Category Archives: Drug Testing

How The SEC Can Stop The Problem Of Recreational Drug Use In College Football

Drug testing of student-athletes may be taking a new turn.  Earlier this spring, SEC school chancellors and presidents discussed a number of topics during the conference’s annual spring meetings.  One idea that was reportedly been floated, is a conference-wide substance abuse policy.  Currently, no conference has a conference-wide substance abuse policy in place to address recreational drug use by student-athletes.

Previously, it was thought that SEC presidents and chancellors could vote on the issue as early as May 31.  However, a vote did not come to fruition by the end of the conference’s spring meetings.  However, programs and coaches, including Georgia’s Mark Richt, have continued to voice support for a conference-wide drug policy.  The voicing support for a conference-wide drug policy comes as reports continue to circulate regarding the wide discrepancies as to how drug use is punished amongst SEC programs.

Recently, University of Georgia athletics director, Greg McGarity, noted, “At the SEC meeting in Destin, we proposed consistent penalties across the board, but our proposal gained no traction.  Therefore, the issue is moot unless it is brought up in the future.”

The question, then, is this an issue that the SEC as a conference should bring up in the near future?

Adoption of an SEC-wide recreational drug testing policy would be notable and likely well-received by college football fans and the general public alike.  As for college football fans and how they would receive such a policy, it is important to note that reports indicate that the sanctions imposed by SEC schools for recreational drug use by their student-athletes vary widely.  As such, adoption of a conference-wide substance abuse policy may remove some competitive advantages that certain SEC programs have.  An ESPN reportfound that four SEC schools—Alabama, Arkansas, Florida and LSU—release student-athletes upon testing positive for drugs four times.  The rest of the SEC schools reportedly release student-athletes upon their third positive test.  The question, then, is what competitive advantage is gained by the schools who grant players an extra positive drug test?  Additionally, reports indicate that SEC schools differ largely in how many games a player is suspended for upon testing positive for recreational drugs a first time.  Some schools reportedly do not issue a suspension upon the first positive test, whereas others suspend players for ten-percent of a season.

It is notable, that at this time, it does not appear that a policy would consider performance enhancing drugs.  This is because the NCAA’s bylaws govern that issue.  Therefore, it is arguable that it would not impact a program’s competitive advantage.  However, an argument can be made that if one team’s star players are using recreational drugs and being punished less harshly than another team’s star players who are using recreational drugs, that a competitive advantage is gained.  It is this argument that SEC programs favoring the proposal may point to.

Notably, the winner of the last two SEC football championship games has been a school that reportedly allows its student-athletes to test positive for drugs four times prior to being released:  LSU and Alabama.  Additionally, in the last decade, the four schools allowing a higher number of positive drug tests before release have won the BCS National Championship Game seven times.  It is important to note, though, that it is unclear when the respective drug policy was adopted by those four schools.

In recent years, several SEC players have been suspended for recreational drug use.  The most notable, perhaps, was 2011 Heisman Trophy Finalist, Tyrann Mathieu, who was suspended for the 2012 LSU football season as a result of positive drug tests.  Yet, recent investigations into the recreational drug policies of SEC athletic departments revealed inconsistent sanctioningmeasures being executed across the conference.  Those inconsistencies not only exist in the SEC, but across college football, with conference’s members widely diverging in how they impose sanctions against student-athletes testing positive for recreational drugs.

Given this divergence, it is likely that the landscape of college athletics with respect to recreational drug use by student-athletes may soon shift.  In many regards, the SEC is seen as a leader in college sports, not only for its ability to win championships, but its ability to operate as a conference.  In this instance, its leaders have a chance to continue to be a leader by enacting a conference-wide drug testing and sanctioning policy which reasonably addresses the widespread issue of recreational drug use on college campuses.  Such a policy would not only quash SEC-wide criticism of various program’s policies, but would address the growing issue of recreational drug use by student-athletes.  One thing is certain:  If the SEC adopts such a policy, other conferences will follow suit.

