Commentary

No drug testing during NFL lockout

Testing experts worry about lack of accountability; some players fear the unknown

Updated: May 18, 2011, 2:52 PM ET
By Shaun Assael | ESPN.com

In a little-noticed side effect of the NFL lockout, the league's drug testing program has been shut down, causing some experts to worry that players may be enjoying a drug holiday and veterans to complain they've been left in the dark about which supplements might unknowingly cause them to test positive when the lockout ends.

Widespread confusion also exists about how the NFL will discipline players who fail drug tests when the lockout ends.

Since the lockout began March 12, the league has not conducted a single off-season drug test. That is significant because roughly 4,000 of the 14,000 tests that the NFL conducted last year were done before the start of the season -- a 29 percent rate that's far higher than any other sport. Major League Baseball tested less than 5 percent of its players last winter, and the NBA and NHL do not have year-round testing programs.

NFL spokesman Greg Aiello acknowledged this week that players are no longer being asked to supply information about their whereabouts and are no longer required to give samples under the policy's 24-hour-notice provision. Aiello declined to divulge how many offseason tests had been canceled in the past nine weeks, saying: "We don't want to be that specific to avoid providing to many clues to someone that might want to try to beat the system."

Asked whether the league's players might view the lockout as a kind of performance-enhancing drug holiday, he said: "We hope that is not the case."

Travis Tygart, the chief executive officer of the U.S. Anti-Doping Agency, says that the specific number of canceled tests matters less than the fact that the league has lost an essential deterrent. Labeling the current lack of oversight "a mess," he said: "The way things are now, I think it's a really big decision for a player not to take banned drugs, because the temptation to do it is so great without a risk of being caught."

Representatives of the disbanded players' union, however, dispute that idea.

Shaun O'Hara, a center for the New York Giants, said he has advised teammates to act like the lockout could end tomorrow.

O'Hara Either way, I think you'd be crazy to think the [drug testing] rules are anything but normal. You're playing with your career.

-- New York Giants center Shaun O'Hara

"It might last two more months, or we could be back at work next week," he said. "Either way, I think you'd be crazy to think the [drug testing] rules are anything but normal. You're playing with your career."

Eric Winston, a right tackle for the Houston Texans, said his colleagues are more concerned about taking tainted supplements now that the league has stopped issuing product warnings, which are issed about four to six times a year.

"I think the lack of information [about supplements] is an exponentially greater problem than guys taking banned drugs," said Winston. "There's no guidance coming from the league."

A spokesman for DeMaurice Smith, the head of the NFL Players Association, did not return messages left at his Washington, D.C., office.

Aiello said that the NFL hot line for players to call about supplements remains available, and that the league's consistent message to players is that all supplements are risky. Players also can seek guidance from the NFLPA, he said.

While few are willing to predict an explosion in positive drug tests once the lockout ends and testing resumes, legal experts said that those who flunk tests could be in a strong position to mount challenges.

Aiello We will review any violations of law that have taken place and resume our testing programs in some form that has not yet been determined.

-- NFL spokesman Greg Aiello

The league's 2010 steroid policy warned players that they were "responsible for what is in their bodies, and a positive result will not be excused because a player was unaware that he was taking a Prohibited Substance."

But Howard Jacobs, a defense attorney with a specialty in doping cases, wonders how the NFL will be able to charge players with taking a substance that wasn't prohibited during the lockout because the policy wasn't in effect.

"You can't just retroactively apply a drug policy," he said.

John P. Collins, a former federal prosecutor who teaches sports law at the University of Chicago Law School, thinks that any new policy will have to include some kind of amnesty period.

"Maybe you'll see something like a month-long buffer period before the first test is given," he said. "That would let any drugs taken during the lockout pass through a player's system."

As a result of a recent federal appellate court decision in Minnesota that gave states the right to enforce local laws that are more restrictive than a league's collectively bargained drug policy, the NFL's players and owners have shown a desire to work together on their drug-related issues. The NFL issued a proposal on March 11 that accepted union demands for third-party arbitrators in drug case appeals. And some players have signaled that they don't have a problem with Commissioner Roger Goodell's call for a blood testing for human growth hormone.

But neither side is willing to predict what the next CBA will say about cleaning up the mess caused by the current testing hiatus.

As Aiello put it: "We will review any violations of law that have taken place and resume our testing programs in some form that has not yet been determined."

Shaun Assael is a senior writer for ESPN The Magazine.

• Senior writer for ESPN The Magazine
• Author of "Wide Open: Days and Nights on the NASCAR Tour"; the New York Times best-selling "Sex, Lies and Headlocks"; and "Steroid Nation"