* By Eric H. Joss
Paul, Hastings, Janofsky & Walker LLP
Recent reports of alleged steroid use among professional baseball players have made drug testing in professional sports a pivotal issue. The Major League Baseball Players’ Association (“MLBPA”) has historically rejected the implementation of random suspicionless drug testing, characterizing it as an unreasonable invasion of privacy.
However, the announcement by one former player that he won the 1996 National League Most Valuable Player Award while taking steroids coupled with the admission of another player of steroid use and the allegation that at least 85 percent of current players were also using performance enhancing drugs, prompted a public outcry for more stringent drug testing. According to some, this was an outcry that even the players’ union could not ignore. As a result, Major League Baseball (“MLB”) and the MLBPA agreed to include a mandatory steroid testing and penalty scheme in their 2002 collective bargaining agreement should the initial tests produce positive results for at least five percent of those tested. As a result of this agreement, 1,439 anonymous tests were given, and it was reported that somewhere between five and seven percent of the tests came back positive.
Drug Testing as a Controversial Tenet of Collective Bargaining
Drug testing traditionally has been held to be a condition of employment and thus a mandatory subject of collective bargaining. As such, it has been found that a drug testing regime may not be implemented unilaterally without violating Section 8(d) of the NLRA. In an effort to balance the need for drug testing while also protecting the interests of the players, the 2002 agreement between MLB and the MLBPA reflected an emphasis on player test confidentiality. Confidentiality was a critical point of negotiation between the union and management. The random steroid testing that was to occur in 2003 was intended only to be used for survey purposes: if the random player tests surpassed the five percent threshold, the league would be allowed to invoke a strict testing policy in 2004.
However, recent federal court action threatens the future of this breakthrough agreement between MLB and the MLBPA. The Bay Area Laboratory Co-Operative (“BALCO”) matter implicated professional baseball players in a steroid distribution ring and resulted in a grand jury indictment of four non-athletes. As a result, several baseball players gave grand jury testimony regarding their involvement. The grand jury subsequently subpoenaed the two companies MLB hired to run the drug tests, Quest Diagnostics and Comprehensive Drug Testing. The grand jury presumably sought to obtain the athlete test records in order to determine if any player lied during his testimony about any involvement with steroids. While MLB held strong in its conviction to “defend [their] labor agreements” and not breach the confidentiality of the drug tests, ultimately, the federal government prevailed and obtained the results as well as the actual samples taken from selected players.
‘Outing’ Steroid Users: Does It Harm Players More Than Help Them?
The tension between the societal responsibility to punish those engaged in illegal drug use and the societal need to respect private labor agreements could result in further harm for those players who are most in danger. Many surmise that should the players’ test results become evidence in an upcoming trial, and therefore become public record, any hope of continuing the trend toward a zero-tolerance drug use policy will be extinguished permanently. The release of results from random drug tests violates one of the major tenets of the bargaining agreement – that the “testing would be anonymous and confidential.” The agreement states:
The confidentiality of the Player’s participation in the Program is essential to the Program’s success.
This is also emphasized by the fact that the punishment structure of the agreement retains the player’s anonymity until his second positive drug test. A first offense only triggers treatment.
There are several athletes who are outspoken regarding their anti-steroid beliefs and have made it no secret that they wish those involved would face public scrutiny. Additionally, many believe that publicity is the ultimate, and maybe the only, deterrent for those who are tempted to try steroids in order to reach a level of play comparable to those who are already on performance-enhancing drugs. However, the gravamen of the argument against outing steroid-using players lies in the fact that the issue of drug testing continues to be treated as a mandatory subject of bargaining and, therefore, any drug testing policy must have the consent of the players’ union. With the risk of public exposure, it does not seem likely that the union will agree to a testing program that cannot guarantee the anonymity of its members.
Moreover, while the Baseball Commissioner is adamant that the integrity of baseball be preserved by eradicating steroid use completely, some say that the owners themselves are not as quick publicly to chastise their players. Stronger, bigger players make the game itself more exciting to watch. Without big name draws, it is suggested that owners could see lower fan interest in the game, resulting in diminished ticket sales and profit losses.
Some argue that the sports industry has already seen the reluctance to punish players. As an example, some believe that the National Football League’s (“NFL”) policy was not applied with full force to three NFL players involved in the tetrahydrogestrinone (“THG”) steroid scandal. Rather than being suspended from play, the NFL players implicated were merely fined three game checks based on their 2003 salaries. In its defense, the NFL justified the punishment by emphasizing that the current drug policy did not specifically address this new form of steroid. As a result, NFL Commissioner Paul Tagliabue and NFL labor executive vice-president Harold Henderson were commended for “realiz[ing] the need to be flexible.”
The ramifications of this failed contractual confidentiality guarantee stretch far beyond the boundaries of the baseball field. As expressed by some, concern that the “continuation of tests in all leagues will be greatly diminished . . . by compromising the entire issue of drug testing” could lead the issue of drug testing to become “very contentious [during the] collective bargaining process.” Thus, there is a tension between trying to maintain the integrity of professional sports and the individual player’s desires to reach new levels of excellence in his game.
This article appeared in a paper presented in Los Angeles at the ABA Forum on the Entertainment and Sports Industries. It is being reprinted with the permission of its author, Eric H. Joss, a partner with the law firm of Paul, Hastings, Janofsky and Walker LLP. The intent of the paper was to collect and report, for discussion purposes, on certain developments in the law of professional sports. The paper was not intended to advocate any particular point of view nor does it reflect any particular view of the author.