hGH Testing and the Question of Fairness

The focus of the NFLPA as we move into the 2013 season is on transformation. Transformation in players’ health and safety and transformation of players’ rights at work. DeMaurice Smith, the Executive Director of the NFL Players Association, used the word several times in his “State of the Union” address this week. Smith said, “the NFLPA is looking to transform what it means to be involved in a sport where we know that injuries are part of the game.”

HGH Test 350x350After acknowledging that football is a dangerous sport, Smith said, “We won’t let people get to a point where football is viewed as a sport played by gladiators.” He emphasized that players, like all employees, are entitled to basic rights and protections.

The NFLPA’s new $100 million partnership with Harvard and the presence of Dr. Zafonte and Dr. Lee Nadler underscored their commitment to transform player health and safety. New Orleans itself, the host city for this Sunday’s Super Bowl, is a not-so-gentle reminder of the union’s commitment to ensuring player rights and due process – Bounty.

It is against this backdrop and pursuit of transformation that the recent discussion over hGH testing should be viewed. “NFL players originally proposed an hGH testing system that included players’ rights to challenge the scientific basis of the test in their appeals in November of 2011, and we hope the NFL will ultimately conclude with us that a ‘gold standard’ testing system necessarily includes a system of fair due process and impartial review,” said Heather McPhee, Associate General Counsel of the NFLPA.

“The irony is that the justification for reviewing commissioner discipline is the NFL’s own decision to review the Commissioner’s discipline in Bounty. The right result, was the result of the right to process,” said DeMaurice Smith.


Comparison of MLB/MLBPA Burdens and Challenges Regarding hGH & NFL and NFLPA’s Proposals


NFL and NFLPA’s Proposals

[I]n any case involving a positive test result for hGH, 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 Players Association and the Player may present any evidence in response, and the Parties’ agreement to allow the test to be conducted shall be irrelevant to the Arbitration Panel’s determination as to whether the Commissioner’s Office has met that burden. The Commissioner’s Office is not required to otherwise establish intent, fault, negligence, or knowing use of hGH on the Player’s part to establish a violation.Affirmative Defense: A Player is not in violation of the Program if the presence of the Prohibited Substance in his test result was not due to his fault or negligence. The Player has the burden of establishing this defense. A Player cannot satisfy his burden bymerely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the “positive” test result. 

Different section of MLB/MLBPA Policy (not about hGH specifically):

6. A Player may challenge a positive test result at any time on the basis of newly discovered scientific evidence that questions the accuracy or reliability of the result. Such a challenge may be brought even if the result previously has been upheld by the Arbitration Panel.


1) NFL’s proposal on (for all substances, including hGH):Blood Testing: Following the completion of a population study and certification of the testing decisions limits as agreed to by the Parties, all Players shall be eligible to be tested for growth hormones through serum (blood) analysis. Upon appeal of a positive test result, the introduction of the laboratory documentation package (with chain-of-custody forms and Chief Forensic Toxicologist’s certification) shall establish a prima facie violation of the Policy. In the absence of clear evidence to the contrary, such package will be deemed full and complete for the purpose of evaluating the integrity of the chain-of-custody and test results and admissible without regard to hearsay challenge.In addition, the specimen collectors, Independent Administrator, Consulting Toxicologist and testing laboratories will be presumed to have collected and analyzed the Player’s specimen in accordance with the Policy. The Player may, however, rebut that presumption by establishing with credible evidence that a departure from the Policy’s stated protocols occurred during the collection and/or processing of his specimen. In such case, the League shall have the burden of establishing that the departure did not in fact occur or did not materially affect the validity of the positive test or other violation.


2) NFLPA proposal sent 11/11; struck/rejected by NFL: If the arbitration involves an adverse analytic finding for human growth hormone (hGH), there shall be no presumption that the science supporting the test method or the application of the method by the Laboratory is valid. It shall be the burden of the Management Council to prove by clear and convincing evidence that the test method and the application of the test method are scientifically valid. The Player shall be permitted during the arbitration to challenge the science supporting the test method used in his case and the application of that test method to his particular sample.


“We hope that the NFL will agree that our players, like professional baseball players, are entitled to an hGH testing protocol that includes the right to pursue appeals utilizing any evidence in the player’s defense,” McPhee continued. “Players who have been accused of a violation face severe consequences for their careers and reputations. Like baseball players, they deserve the right to robustly appeal each case on its own merits.”

“NFL players remain committed to ensuring that all men who play professional football are clean from performance enhancing substances, including hGH,” said McPhee.

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