Contractual Difficulties – Why isn’t there blood testing in the NBA or NFL?

November 23, 2013


By Charlie Livermore – Thompson Rivers University 2L JD Student

Earlier this year, just a day after it was announced that no new players would be selected for the Baseball Hall of Fame, Major League Baseball (MLB) announced that they were going to begin using in-season blood testing to detect human growth hormone. The Commissioner of the National Basketball Association (NBA) stated he “expected” blood testing to be phased into professional basketball this season. National Football League (NFL) commissioner Roger Goodell soon after announced he likewise thought blood testing would take place this season.

It appears neither the NBA or the NFL will test anyone for HGH this year.

Despite the optimism of the Commissioners, recent reports suggest a deal between the respective players unions and their league counterparts is still far away. The NFL is inching closer, with agreements in principle reached, but talks have stalled over the internal appeals process. The NBA Players Association seems ready to postpone the fight over blood testing for seasons to come, with a deal nowhere near ready.

Two facts help to put this dispute into context. Human Growth Hormone is undetectable in urine tests and players in both sports are recovering from injuries faster than they ever have.

I asked Travis Tygart, the CEO of the US Anti-Doping Agency, why the NFL doesn’t have blood testing yet. He said that the players union, in their ongoing labour negotiations, sees blood testing as a detriment which they are willing to accept, but would need something in exchange. Blood testing is a bargaining chip, just like off-season practices, concussion protocols, or any of the other (relatively) small things a billion-dollar employer negotiates with its labour force.

I’m sure this is all true. But it seems there might be more to the story. As with steroids or other performance enhancers, part of the issue surrounding enforcing the ban on HGH is its perception by players. But in some ways HGH doubles down on the conceptual justifications made by players and sports commenters towards Performance Enhancing Drugs.

HGH is a naturally according hormone, key in stimulating muscle growth. It is prescribed for a variety of medical issues. In a sporting context, HGH is thought to increase speed of recovery from injuries, even though this claim isn’t totally confirmed by science.

For some, HGH isn’t really cheating. Numerous commentators have wondered why we don’t let athletes use HGH to recover from injuries. When a running back tears their ACL on a cut, or a linebacker rips their bicep attempting a tackle, they are looking to get back on the field as fast as they can. A substance which helps recovery could be perceived by athletes not as performance enhancing, but performance allowing – they can get back to what they do, faster.

Conceptually, using HGH for injury recovery might not be thought by athletes as making someone more than they are, but as returning them to who they were. Tommy John surgery, European genetic knee therapies, and other recovery techniques that seem “unnatural” are routinely employed by athletes looking to get back in the game, without violating any rules.

What do these possible justifications have to do with a contractual dispute between the players union and the league? The reason players in the NBA and the NFL are pushing back so aggressively against blood testing may simultaneously be more simple, and more complicated, than we thought.

Put simply, more players are probably taking HGH than most people realize, and testing would expose its widespread use as a recovery aid.

But there is likely a more complex aspect. Players, and their representatives, may not perceive testing for Human Growth Hormone as a valid or worthwhile endeavor. Many probably see HGH as tool used to compete in an increasingly difficult field, a field where injuries end careers, and everyone is just trying to keep up. Is an unjust law a law at all? St. Augustine didn’t think so, and the NFLPA probably thinks likewise, even if not explicitly.

The job of players unions is to make sure employed athletes aren’t contractually obligated to do anything more than they have to, and the forced removal of a vial of blood from a few hundred oversized men every other Sunday is probably an obligation worth protecting against.

But in two leagues where no one can agree on what cheating actually is, where entire cities depend on the knees of their quarterbacks, and where the public pressure to recover form injuries is obsessive, it seems like something else might be going on here. As far as management and labour disagreements go, this one might be more complicated.

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