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Filed under Drug Testing, NCAA

The DEA’s Investigation of the San Diego Padres and Chargers

By: Andrew Riley, Ruling Sports Intern, Twitter: @buriedtalents

Recently, the Federal Drug Enforcement Administration (DEA) ended their two-year investigation into the medical staffs of the San Diego Chargers and San Diego Padres. The investigation focused on the integrity and reporting requirements of the supply chain for the prescription drug program. As a result of this investigation the pharmaceutical supplier for both teams, RSF Pharmaceuticals, has surrendered its federal registration needed to continue operation. Moreover, the DEA stated that the teams are now in compliance with regulations. There is no indication, as of today, that there will be charges or sanctions against either team under the Controlled Substance Act (CSA). A general overview of the relationship between the pharmacies and the teams will be described, followed by analysis of the applicable law, and the potential implications of this investigation.

The DEA investigation focused on five entities involved in the supply chain of prescription drugs in the San Diego area. The entities were RSF Pharmaceuticals, RSF Manufacturing, Sportpharm Pharmaceuticals Inc., the San Diego Chargers and Padres. Allegedly, RSF Pharmaceuticals would buy the drugs from a wholesaler; the drugs would be transferred to RSF Manufacturing where it was stamped with the Sportpharm label; Sportpharm would then ship the drugs to the purchaser, in this case the Chargers and Padres medical staff.

Reports suggested that the investigation was initiated when former San Diego Chargers safety, Kevin Ellison, was found to be in possession of 100 pills of painkillers during a traffic stop in May of 2010. However, the complaint against RSF Pharmaceuticals states that the investigation actually began a month earlier when a phone call was allegedly received describing the alleged activities. The investigation concluded that the painkillers Ellison had in his possession were not from the San Diego Chargers.

The DEA began its investigation was because RSF Pharmaceutical was a registered company with the DEA, however it had not recorded any sales or movement of drugs under its current registration number. Moreover, neither RSF Manufacturing, nor Sportpharm were registered with the DEA or the Pharmacy Board of California. The CSA requires that every manufacturer, wholesaler, or dispenser needs to be registered with the DEA. Also, every time dangerous drugs are transferred to a manufacturer, wholesaler, or dispenser, it must be registered with the DEA and all information associated with the exchange needs to be recorded and filed where it can be easily audited.

Another issue reportedly spurring the investigation was that the doctor for the Chargers, Dr. Chao, allegedly accepted a large number of prescriptions dispensed by RSF Pharmaceuticals, wherein he was allegedly listed as the user. Such a practice is not allowed under state law. 

The purpose of the CSA’s registration and reporting requirements is to ensure that dangerous drugs do not reach the illicit market. To explain further, the purpose for maintaining a closed supply chain is guard against diversion. At the core of all the regulations, including the registration and reporting requirements, is to lessen the chance of abuse of dangerous drugs. There is less of a chance of abuse if the drugs are kept in the closed supply chain and used for a “medical purpose”. The DEA uses a broad definition of “medical purpose.” The effect of using a broad definition makes recreational or illicit use to be classified as a non-medical purpose but allows for discretion in instances when there are reporting indiscretions but the drugs are still likely being dispensed to those within the supply chain. For example, a shipment that is diverted from the closed supply chain will likely be dispensed on the black market from a dealer for illicit purposes. Whereas, where there are reporting irregularities a doctor is still dispensing prescription drugs for those who, presumably, require it for their health. This explains why the DEA is willing to work with the teams to ensure compliance in the future as oppose to seeking punishment.

What is the significance of this investigation to the sports world? For teams, it could be as simple as enforcing the importance of maintaining proper records so that there is no significant loss of revenue to lawsuits or fines, as well as to avoid potential issues that could interfere with daily operations of the organization. For example, if the organization is no longer able to dispense medication to its players, then players’ ability to play and their health could be hampered. At the other end of the spectrum, the reporting shortages of prescription drugs, for the NFL in particular, may affect the current concussion lawsuits against the NFL. Without delving too much in to the intricacies of that litigation, at its core, the suit alleges that the NFL was negligent when it hid brain injuries from the players.  Hiding the brain injuries caused further problems later in life for the players. What if there was another possible cause to either the brain injuries and the problems later in life, such as prolonged use of painkillers for example. Potentially, it could mean that the players (plaintiffs) could not establish a proximate cause to their injuries, which would be fatal to their case. If the issue of the case against the NFL involved broken legs instead of brain injuries then it would be much easier to determine proximate cause since broken legs are obviously impact injuries. Brain injuries, however, are not clear. The number of ex-athletes who have donated their brain for research, and how much money the NFL has donated to the cause demonstrates this concept. Alternatively, painkillers have be researched and tested significantly and warn against many of the symptoms complained of by players after extended use.

