[Tuesday, December 3rd, 2013]
In August of 2012 the New England Patriots negotiated a handsome five-year $40 million contract extension with the tight end Aaron Hernandez to play through the 2018 season. Fast-forward and both parties are unexpectedly in a dispute. The breakup began shortly after the June 2013 arrest of Hernandez for the murder of Odin Lloyd. The Patriots waived the tight end within a half hour of the arrest.
There is no dispute that the Patriots were entitled to use the NFL waiver system, described below, as a form of contractual relief from employing the indicted criminal. However, the Patriots announced they would void all future payments after examining their legal rights under the NFL collective bargaining agreement (CBA). The NFL Players Association (NFLPA) disagrees with the team’s decision to void such payments and filed grievances to make the Pats cough up the remaining amounts. The Patriots are denying payment on the basis that Hernandez forfeited future guarantees when he engaged in conduct detrimental to the best interest of the league. Hernandez will contend he is contractually entitled to the guaranteed money, and the contract lacked forfeiture language with respect to these amounts. Furthermore, if the Pats’ goal was to recover past payments or block future ones, they shouldn’t have waived Hernandez, but kept him under contract. Hernandez pled “not guilty” to six charges, including murder and gun possession charges and is being held without bail. He is due back in court on the unlucky Friday, the 13th of December.
The Patriots legally waived Hernandez from employment under CBA Article 29’s procedure on waivers of player contracts. The waiver is a labor-management practice that gives other clubs the opportunity to claim a waived player and his contract from the releasing team. A player can be waived for any reason and neither the player nor the new club suffer penalty or require compensation from the releasing team. However, if the player is unclaimed through the waiver system then he becomes a free agent. The releasing team is relieved from continuing employment and paying unguaranteed salaries to the free agent and may have to make the remaining (unpaid) guaranteed payments under the contract. According to the CBA, Hernandez’s contract was subject to waiver because he is shy of a four-year tenure within the league. It came to no surprise when Hernandez cleared the waiver system, going unclaimed by the other 31 NFL teams and becoming a free agent. The waiver gave the Patriots the right to refuse continuation of employment and the right to refuse payment of unguaranteed salaries. But, the Patriots remain on the hook for payment of guaranteed money, unless they can cite to specific clauses in the contract and/or the CBA that justifies doing otherwise.
Payment of guaranteed money is subject to the CBA, the NFL Standard Player Contract, and player-specific addendums. The standard player contract is a collectively-bargained contract that, other than yearly base salaries, contains structured and unalterable terms applicable to every player. In addition, each contract contains an addendum negotiated between the player’s agent and the team, which covers guaranteed money, bonuses, incentives, and forfeiture. Base salary is money the player earns for playing during the season and does not require actual participation in a game. A workout bonus is earned for participating in a negotiated percentage of off-season workouts. A signing bonus is earned for signing with the team. It is typically paid in one lump sum to the player, but for salary cap purposes, teams prorate the signing bonus over the life of the contract. If a player is cut, the remaining portion of the signing bonus accelerates to that year. Guaranteed portions of the base salary, workout bonus, and signing bonus are protected from skill, injury, and cap terminations under the standard player contract. In other words, if Hernandez’s skill level decreased, if he suffered serious injury, or if the Patriots simply needed salary cap space, they could waive him but would still have to remit all guaranteed payments.
With respect to waivers for any other reason, the CBA requires the parties to negotiate the “Voiding of Guarantees”–this contractual forfeiture language in the addendum dictates guarantee obligations. NFL contracts usually contain “failure to perform,” “failure to practice,” and “failure to report” clauses. The practical effect of these clauses protects teams from player suspensions or other legal woes, giving the team the right to void guaranteed payment under these circumstances. Ian Rapoport of the NFL Network reports that Hernandez’s contract lacks language that forfeits guaranteed base salary and signing bonuses in the event of the player’s default. The only forfeiture clause in Hernandez’s contract apparently covers just his workout bonuses. Arguably, this means Hernandez may be entitled to guaranteed payments even if he’s incarcerated.
Accordingly, the NFLPA dutifully filed grievances on behalf of Hernandez seeking payment of:
- $1.323 million in guaranteed 2013 salary;
- $1.137 million in guaranteed 2014 salary;
- $82,000 for guaranteed 2013 workout bonus;
- $500,000 for guaranteed 2014 workout bonus; and
- $3.25 million installment from his signing bonus.
