Sports Law Blog
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Friday, July 14, 2006
Open Letter to Bud Selig
Dear Mr. Selig:
I understand that you are disappointed and angered by Jason Grimsley’s recent admission that he used the human growth hormone (HGH) and by his statements that other major leaguers use the banned substance. Last month in your “open letter to fans” you said that you will not tolerate the use of HGH and other performance-enhancing drugs in baseball.
It is time to get aggressive with the union, more so than you have ever been before. On the eve of negotiations over a new collective bargaining agreement, and with the fans 100% on your side in "the war on steroids," the timing could not be better. Major League Baseball should not waste its time and money on research to determine how to detect HGH, because while it is doing that, somebody else will be developing the next masking agent or magic "whizzer" apparatus to prevent MLB’s new testing methodology from detecting the HGH. By the time your new test is ultimately developed, players will be experimenting with gene therapy and the replacement of human tendons with animal tendons.
So how do you fix the problem? Suspensions and fines for positive drug tests are not the answer because (with a few limited exceptions) players are not testing positive! In your open letter, you alluded to the powerful investigative efforts of the FBI and that players are no different from anyone else in our society. Maybe you could consider how the FBI catches people who lie and cheat -- they use lie detector tests. For example, the FBI is now administering polygraph tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks. As one particular FBI director noted, "There is no more powerful tool in our tool bag than lie-detector tests."
Now, I know what you are thinking: Drug testing and discipline is clearly a "mandatory" subject as defined in the National Labor Relations Act (i.e. “wages, hours and conditions of employment”) that requires you to negotiate with the union because it pertains to conditions of employment. So how do you get the union to agree to polygraph testing with respect to performance-enhancing substances (including gene therapies, surgeries, etc.)?
Here’s how. We all know the first question that union head Don Fehr is going to ask you at the bargaining table in a few months: “What’s your proposal on revenue sharing?” You should take the position that revenue sharing is an issue that only concerns the teams and is not a mandatory subject that you are required to negotiate with the union because it does not relate to players’ wages. Mr. Fehr will respond that revenue sharing impacts wages because if large market teams must pay a certain percentage of their revenue to small market teams, it constitutes an expense that impacts a team’s bottom line and the amount it is able or willing to spend on payroll. Of course, so does a team’s stadium lease expense and the amount it charges customers for tickets, hotdogs and beer, but those are not mandatory subjects. For example, if General Motors enters a joint venture with a competitor agreeing to share a percentage of revenue, it obviously impacts GM’s bottom line and indirectly impacts how much it pays its workforce, but it is not a mandatory subject that needs to be negotiated with the union. Simply tell Mr. Fehr that you will negotiate revenue sharing if the players agree to periodically take lie detector tests regarding their use of performance-enhancing substances, surgeries, therapies and the like.
Now when he jumps up and down and screams at you such phrases like “decertification,” “strike” and “unfair labor charge,” stick to your guns. Because even if you have to spend legal fees to validate your position in front of the NLRB or in a court of law, the legal fees will be much cheaper than funding research to detect HGH and, more importantly, much more effective in catching cheaters!