The investigation by the DEA against the Chargers and Padres for non-compliance of reporting requirements for prescription drugs can impact the above theory because if the supply chain ends at the team doctor then it will be difficult to track which players may have received a significant amount of painkillers. If it were impossible to track those who may have used certain drugs for a significant length of time then it would be difficult to conclude that the extended use of painkillers was a possible cause of the brain injury.

Ultimately, the significance of this investigation may simply rest in the importance of being diligent in the reporting standards and not have any impact whatsoever on external litigation. If so, taking the proper steps to ensure that no dangerous drugs enter the illicit market is an adequate reason to promote compliance.

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Filed under Drug Testing, MLB, NFL

Allowing Lance Armstrong to Compete: What Races Gain and Lose

By:  Kaitlyn Kacsuta, Ruling Sports Intern (Twitter:  @KRKacsuta)

As most people are well aware by now, Lance Armstrong received a lifetime ban from cycling and other sporting events governed by the World Anti-Doping Code.  On October 10, 2012, the United States Anti-Doping Agency (USADA) released a report that outlined the evidence against Armstrong and the “reasoned decision” to impose the ban.

Despite the sanctions, Armstrong continues to participate and compete in races, runs and triathlons.  Most recently, he competed in Maryland in the Half Full Triathlon, and won the event.  The event organizers chose to forfeit their certification with the sport’s governing body, USA Triathlon, in order to allow Armstrong to race.  USA Triathlon adheres to the World Anti-Doping Code and is subject to the USADA.  The ban imposed on Armstrong prohibits him from participating in USA Triathlon sanctioned events.

It is important to note that the Half Full Triathlon is a race series that raises money for the Ulman Cancer Fund, an organization created by Livestrong’s CEO, Doug Ulman.  The charitable nature of the event and Armstrong’s work in the fight against cancer, make the race director’s decision to drop certification far more reasonable – and possibly unique to this type of racing event.

By contrast, the Chicago Marathon prevented Armstrong from participating, though he was registered to race with his charity, because USA Track and Field (USATF) and the World Anti-Doping Code govern the event.  A USATF spokesman said that, “[t]he code is very clear regarding the ineligibility of sanctioned athletes,” and that, “Mr. Armstrong’s ban extends to track and field, road running, and all [USATF] disciplines.”

Similarly the Ironman World Championships, held annually in Kona prevented Armstrong from entering its race even before the USADA sanctions were imposed.  Ironman, who had partnered with Armstrong in February 2012 after he announced his plans to attempt to qualify for and compete in the Ironman World Championships, banned Armstrong from competing in its events when the formal charges were announced by USADA.

Armstrong has received mixed receptions since USADA sanctions were announced.  It is unclear if events and organizers that were once willing to drop certification will continue to make exceptions for Armstrong in the wake of USADA’s release of its “reasoned decision.”  There will continue to be those who push Armstrong away from events, in part because of the race benefits from maintaining certification with governing bodies – such as lower cost insurance for the event and professional competitors vying for higher placement in international rankings who are attracted to competing in certified races. 

However, there will also be those who welcome Armstrong with open arms because he brings press coverage, increased participation and ultimately more money to every event he attends.  The Half Full Triathlon had hundreds of additional athletes sign up after it was announced that Armstrong would race.  No matter the ultimate fallout from the USADA report, Armstrong will always be the moneymaking machine that led so many to ride along in his slipstream with U.S. Postal Service.

A possible solution may be for Armstrong to begin a career in the niche, yet growing sport of ultramarathon running.  Many of the most storied ultra events in the United States are not USATF certified events, though the International Skyrunning Federation (largely a European mountain running organization) is subject to the World Anti-Doping Code.  Theoretically, if Armstrong were able to qualify for an event like the Western States 100, considered the most prestigious ultra in the U.S., he would be able to run like any other competitor.  Armstrong has recently begun to hit the trails for mountain running events, so perhaps the increases in prize money and notoriety for ultra-distance running will entice him to toe the line in the future.