The NFLPA believes the team wrongfully voided the portion of Hernandez’s 2013 salary that became guaranteed and due on March 17, 2013, months before police found Lloyd’s body near Hernandez’s home. The 2014 salary, although due after Hernandez’s arrest, is guaranteed without forfeiture language. Henandez earned the 2013 workout bonus when he successfully completed at least 90 percent of the offseason workouts from April to June, 2013. The 2014 workout bonus is guaranteed, and although subject to forfeiture per the contract, the Patriots waived him before he could breach the contract in the 2014 year. Lastly, Hernandez argues he earned the deferred signing bonus the second he signed the extension.
The Patriots nonetheless assert that the CBA gives them the right to void Hernandez’s guaranteed payments. A Pats executive told Ben Violin of the Boston Globe that the contract “was guaranteed for skill and injury. It wasn’t guaranteed for personal conduct that cast the club in a negative light. We know the CBA. We are well within our rights.” In other words, the Pats believe the guarantees disappear because they cut Hernandez under Paragraph 11 of the Standard Player Contract, which allows termination when the player “has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.”
Hernandez’s grievances raise several novel issues. First, when a player’s contract omits forfeiture language for guaranteed payments, does conduct-based termination nonetheless allow the team to void the guarantees, and if so, which ones? Section 9 of the CBA on “Forfeiture of Salary” expressly allows teams to void contracts and recoup bonus money in the case where a player commits a “forfeitable breach” due to incarceration. However, the Patriots waived Hernandez before his incarceration caused him to miss any football-related activities. Had Hernandez been under contract and unable to play because he was in jail, or suspended by the League, the Pats could have easily recouped the previously paid bonus money and voided any remaining payments. Although it is understandable that the Patriots wanted to distance themselves from Hernandez, their disregard of CBA procedure may well have financial consequences.
It’s also important to note that Section 9 is new to the 2011 CBA, in recognition of the prior CBA’s failure to adequately protect teams from paying incarcerated players. The Michael Vick and Plaxico Burress incidents paved the way for this development. The Hernandez situation may influence the League to seek further protection under the CBA when a player is waived for an arrest relating to personal conduct reasonably judged by Club to adversely affect or reflect on Club. The NFLPA should also seek clarification as to how the League’s “conduct detrimental” disciplinary standard interacts with CBA conduct provisions.
The Pats may also find grounds to forfeit and recoup bonus money in yet another provision in Hernandez’s contract. The contract contained a representation that Hernandez knew of no then-existing circumstances that would prevent his continuing availability throughout the contract. He is now being investigated for committing or participating in a double murder in July 2012, before he signed the contract. If Hernandez was involved in the July 2012 murder of Danny Abreu and Safiro Furtado, then he made a misrepresentation and breached the contract. The Patriots’ obligations with respect to the signing bonus may have to await a determination of Hernandez’s role, if any, in the double murder.
While some question the NFLPA’s advocacy on behalf of Hernandez, the NFLPA said in a statement to USA TODAY Sports, “On behalf of all players, it is our responsibility to protect the rights in the collective bargaining agreement. We are not tone-deaf to what the allegations are in this case, but for the benefit of all players, there are important precedents here we must protect.” The NFLPA must pursue these grievances for players regardless of the accusations, in order to promote player trust and confidence in the union. Meanwhile the NFLPA understands it faces a volume of criticisms for attempting to secure millions of dollars for an accused murderer. According to analyst Samer Ismail, the Hernandez drama may encourage the NFLPA to “lead teams to take harder stances in future contract negotiations with players regarding legal issues. For example, a ruling in Hernandez’s favor could easily lead to less guaranteed money for such players and more salary assigned to roster bonuses per game.”
And what about this murder rap? The details are long and complicated. Hernandez was indicted in August 2013 by a grand jury for the murder of Odin Lloyd. The prosecution’s biggest hurdle is the lack of a star witness and murder weapon. From the NFL’s perspective, it may be well-served by continued incarceration of Hernandez after all the negative media buzz involving the fallen star. Multiple murder charges, gun trafficking operations with other NFL players, and consistent drug use are just a few reasons Hernandez’s conduct may be detrimental to the best interest of football.
The NFL announced in a statement that if Hernandez “enters into a player contract prior to the resolution of the charges pending against him, the contract will not be approved or take effect until Commissioner Roger Goodell holds a hearing. The purpose of the hearing would be to determine whether Hernandez should be suspended or face other action prior to the charges being resolved.” Considering the severity of the charges piling up against Hernandez, any NFL suspension will likely be of the permanent variety. Even if Hernandez is found not guilty of all of charged offenses, and those on his legal backburner, the NFL response could be similar to the $250,000 fine imposed on Ray Lewis. Lewis also faced murder charges, and ultimately pled guilty to a misdemeanor for obstruction of justice. The NFL’s cited the negative stereotype of the admitted conduct as the basis for the fine.
