFLPA.
The union, however, remains emboldened in its push for an HGH testing deal that extends third-party arbitration to "other appeals," among other matters pressed by the NFLPA.
"The lessons from StarCaps and Bounty would cause anyone to undeniably conclude that you need to have a due process system to ensure fairness," Smith said. "If fairness is what you truly believe in, you'd want a system with a strong due process. The problem right now is players don't believe the league office wants fairness, and if history has taught us anything, why would they?"
On a positive note, most of the remaining sticking points between the league and union over HGH come down to specific language. For example, the NFLPA pushed for the inclusion of four sentences that mirror the recently adopted HGH testing policy implemented by Major League Baseball after negotiations with its players association.
The exact wording stipulates that the commissioner's office "shall have the burden of establishing the presence of HGH in the Player's blood specimen. As part of meeting that burden, the Commissioner's office shall be required to establish the accuracy and reliability of the blood test administered to the Player." The policy allows the union and the player the opportunity to present "any evidence to challenge the accuracy and reliability of the test."
The league's latest offer, sent earlier this week, went well beyond the scope of those four sentences concerning HGH. Instead , NFL officials sent three pages of language mimicking that of the MLB/MLBPA drug policy, which one union source described as superfluous. "This will slow things down even more," the source complained. "We just wanted those [four] sentences, not the whole baseball drug policy."
Not surprisingly, some players are bothered by the perception that the delay over HGH testing's implementation is their doing.
"In my experiences, patience is not always easy or enjoyable, but the results are usually worth the wait," former Philadelphia Eagles and Denver Broncos safety Brian Dawkins, an NFLPA executive committee member, said via email. "It's definitely frustrating for us as players to not have a test in place, but we can't simply agree to a test because all of us are frustrated. It has to be the right test and the right process for a player to be able to challenge it.
"I was blessed to play in this league for 16 years. And I can proudly say I accomplished that feat under the rules that governed us all. While we all want cheating out of the game, we know that no test is 100-percent foolproof. And I also know that the NFL has not yet given us what MLB has so far as our ability to challenge the science and full neutral arbitration. We want an HGH test just as bad and in most cases to a greater degree than many will ever care to understand, but we want it the right way."
After reviewing the latest NFL offer in the Bahamas next week, NFLPA officials will present a written response to the owners. They, in turn, can discuss the union's position at the annual league meeting, which will take place from March 17-20 in Phoenix.
Shortly thereafter, the two sides are likely to return to the bargaining table in a push to complete a deal. In the meantime, Smith believes the league needs to come to terms with the reality that pressuring the players into an unfavorable HGH agreement won't work.
"The league acts like it's their drug program," Smith said. "It's as much ours as it is theirs. They forget that."
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