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Filed under Bicycling, Drug Testing, Endurance Sports

Total Loss: Will Lance Armstrong Be Stripped of His Olympic Bronze Medal?

By:  Richard Braun, Ruling Sports Intern (Twitter:  @RicBraun)

Despite being stripped of his seven Tour de France titles, Lance Armstrong appears likely to keep the bronze medal he won at the 2000 Summer Olympics in Sydney, Australia.

At this time, the International Olympic Committee (IOC) is taking the stance that it is “unclear” if they have the authority to take the medal away from Armstrong. The case will turn on how the IOC chooses to interpret the eight year statute of limitations imposed by the World Anti-Doping Code (WADC). The participation eligibility section of the Olympic Charter states that “the World Anti-Doping Code is mandatory for the whole Olympic Movement.” Accordingly, the IOC follows all World Anti-Doping Code protocols.

However, the WADC did not include the statute of limitations until 2003, after Armstrong won his bronze medal. The IOC is currently wrestling with the idea that since Armstrong won his medal before 2003, the statute of limitations does not apply.

The IOC is welcome to interpret the WADC in whatever manner they please, but taking away Armstrong’s medal would defeat the very purpose of having a statute of limitations. In American jurisprudence, one of the main underlying policy arguments behind the statute is that at some point in time a person should not have to worry about being held liable for acts that occurred many years ago. For example, if a person in their 20s committed a hit-and-run but was never arrested or otherwise sued for it, he or she should not have to worry about being arrested when they are in their 40s. At some point in time, there is no longer any societal benefit to anything but an acquittal.  When the statute was enacted is not the relevant point – what is relevant is when Armstrong won his medal.

The IOC has yet to encounter a situation such as this. There is no precedent where they stripped an athlete of their medal when they otherwise would have been protected by the statute of limitations. The World Anti-Doping Agency, the authors of the WADC, has in fact dealt with this situation, however. Back in 2009, tennis great Andre Agassi admitted to using crystal meth in 1997, a substance that is banned by the WADC. However, since the 8 years statute of limitations had passed, the Agency was powerless to penalize Agassi and instead could only ask the ATP to look into the matter. At the time, the ATP had their own anti-doping agency, and could potentially punish Agassi. In the end, however, no action was taken against Agassi.

As of now, the IOC is not involved in the Armstrong case, and they are waiting on the United States Anti-Doping Agency to provide them with the materials they need to make a determination. However, what they don’t have are any positive drug tests or admissions of guilt by Armstrong. In addition, the statute of limitations imposed by the WADC, the code mandated by the Olympic Charter, seemingly puts the IOC in a corner. Any action by the IOC to strip Armstrong of his medal would likely be more for political reasons, than legal ones.

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Filed under Bicycling, Drug Testing, Olympics

AJ Allmendinger and NASCAR’s Drug Testing Policy

By:  John Fabiano, Ruling Sports Intern (Twitter:  @Fabs 5180)

July 24th is a big day for AJ Allmendinger.  The driver of Penske Racing’s #22 car recently tested positive for one of NASCAR’s banned substances and has been suspended indefinitely.   Two samples, A and B, are taken when NASCAR members are drug tested.  Allmendinger’s A sample tested positive for a banned substance but he will get a second chance when his B sample is tested this Tuesday.

NASCAR changed the structure of its drug testing policy in 2009 when it started randomly testing drivers and just about every team member than plays a role on race days, including team officials, crew chiefs, tire changers, and jack men.  The members tested are randomly selected by a computer system, where in the past the tests were only administered due to reasonable suspicion.  There are over 100 substances that violate NASCAR’s substance abuse policy, and Allmendinger tested positive for at least one of them. 

The most mysterious aspect of the whole testing policy is that if NASCAR may, as it did in Allmendinger’s case, choose not to release which substance a violating member tests positive for.  There was a great debate concerning this standard of confidentiality when Jeremy Mayfield, the only other driver to be suspended since the inception of the random drug testing policy, tested positive for a banned substance.  It was not resolved until court documents revealed that he tested positive for methamphetamines.  Only the banned substance list, which includes illegal substances, prescription drugs, alcohol, and dietary supplements, is made available to the public.

