July 5, 2020

Volume X, Number 187

July 03, 2020

Subscribe to Latest Legal News and Analysis

July 02, 2020

Subscribe to Latest Legal News and Analysis

NFL and NFLPA Finalize Amended Substance Abuse Policies

After years of intensely contentious negotiations, the NFL and NFL Players Association have reached an agreement on the league’s performance enhancing substance policy and substance abuse policy.

Both policies were unanimously approved by the 32 NFL player representatives weeks ago, but were held up by final negotiations. The NFL and the NFLPA have been attempting to address these policies since the two sides approved the latest collective bargaining agreement in 2011. At that time, they had agreed in principle on a new drug testing policy, but disputed issues, such as human growth hormone (HGH) testing and the timing and manner of player testing, held up the process for more than three years. Since 2011, the NFL has continued to utilize the policies approved in 2006 and amended in 2010.

The most significant modification is that players, as expected, are subject to blood tests for HGH for the first time in NFL history. According to the NFL and the NFLPA, testing will begin “within the next few weeks” and will be “fully implemented” this season. In early 2013, Major League Baseball’s drug testing program was modified to subject players to unannounced in-season blood tests for HGH. Accordingly, it may be instructive to consider how Major League Baseball has implemented its program.

In addition, the new policies will apply retroactively to players who are currently suspended for violating the previous policies. As a result of the new policies and reduced penalties for certain violations, a number of suspended players already have been reinstated or have had their current suspensions reduced.

As for the applicable penalties for violations of the performance enhancing drug policy, the following suspensions will apply:

FIRST VIOLATION

SUSPENSION WITHOUT PAY FOR UP TO SIX GAMES

Use of diuretic or masking agent

Two game suspension without pay

Use of steroids, stimulants, HGH or other banned substance

Four game suspension without pay

Attempting to manipulate a test result

Six game suspension without pay

SECOND VIOLATION

TEN GAME SUSPENSION-Without Pay

THIRD VIOLATION

MINIMUM  TWO YEAR SUSPENSION-Without Pay

Stimulant Use in Off-Season

NO SUSPENSION-Referral to Substance Abuse Program

Stimulant Use in Season

Four Game Suspension-Without Pay

The substance abuse policy will modify applicable suspensions and more than double the threshold for testing positive for marijuana. The higher threshold may have been intended to forestall players from arguing that the positive test was the result of second-hand smoke. Moreover, players will avoid suspension for marijuana use until after a fourth failed drug test under the new threshold. The policy also includes enhanced discipline for DUI arrests. The new substance policy will provide the following penalties:

First Violation

Referred to Substance Abuse Program

Second Violation

Two-week salary fine

Third Violation

Four-week salary fine

Fourth Violation

Four-game suspension

Fifth Violation

Ten-game suspension

Sixth Violation

One-year suspension

DUI (First Violation)

Two-game suspension

DUI (Second Violation)

Minimum eight-game suspension

Importantly, the NFL will not have unilateral control over the appeals process for positive tests under either policy. Rather, appeals for positive test violations will be heard by an independent arbitrator. The NFL and NFLPA jointly will select and retain up to five arbitrators. In light of current debate regarding the Commissioner’s power and the NFL’s investigative procedures, this is a noteworthy step that may lead the players union to seek an independent appeals process in other circumstances.

However, the Commissioner will retain his disciplinary authority for violations unrelated to positive tests, including violations of law. Such violations still will be heard by the existing CBA Appeals Panel and the right of appeal will be “based on due process issues or a claim of disparate punishment.”

It will be important for players, agents and organizations to educate themselves as to how the policies will be implemented and enforced. Teams should ensure that players are informed of the applicable penalties and their rights under the modified procedures.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 268

TRENDING LEGAL ANALYSIS


About this Author

Benjamin A. Tulis, Employment, Benefits, Litigation Attorney, Jackson Lewis Law Firm
Associate

Benjamin Tulis is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. His practice focuses on employment litigation, benefits litigation, transactions, and advice and counsel within the labor and employment law sector.

Mr. Tulis represents employers and individual defendants in a wide range of employment and labor matters, including wrongful termination, matters arising under ERISA, administrative matters, wage and hour class actions, and matters involving competition and restrictive covenants.

213-689-0404
Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
Office Managing Principal

Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. 

(602) 714-7044