Legal experts in the eye-opening Rolling Stone article on Aaron Hernandez assert, “In these cases, juries think that reasonable doubt means no doubt at all.” If Hernandez is acquitted, the Patriots may still try to deny him millions of dollars, but the NFL can’t deny an innocent man a jersey.
[Sunday, December 1st, 2013]
The “Washington Redskins” team name, which some consider a racial slur against Native Americans, has been one of the most controversial sports news stories of 2013. This inherently touchy subject has generated spirited responses from people of all political affiliations and belief systems. Senator Nancy Pelosi has said that it “probably would be a good idea if [the Redskins] change the name.” Sportscaster Bob Costas believes that the term “Redskins” is “an insult, a slur, no matter how benign the present-day intent.” Even President Obama found time to weigh in by suggesting that, were he in team owner Dan Snyder’s position, he would considering changing the name.
In response to this renewed wave of media and public support for a name change, Redskins team owner Dan Snyder (a man who has a reputation for drawing the ire of the public) defiantly said: “We’ll never change the name. It’s that simple. NEVER — you can use caps.” While this response no doubt left a bad taste in many people’s mouths, a critical question remains: Will he ever have to change the name?
The Washington football club first became the Redskins in 1933, when co-owner George Preston Marshall changed the name from the Braves to end fan confusion with the baseball team of the same name. The first real wave of controversy, however, didn’t surface until 1992. In that year, the Redskins faced off against (and defeated) the Buffalo Bills at Minnesota’s Metrodome Stadium in Super Bowl XXII. However, perhaps more notable was what occurred before the game. Because Minnesota is home to a pretty sizeable American Indian population, over 2,000 protestors demonstrated against the Redskins name outside of the stadium. Some of the protestors even set up a 20-foot tepee and informed other patrons that “Redskins” was the most derogatory team name in sports.
Chicago Tribune writer Clarence Page wrote later that year that the Redskins “are the only big time professional sports team whose name is an unequivocal racial slur. After all, how would we react if the team was named the Washington Negroes? Or the Washington Jews? … It is more than just a racial reference, it is a racial epithet.” But if the name is so clearly offensive, why has there been so little progress in removing it from the lexicon?
A legal remedy has eluded opponents of the name for several years. In 1992, activist Suzan Harjo (along with other prominent Native Americans) brought suit to attack the “Redskins” trademark on the grounds that it could not be registered because of its “offensive, disparaging and scandalous” nature. Harjo claimed that the trademark should have been cancelled pursuant to Section 2(a) of the Trademark Act, 15 U.S.C. 1052(a), which is an absolute bar to the registration of immoral or scandalous subject matter. The legal fight lasted seven years, and culminated in a victory for Harjo in the U.S. Patent and Trademark Office, or the PTO. PTO judges cancelled the trademark on the basis that “the subject marks may disparage Native Americans and may bring them into contempt or disrepute.”
The victory was short-lived, however, as the team owners appealed to the federal district court in D.C. That court overturned the PTO’s decision in Pro Football, Inc. v. Harjo, based on insufficient evidence of disparagement. After several rounds of appeals, the D.C. Circuit Court of Appeals ended the litigation with a ruling in favor of the team on the basis of laches, a defense to an equitable action that prevents “recovery by the plaintiff because of the plaintiff’s undue delay in seeking relief.” The court found that the plaintiffs had committed “undue delay” in bringing the suit it had been initiated decades after the registration of the original trademark.
Opponents of the name have brought a new case, however, called Blackhorse v. Pro Football, Inc. They are optimistic that the new case will survive the laches defense because the plaintiffs are younger; at the time of filing, the Blackhorse plaintiffs were between the ages of 18 to 24, which means that the youngest plaintiffs in the case delayed only a few months after they hit the age of majority. The Blackhorse plaintiffs track the claims brought in Harjo – seeking to de-register the trademark as inherently disparaging. But even if the Blackhorse plaintiffs were to emerge victorious, there is no guarantee that Washington will cease to use the name “Redskins.” While a win would strip Washington of several of the benefits associated with official federal TM registration (including the ability to prevent third parties from selling copy-cat merchandise and diverting millions of dollars in revenue), only an injunction wouldt have the legal effect of forcing Washington to change the name.