After testing positive for an illegal substance, the next 72 hours are crucial.  In this time frame, one option the violator has is to present evidence to NASCAR officials that they were taking prescription drugs in accordance with their doctor’s orders.  Another option is to request that the B sample be tested, which is what Allmendinger did.  During the testing of the B sample, Allmendinger will exercise his option to have an independent toxicologist chosen by him watch the test.  If the B sample comes back negative, Allmendinger will be immediately reinstated.  A positive test will lead to an indefinite suspension and could require a treatment plan that includes substance abuse counseling, treatment, or rehabilitation.

A lot of NASCAR drivers have been outspoken about the drug test policy since Allmendinger’s positive test went public.  His Penske Racing teammate Brad Keselowski doesn’t agree with NASCAR’s decision to keep the substance Allmendinger tested positive for a secret.  He states that there is a big difference between a driver taking a stimulant, which may have come from a legal supplement, and an illegal, recreational or performance-enhancing drug.  He went on to say, “It’s my belief that nothing should be allowed, I don’t think you should take Flintstone pills.”  While Keselowski’s ideal restrictions may be over the top, most drivers do agree with a strict drug testing policy.  Matt Kenseth agreed that a stern drug test policy will keep drivers in check while participating in a sport where the potential for fatal accidents is always present.  Kenseth said, “When you’re racing at 200 mph, you want everybody to be right.”

Drivers do not want to put themselves in a situation where they are competing against drivers that are unnecessarily putting their careers in jeopardy.  Tuesday’s test could make or break AJ Allmendinger’s career and reputation.

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Filed under Drug Testing, NASCAR

Lance Armstrong’s Lawsuit Against The USADA Dismissed

On the day that seven-time Tour de France winner Lance Armstrong filed a lawsuit to prevent the USADA from punishing him, a judge in Armstrong’s hometown of Austin, TX dismissed the lawsuit and all other pleadings filed along with it, including a motion for a temporary restraining order.  Ultimately, the basis of the ruling by Judge Sam Sparks of the United States District Court for the District of Western District of Texas was that Armstrong’s filings did not comply with Rule 8 of the Federal Rules of Civil Procedure.  Rule 8 sets forth the “General Rules of Pleading” for filing cases in federal court.  Given that Armstrong’s lawsuit was filed in U.S. District Court, it was required to comply with the parameters set forth by Rule 8.

In Judge Sparks’ ruling, he makes direct mention of Armstrong’s failure to comply with Rule 8 (a).  In particular, Rule 8 (a) requires that a pleading contain “a short and plain statement of the grounds for the court’s jurisdiction. . ., a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought, which may include relief in the alternative or different types of relief.”

Armstrong’s dismissed complaint was neither short nor plain.  In fact, the complaint spans 80 pages.  This would not be an issue if the 80 pages was used to make a short and plain statement explaining the legal reasons why Armstrong is entitled to relief in this case.  Rather, the first 70 pages of the complaint are used to set forth things like Armstrong’s personal history (including swimming and triathlon awards he won as a child), as well as every fault Armstrong finds with the USADA.  Such arguments are not appropriate for a complaint, but rather are matters that should be presented to a jury once the case reaches the trial stage.

Armstrong’s 80-page complaint only contained ten pages of legal argument.  In those ten pages, Armstrong raised causes of action for Fifth Amendment procedural due process, common law due process, tortious interference with contract, and declaratory judgment.  Ultimately, Armstrong sought injunctive relief preventing Armstrong from having to accept the USADA’s punishments or the same being impsoed against him, declaratory judgments preventing the USADA from punishing Armstrong and monetary damages.

Ultimately, Judge Sparks dismissed Armstrong’s lawsuit without prejudice.  This means that Armstrong has the opportunity to re-file the motion within the 20 days following is dismissal.  One can bet that Armstrong will take this action.  In fact, re-filing should be expected to come before the weekend.  This is due to the fact that Armstrong has until Saturday to accept or reject the sanctions set forth against him by the USADA.  Thus, if his lawsuit and motion for a temporary restraining order are not re-filed by Friday, a judge will not have an opportunity to rule on the temporary restraining order.  If a temporary restraining order is not granted in this case, then Armstrong will have to follow the USADA’s procedures and accept or reject its sanctions.  Thus, it is of the utmost importance to Armstrong that his legal counsel re-files its claims by this Friday, at the latest.

