Letter responding to Commissioner Selig regarding
changes to the Joint Drug Agreement of the CBA - Steroid Policy
26 September 2005
(Original by mail)
Allan H. Selig
Commissioner of Baseball
777 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Re: Joint Drug Agreement
I write with respect to our ongoing discussions regarding our steroid testing agreement. We both share a common interest and commitment to ensure our game is free of illegal performance-enhancing substances. We both understand that our current program is working, as we predicted it would, but that its success has not satisfied some of those who criticize us. Given our shared interests and the Association’s evident willingness to compromise, our failure thus far to reach a comprehensive new agreement is both frustrating and disappointing, all the more so because the players have agreed to nearly all of the changes you sought in your April 25, 2005 letter to me.
In your letter, you sought more frequent testing “to create further deterrence.” Although neither of us doubts the deterrent effect of the current program, we have essentially agreed to your proposal. We have agreed to increase the number of suspicionless tests from 1,440 to 3,000. Every player will be tested at the start of spring training, creating an additional deterrent to off-season steroid use. Every player will be subject to at least one additional random test during the season. And every player will remain subject to additional random testing – we accepted your proposal of 600 such additional tests – throughout the calendar year. All players would be tested at least twice, and every player will know he is always subject to yet another test, no matter how many times he has already been tested.
You acknowledged that “our current program operates with integrity,” but nevertheless suggested that “administrative responsibility for the program” should be moved from HPAC to a jointly-selected independent expert. Notwithstanding what we believe to be uninformed criticism of our efforts to date, we have agreed with you to move much of the administration of the program, essentially accepting your last proposal.
You urged that we “revisit” the governmental investigations provision to ensure that “it is drawn as narrowly as possible to address [the Union’s] legitimate concerns.” We have done so, making plain in word what we already have demonstrated in deed -- that a Congressional request for summary information about our testing results does not jeopardize our program.
You stated that our agreement must cover amphetamines. You proposed a structure for accomplishing that, and we have accepted that structure. Under it, players would be subject to random testing for amphetamines. As with steroid testing, each player will be tested at least twice in-season, and is subject to additional random tests. We have proposed a disciplinary schedule for amphetamines that, like your last proposal, mandates additional testing for first-offenders and serious suspensions for repeat offenders.
With respect to penalties for steroid use, you said, “Discipline levels should be increased within the framework of a ‘three strikes and you are out’ approach.” Our proposal permits you to impose on third offenders such discipline as you believe appropriate, including a permanent ban, provided that it is consistent with just cause, and subject to arbitral review. Thus, we have agreed that in circumstances in which the facts would justify a permanent ban, you may impose one. But we also believe that fundamental fairness requires that the particular facts and circumstances of the individual case must be considered, especially when the potential penalty is permanent ineligibility. With respect to a 2nd positive steroid test, you proposed that the penalty be moved from 30 days to 100 games. We have proposed a presumptive 75-game penalty – nearly 1/2 of a Major League season – with the possibility that 100 games may be imposed in appropriate circumstances, provided that an arbitrator can reduce the penalty (but not below 50 games) where the player demonstrates that it would be fair and just to do so. This demonstrates the players’ commitment to severe penalties for Players who repeatedly violate the steroid policy.
Our principal remaining disagreement is the penalty to be imposed for an initial positive test for steroids. You have publicly proposed a 50-game penalty, a position from which you have not wavered. Indeed, your current proposal provides for a presumptive 50-game penalty, but in appropriate circumstances permits you to impose 60 games and the player to argue before the Arbitration Panel for 40 games. We have proposed a presumptive penalty of 20 games, twice the current penalty, with the possibility that you may impose a suspension of up to 30 games if the facts and circumstances warrant, and the player may argue to an arbitrator that the facts justify a lower penalty, but not below 10 games.
A 50-game penalty for a first-time steroid positive is not necessary to deter steroid use; indeed, you have never defended your proposal on the basis that it is. As you have acknowledged, both in 2004 (when our agreement provided for follow-up testing only for such violations) and in 2005 (when it mandated a 10-day suspension) our program has worked. And the facts support that judgment: the program has reduced steroid use to only 12 confirmed positives last year, and only 9 so far this year (including the one player whose positive test was the result of prior use for which he had already been disciplined). Nor do we believe that a 50-game penalty is fair, and you have never defended your proposal on the basis that it is. Prior to the March 17, 2005 congressional hearing, the Commissioner’s Office imposed only a 15-game penalty for first-time positives in the minor leagues, though you could have chosen any penalty you deemed fair and appropriate, without the constraints of collective bargaining. Before this year, you never even proposed a first-time penalty exceeding 15 games.
Rather, it appears the 50 game initial penalty is principally a response to criticisms which have been made of our current program. We share your concern about the criticism our program has received, and, in response, the players have demonstrated, several times now, their willingness to take all reasonable measures in response. But we are still required to adopt, and defend, reasonable, fair and appropriate agreements.
As you know, the players have proposed a presumptive 20-game suspension for an initial positive steroid test, twice that in the admittedly effective current agreement. Moreover, if the Commissioner’s Office can prove aggravating factors, a 30-game suspension –- three times that in the admittedly effective current agreement –- is permitted. If a player can demonstrate mitigating factors such that the presumptive penalty is not appropriate, an Arbitrator may reduce the penalty (but not below 10 games). We made this proposal in the interests of compromise, and believe that it should form the basis of an agreement.
Having said that, the Association remains willing to continue our negotiations in an effort to bridge our remaining differences so that a new program will be in place for 2006. I ask you to work with us to address our remaining concerns, as we have worked with you to address the issues you identified. We should do all we can to have a new program in place for next year, one that is not only a strong deterrent, but at the same time is fair, as the players deserve.
Donald M. Fehr