Other strategies have also proven ineffective thus far. Earlier this year, House Representative Eni F.H. Faleomavaega, a delegate from American Samoa, and 19 co-sponsors introduced a bill that would amend the Trademark Act of 1946 to void any trademark registrations that disparaged Native Americans. Members of Congress also sent a letter to the Federal Communications Commission (FCC) asking that the FCC prevent the broadcast media from using the term “redskin.” The most promising piece of legislation to come out of all of this, however, is likely the resolution passed by the D.C. City Council on November 5, stating that the name should be changed. Although the resolution has no real legal effect (the team does not play nor practice in D.C.), it proves that such legislation can garner enough political support to be passed.
It would seem, however, that real change has to come from Washington ownership or from the NFL Commissioner Roger Goodell. Since Dan Snyder remains deaf to the cries of opposition, his ears clogged by tradition and dollar bills, it will be up to the media to pressure the NFL and the other member clubs into exerting whatever authority they have to affect change. Much like the history of Native Americans in America, the conflict at present has settled into an uncomfortable limbo that surely makes even the most insensitive of us feel a twinge of uneasiness.
[Monday, November 25th, 2013]
BY COLIN RONAN, NYLS ’15
Cheerleading is an important part of American culture and the overall NFL entertainment product. NFL cheerleading has a colorful 50-year history dating back to the 1954 Baltimore Colts, the first NFL team to employ professional cheerleaders. With 32 total NFL teams, 26 have cheerleading squads. Cheerleaders entertain fans, motivate NFL players, support charitable causes, and add glitz and glamour to a sport that is otherwise known for its ruthless and brutish nature. Cheerleaders are featured prominently in NFL advertising and game-day television coverage, especially leading in and out of every commercial break. However, NFL teams across the country routinely underpay cheerleaders, despite seemingly recognizing their valuable contribution to the NFL’s entertainment product and fan relationships. Many NFL teams pay the members of their cheerleading squads poorly, while requiring incredible time commitments, and subjecting them to restrictive rules and regulations. Unlike NFL players, NFL cheerleaders do not have a collective bargaining unit to negotiate their compensation and working conditions as a unified group.
NFL cheerleaders have significant demands placed on their time for what is routinely referred to as a part-time job. For example the San Diego Chargers cheerleaders state outright that “being a Charger Girls member is a part-time job. You should at least hold a part-time job or attend college full-time.” These women endure rigorous tryouts with multiple rounds in which they are required to pay the team an audition fee for the privilege of subjecting themselves to scrutiny. For example, the Jets Flight Crew has its prospective cheerleaders brave four rounds of auditions. Across the NFL, cheer team members are required to attend multiple unpaid weekly practices, training and boot camps, private appearances, photo shoots, and charity events in addition to weekly NFL games. Texans cheerleaders have to attend three rehearsals per week, and agree to a time commitment the team estimates at nine hours a week of rehearsal during the off-season and 16 hours a week during the season. The Minnesota Vikings cheerleaders “average over 400 appearances a year at charity events, community events, Vikings Children’s Fund events, corporate events, media events, travel appearances, calendar sales promotions, etc.” Each Vikings cheerleader is required to participate in a minimum of two charity events per month. The Dallas Cowboy cheerleaders, perhaps one of the most famous cheerleading squads in the world, are required to attend two to five mandatory practices per week. On game days, the time commitment of an NFL cheerleader can range anywhere from seven to ten hours, not counting the time spent primping and prepping in advance of national television appearances, and hours spent in the gym sculpting their bodies to fit into unforgiving team uniforms. Baltimore Ravens cheerleaders are required to be on site five hours before kickoff.
Despite cheerleaders’ significant commitment and hard work in producing a product that grosses over $9 billion dollars annually, cheerleaders are paid on average about $75 a game, while at the same time, NFL players and coaches enjoy multi-million dollar contracts. The NFL minimum player salary for a rookie in 2013 is $405,000.00, and the salary for a returning 2013 Patriots cheerleader is the state minimum wage, $8.00 an hour. Dallas Cowboy cheerleaders, who are better paid amongst their peers, earn $150 a game. The disparity is staggering. Although comparing the salary of NFL cheerleaders to those of NFL players may seem like comparing apples and oranges, they are both talent that makes up the NFL entertainment product. Although cheerleaders’ contribution to NFL is peripheral and cannot be said to be on par with the players or coaches, it is comparable to say an NFL team mascot. NFL mascots earn salaries ranging from $23,000.00 to $65,000.00 a year including health benefits. For additional comparison, consider that dancers performing in Broadway shows and musicals are paid more than $1,500 a week based on minimum wage agreements negotiated by the Actor’s Equity Association, the union representing Broadway performers.