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Filed under Bicycling, Civil Lawsuits, Drug Testing

What Ryan Braun’s Appeal Means to MLB’s Drug Testing Policy

From all accounts, Ryan Braun is a man of character.  Since reports surfaced in December that a urine sample obtained from Braun in October 2011 tested positive for elevated levels of testosterone, not a single member of the baseball community has challenged Braun’s character.  At the same time, Braun repeatedly claimed that he would be exonerated, and that he has never used performance enhancing drugs during his career.

The testaments to Braun’s character by his baseball colleagues surely boosted the player’s reputation during what could be described only as a public relations nightmare.  However, it is to be seen how the story of Braun’s positive test will affect his status in the history books.  Unfortunately for Braun, if MLB’s Joint Drug Prevention and Treatment Program were correctly applied to his situation, there would be no question as to how the story of his positive test would affect his status in MLB history.  That is because, if the policies outlined in the Joint Drug Prevention and Treatment Program were adhered to, none of us would have heard the story behind Braun’s positive test.

In the wake of a congressional investigation into the use of performance enhancing drugs by MLB players, and reports that many of the day’s biggest stars tested positive for performance enhancing drugs, MLB enacted the Joint Drug Prevention and Treatment Program.  In relevant part, the program lists which substances are banned by MLB, sets forth a testing procedure and outlines punitive measures for those testing positive for substances banned by MLB.

Arguably, however, the most relevant portion of the program’s policies for players is the section related to confidentiality.  The program’s policies state, “The confidentiality of the Players’ participation in the Program is essential to the Program’s success.”  The program then goes on to specify the confidentiality requirements of the program, which greatly limits the number of people who can be made aware of a player’s positive test.  Long story short, the program prohibits either side from alerting the media of a player’s positive test.  Such prohibition would seemingly prevent the media from disseminating information related to a player’s positive test.

By now, anyone who follows baseball is likely aware that the overturn of Braun’s 50-game suspension came as the result of his camp proving that the chain of command policy set forth within the program’s policies was not adhered to.  Some in the media have asserted that Braun was exonerated as the result of a technicality, since the specimen collector didn’t FedEx his urine sample on the same day it was collected, as required under the program, but rather, held onto it over the weekend. 

While players say that due process was upheld with this result and MLB is crying foul over the perceived technicality of the situation, what both parties should be distraught over, is the clear breach of the program’s confidentiality provision.

First and foremost, players should be greatly concerned that confidentiality was breached in Braun’s case, because of the possible negative effects the breach may have on Braun’s career.  In recent years, baseball fans have seen stars’ successes on the field be stigmatized in the wake of allegations of performance enhancing drug use.  Braun was arguably in the midst of his best season—a season in which he was named the National League’s MVP—when this all shook out.  Although his suspension has been waived, it is to be seen what lingering effects of the news that he tested positive for a banned substance remain.

MLB should be outraged that confidentiality was breached in Braun’s case, because as the policy states itself, “The confidentiality of the Players’ participation in the Program is essential to the Program’s success.”  In order for MLB to reassert itself as “America’s National Pastime,” it must continue to take a strong approach to combating drug use amongst its biggest names.  The publicity of Braun’s case arguably called into question the effectiveness of MLB’s drug testing policy.  The fact that the testing specimen of one of baseball’s biggest stars was mishandled may lead some to question whether other specimens have been similarly mishandled and potentially tainted.  In order for a program to be successful, such questions cannot exist.

Although the proper handling of testing specimens and chain of command issues are items MLB and the MLBPA must address in the wake of Braun’s appeal, the biggest issue both parties must concern themselves with is redrafting the policy so that punitive measures are put in place when a party breaches the confidentiality provision.  The program’s policy provides that, “Within 30 days of the conclusion of the World Series, the Parties will meet with the IPA, the Medical Testing Officer, and a representative from CDT regarding potential changes to the Program based on developments during the most recent year.”  Arguably, the breach of confidentiality in Braun’s case was a relevant development related to the program’s policy which occurred during the past year.  The program’s policy currently does not provide punitive measures for anyone who does not uphold the confidentiality provision.  Thus, to prevent the spectacle surrounding Braun’s situation, both sides would be well suited to begin drafting a punitive clause related to not upholding the confidentiality provision.

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Filed under Drug Testing, MLB, MLBPA