By Jordan Kobritz
On July 22, 2010, Major League Baseball (MLB) announced it would begin testing Minor League Baseball (MiLB) players for human growth hormone (HGH), becoming the first professional sports organization in the U.S. to test players for HGH. The announcement was controversial in some circles because testing for HGH requires a blood sample as there is currently no reliable urine test for HGH.
Similar to non union employees elsewhere, MiLB players have no one to represent them in negotiating drug testing procedures, penalties and appeals. However, their big league brethren are represented by the Major League Baseball Players Association (MLBPA). The lack of a union raises two major questions concerning the drug policy in MiLB: Can MLB unilaterally implement any provisions relating to drug testing of MiLB players? And two, what are the differences between the MiLB drug program, which is imposed by MLB, and its MLB counterpart, which is negotiated by MLB and the MLBPA? While question number one is interesting in its own right, this article will address the second question.
The author examined both the Joint Drug Agreement (JDA) between MLB and the MLBPA which covers all players who are members of the union, and Major League Baseball’s Minor League Drug Prevention and Treatment Program which applies to players who are under a Minor League contract, i.e., all non 40-man roster players.
The current JDA went into effect in the spring of 2006 and was revised on May 23, 2008. The JDA is scheduled to expire on December 11 of this year, concurrent with the expiration of the Collective Bargaining Agreement (CBA) between MLB and the MLBPA, also known as the “Basic Agreement.” However, the parties involved in the MLB drug program conduct an annual review to discuss potential changes to the program based on developments during the past year. On the other hand, MLB is free to update the MiLB drug program at will. The author was provided with a copy of the current MiLB drug program which is effective for the 2011 season and the 2011-2012 off season.
It should be noted at the outset that due to space limitations, this analysis is not intended to be exhaustive. However, it will highlight several differences between the two programs as well as a number of similarities.
The major reason for the differences between the two programs is apparent in their respective titles. The MLB program includes the word “Joint” in the title, indicating it is a product of, and is administered jointly by, MLB and the MLBPA. The MiLB program makes no pretense of negotiation. The program is a product of and administered by the Commissioner’s office.
The union’s influence in the MLB program is obvious from reading the opening paragraph, which includes references to education, deterrence, and a cooperative resolution of disputes. The last sentence of the opening paragraph states that disputes arising under the program, “unless otherwise provided herein, shall be subject to resolution through the Grievance Procedure of the Basic Agreement,” an option that is obviously unavailable to MiLB players who are not on the 40-man roster.
Terms of the MLB program provide for an Independent Program Administrator, while the Commissioner’s office appoints a three-member Minor League Health Policy Advisory Committee (MLHPAC) to administer the MiLB program.
Like the MiLB program, the JDA includes HGH on the list of prohibited performance enhancing substances. However, the MLBPA has not agreed to blood testing. Therefore, while both programs spell out urine collection procedures in detail, the JDA does not include a section on blood specimen collection, as the MiLB program does.
Each program uses different agencies to collect and test specimens. For the MLB program, Comprehensive Drug Testing, Inc. (CDT) is designated as the collection agency. The World Anti-Doping Agency’s (WADA) Montreal, Quebec lab analyzes samples. MLB uses the National Center for Drug Free Sport to collect and test specimens under the MiLB program.
While each program provides for appeals, both the grounds for appeal and the appeal process are different. Under the JDA, MLB players have the opportunity to appeal both a positive test and the discipline imposed for violating the program. Appeals are made to the Arbitration Panel defined in Article XI(A)(9) of the Basic Agreement. Minor League players are only permitted to appeal the imposition of discipline and such appeals are handled through the Commissioner’s office.
Both programs contain sections on prohibited substances which include lists of drugs of abuse, so-called recreational drugs like cannabis; performance enhancing substances such as anabolic steroids; and stimulants such as amphetamines. Players who are suspected of using or who are using drugs of abuse may be placed in a Clinical or Administrative Track (i.e., a treatment program). There are a number of differences between the two tracks, but the major difference is that players who voluntarily come forward seeking treatment are placed in the Clinical Track and those who test positive for drugs of abuse – or who fail to satisfactorily maintain their treatment program while in the Clinical Track – can be placed in the Administrative Track.
Another difference between the two programs is the discipline imposed for positive drug tests. MLB and MiLB players who test positive for PEDs are disciplined similarly under the two programs, a suspension of 50 games for the first positive test, 100 games for the second positive test, and permanent suspension for a third positive test. However, MLB players may apply to the Commissioner for “discretionary reinstatement” after a period of two years, an option which is unavailable to MiLB players.
Unlike the MiLB drug program, the JDA imposes less discipline for a positive test of a stimulant than it does for a positive PED test. And after a first positive test, which places the player in the Administrative Track, the MiLB program imposes a 50 game suspension for a second positive test, a 100 game suspension for a third positive test, and permanent suspension for a fourth positive test of any drug of abuse. Under the MLB program, players who fail to comply with their Treatment Program for drugs of abuse risk suspensions ranging from a minimum of fifteen games for a first failure to comply to at least one year for a fourth failure to comply.
Each program allows for a Therapeutic Use Exemption (TUE), which provides an exemption for players who are authorized to use a prohibited substance with a prescription provided by a licensed physician. There are extensive notice and documentation requirements for players seeking a TUE.
There are significant differences between the two programs with regard to the number of authorized tests. MiLB players are subject to “unlimited, random, unannounced” in-season testing. While there are no limits on the number of off-season tests permitted, it should be noted that the word “unlimited” does not appear in the section regarding off-season testing.
The JDA restricts the number of tests in several respects. All MLB players are subject to testing within five days of reporting to Spring Training. Each player is then subject to one additional unannounced test during the season. A total of 1,200 random tests are permitted each year, but only 375 of those were permitted during the off-season prior to this year (the number is increased to 500 beginning this off-season) and off-season testing is specifically limited to PEDs.
It should be noted that both programs encourage players to seek treatment if they are involved with drugs. There are repeated references to confidentiality in each program and, as one would expect, disclosure of personal information is severely limited.
While the above is not intended as an exhaustive discussion of the difference between the MiLB and MLB drug programs, it does highlight several differences as well as similarities between the two programs.
Jordan Kobritz, J.D., CPA is an Assistant Professor of Sport Management and Sport Law at Eastern New Mexico University and teaches the Business of Sport at the University of Wyoming. He is the former owner of two Minor League Baseball teams, the Maine Guides in the Class AAA International League and the Daytona Cubs in the Class A Florida State League. He gratefully acknowledges the helpful assistance of MiLB and MLB in the preparation of this analysis. Jordan can be reached at jordan.kobritz@enmu.edu
References
Major League Baseball’s Joint Drug Prevention and Treatment Program. Retrieved from: http://mlb.mlb.com/pa/pdf/jda.pdf
Major League Baseball’s Minor League Drug Prevention and Treatment Program. Provided by MiLB.
Schlegel, J. (2010). Baseball to begin HGH testing in Minors. Retrieved from: MLB.com http://mlb.mlb.com/news/article.jsp?ymd=20100722&content_id=12522320&vkey=news_mlb&c_id=mlb