Why cheerleaders are paid so little becomes even less clear considering the NFL and individual teams seem to recognize the important role that cheerleaders play in producing the overall entertainment product that is NFL football. The NFL head of communications David Tossell told CNN, “cheerleaders are part of American football culture from youth leagues to the NFL and are part of the game day experience for our fans.” NFL teams, like the Carolina Panthers and the Jacksonville Jaguars, routinely refer to their cheerleaders as “invaluable” members of their organizations. The Indianapolis Colts organization describes its cheerleaders as “ambassadors” of their organization. Generally, NFL teams view cheerleading as a hobby or part-time job in order to justify the low wage. In fact many teams unabashedly flaunt the perks of being an NFL cheerleader to recruit new talent. For example, in response to the frequently asked question: what do cheerleaders get paid? The Minnesota Vikings response sounds like a sales pitch:
Besides receiving two season tickets, free game parking, travel opportunities, sponsorships for FREE hair-cuts and coloring, FREE brow wax/shaping, FREE tanning services, FREE gym memberships, FREE make-up kits, FREE medical spa treatments, professional photo sessions, team clothing and apparel, and much MORE ….. team members are also paid for their time on game day, at many appearances, for travel/show tours, sales events and MORE! It works out to be a pretty great part-time job! (No emphasis added).
NFL teams understand that cheerleaders represent them in the communities that make up each team’s fan base, and accordingly, NFL teams hold cheerleaders to high professional and moral standards. As part of their employment, NFL cheerleaders are required to sign employment agreements and agree to abide by strict team rules and regulations. In Wampler v. Indianapolis Colts, a covenant in the Indianapolis Colts Cheerleader Agreement announces the high moral and ethical standard to which NFL cheerleaders are held:
Cheerleader agrees not to commit any act that will or may create notoriety, bring Cheerleader into public disrepute, or reflect adversely on Club or its sponsors. Cheerleader understands that she will serve as a public representative of the Club from time to time and that it is important to this employment relationship that she be viewed in a positive manner. Cheerleader agrees to behave in accordance with socially acceptable mores and conventions.
NFL teams profit from their cheerleading squads without leaving any room for cheerleaders to profit personally. For example the Oakland Raiders based eligibility for being a Raiderette in part on the cheerleader’s exclusivity. The Raiders cheerleader team policy flatly states: “You may not cheer for The Oakland Raiders and another professional or college team.” The Dallas Cowboy cheerleaders earn the organization over $1 million each year through personal appearances, merchandising, cheerleading camps, and licensing agreements. The Cowboys charge upwards of $200 an hour per cheerleader for public relations, charity, and performance events. In addition, cheerleaders generally are required to sign publicity releases that eliminates any possibility of them earning money from their role as a cheerleader. The Baltimore Ravens publicity release states cheerleaders must “expressly release and waive any demand, action, claim, license, royalty, or any other form of payment the undersigned…may have based on claims…relating to any use by the Ravens of the undersigned’s name, likeness or appearance. The St. Louis Rams cheerleading publicity release grants the team and unrestricted right to use the undersigned’s name, likeness, or appearance in any “form, content or medium in order to promote or market the Rams.”
Cheerleaders should rebuke this unfairness and strongly consider organizing to form a labor group from which they can assert leverage against NFL teams to increase their compensation for their valuable contribution to the NFL entertainment product. NFL cheerleaders are eligible to unionize under the National Labor Relations Act (“NLRA”) if they can establish an employment relationship with their respective NFL teams. However, if cheerleaders are categorized as independent contractors, they are excluded from coverage under the NLRA. The Internal Revenue Service points to several factors to determine whether a worker is an independent contractor or an employee including: (1) behavioral control: whether the business has a right to direct or control how the work is done through instructions, training, or other means; (2) financial control: whether the business has a right to direct or control the financial and business aspects of the worker’s job; and (3) the type of relationship, which relates to how the workers and the business owner perceive their relationship. (See TOR’s coverage of this issue in the context of pro golfers and the PGA Tour’s ban on anchored putters.)
