The NFL prides itself on continuously looking for ways to improve. The still-unfolding controversy regarding Houston Texans linebacker Brian Cushing and his positive test for violating the league’s policy regarding anabolic steroids and related substances shows that, when it comes to performance-enhancing substances, the league has plenty of room to enhance its own performance.
The ultimate goal — both for the league and the NFL players’ union — should be to keep Congress from insinuating itself into the process, a prospect that likely would result in stiffer penalties, more stringent requirements, and (most importantly) the loss of control over a key aspect of the business of pro football.
Given the lessons learned from the Cushing case, here are five things the NFL and the NFLPA can do in conjunction with the ongoing collective bargaining agreement negotiations to protect the program from the eventual involvement of Congress.
1. Use different levels of punishment for different types of substances
Currently, the policy enumerates as prohibited substances 58 types of anabolic steroids, five types of hormones, 14 types of anti-estrogenic agents, 26 masking agents and 11 stimulants. Given the stigma that attaches to the use of steroids, why not incorporate a stiffer penalty for such infractions?
Given that players who test positive for one of the many banned substances routinely attempt to claim that they didn’t take a steroid, the penalty for taking a steroid should be greater. The use of a heightened sanction beyond the standard four-game suspension for a first offense would make it clear to the media and the fans whether a player’s claim that he didn’t take a steroid holds water.
It also would mesh with the expectations of the general public. Some banned substances are worse than others, and the rules should reflect that reality.
2. Test for HGH
No one will take the steroids policy seriously until the NFL and the union establish a procedure to test players for Human Growth Hormone, or HGH. Without a test, the policy has no teeth. Without teeth, there’s no deterrent. Without a deterrent, a high percentage of players will use HGH.
Or, as the case may be, they will continue to use HGH.
Last year, Tampa Bay Buccaneers fullback Earnest Graham suggested that 30 percent of all NFL players use HGH. Some think Graham’s estimate is too low. Possibly by as much as 70 percent.
3. Remove the lag between positive test and suspension
The testing program necessarily incorporates various delays. 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.
That’s exactly what happened in Cushing’s case. The problem is that he was permitted to continue to play while his appeal unfolded, and then the decision came well after the season during which the violation occurred.
Though it’s impossible to immediately suspend players who test positive during the regular season, the NFL and the players’ union must come together and trim the fat out of the process. Given the stakes, a month would be ideal; two months should be the absolute maximum.
4. Use independent arbitration
When it comes to suspensions imposed by the NFL, the league office maintains the ability to act as judge, jury, executioner, appeals court and reprieve-giving governor. The commissioner has the ultimate power to impose the penalty, and the commissioner has the ultimate power to consider the appeal.
The union wants to use independent arbitration to resolve the appeals. The NFL understandably wants to retain full control over the steroids program, including the resolution of the question of whether a suspension will be upheld. At a minimum, the NFL wants a concession from the union in exchange for giving up the ability to control the process.
That said, the entire program would be regarded as more legitimate and credible if any suspension ultimately comes from a neutral party — especially since players routinely claim that the league’s ultimate action represents a hypertechnical adherence to a convoluted protocol. If the suspension arose from someone with no actual or apparent agenda, it would be regarded as more powerful.
5. Abandon confidentiality once a suspension is upheld
Above all else, the league and the union must come up with a way to counter the self-serving assertions and leaks from players whose positive tests result in suspensions. Currently, the entire program is cloaked in confidentiality, preventing the league or the player’s team from commenting on the circumstances surrounding the positive test.
To be viewed as adequate, the process must be transparent. Once a suspension has been completed, the league should be able to provide to the media all relevant facts and circumstances surrounding the positive test, including the substance detected, the concentration measured, the reason for the presence of the substance on the banned list, and any other information necessary to a fair understanding of the basis for the significant decision to prevent a player from working for 25 percent of his annual work calendar.
These measures wouldn’t make the program perfect, but it would make it better. More importantly, it would help keep Congress from opting to add its own improvements.