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.