There are aspects of NFL cheerleading that point to an employment relationship, and contrarily to an independent contractor relationship. Supporting an employer-employee relationship is that cheerleaders are closely controlled, supervised, and managed by NFL teams. Most auditioning cheerleaders must be at least 18 years old and have a high school diploma or GED. The NFL team management sets cheerleaders’ schedules, routines, and rules and regulations. Cheerleaders are also provided uniforms, dress codes, and guidance regarding their appearance. On the other hand, supporting an independent contractor finding is that cheerleaders are paid a flat fee per game, not salaries, and do not receive health benefits. In addition, cheerleaders do not enjoy continuous employment from year to year, but are forced to audition for NFL squads each season. However, if a team’s cheerleaders collectively perceived their relationship with their team as one of employment, the analysis may sway in favor of finding an employer-employee relationship.
Assuming NFL cheerleaders were found to be employees of NFL teams and therefore eligible to unionize, there are two ways in which they could form a league-wide NFL cheerleading union. The first is by getting at least 30 percent of NFL cheerleaders to sign cards or a petition saying they want a union. If the 30 percent threshold is met, the National Labor Relation Board (“NLRB”) will conduct an election. If a majority of voters opt for a union, the NLRB will certify the union as the collective bargaining representative for the class of employees. The second way NFL cheerleaders may form a union under the NLRA is by having each NFL team or possibly the NFL itself voluntarily recognize a union based on the support of a majority of NFL cheerleaders. However, this is unlikely to happen because NFL teams would then be obligated to bargain over cheerleader terms and conditions of employment, which would likely require them to pay cheerleaders higher salaries and grant additional benefits. Challenges to the creation of an NFL cheerleader union include the transient nature of the work; in many cases NFL cheerleading is a job that women do not make a career out of, which reduces their motivation to push for unionization. In addition, forming a union often requires public support to force the hand of the employer to improve working conditions; in the case of NFL cheerleaders, the public is at best split on whether they perceive NFL cheerleading as part of American culture or gratuitous sexism. Nevertheless, unionizing is an option that cheerleaders could employ to heighten their leverage with NFL teams and negotiate better terms of employment for themselves.
In an industry that grosses more money than the individual gross domestic products of more than 60 countries, it is hard to justify the poor compensation of NFL cheerleaders. NFL cheerleaders should earn a wage that is reflective of their contribution to their communities, the NFL entertainment product, and American culture as a whole. NFL teams should step up and treat these women like the ambassadors, leaders, and role models that teams require them to be.
[Thursday, November 21st, 2013]
BY JOSH SEIDMAN ’14
Drug use by professional athletes has been a controversial issue that has long captured the attention of the American public. More recently, the media’s widespread coverage of the use of performance enhancing drugs (PEDs) has led many to question the integrity of professional sports. This transformation has given rise to numerous public policy questions, concerns, and debates. The professional sports leagues have fought vigorously to end player use of PEDs through drug education and testing programs, while Congress has introduced legislation designed to set minimum steroid-testing rules and penalties, such as the Drug Free Sports Act and the Clean Sports Act. Considering the level of scrutiny regarding the use of PEDs, surprisingly little has been discussed about the appropriate level of testing on players for use of recreational drugs. Should professional athletes be subject to the same testing procedures and penalties for both PEDs and recreational “street” drugs? Testing for PEDs is accepted to ensure fair competition, but what justification exists to test athletes for recreational drugs?
Every professional sports league has a plan to evaluate and monitor drug usage for its players, including both PEDs and recreational drugs. These systems are developed exclusively through collective bargaining or consent in an individual player contract, and progressively punish drug usage in a step-by-step program, according to the amount of repeat offenses. The National Football League (NFL) set the standard in the U.S. when it began testing for steroid use during the 1987 season, and began issuing suspensions during the 1989 season, nearly two decades ahead of Major League Baseball. According to the NFL, it collects over 14,000 tests every year, more than any other professional sports league. Yet, despite setting the toughest standards for PEDs in American professional sports, with year-round random testing, it is fairly easy to beat the NFL test for recreational drugs as a player.
For players who are not in the substance-abuse program and who don’t agree to unannounced testing in their NFL Player Contract, testing (for cocaine, marijuana, PCP, MDMA, etc.) happens just once a year — between April 20 and August 9 during the preseason. After that test, the player isn’t tested again until the next year. That means, once a player has submitted to his annual test for recreational drugs, he can use them with impunity, as long as he does not engage in behavior that would place him in the substance-abuse program, such as being arrested for possession. The first positive test for a banned recreational substance results in counseling and treatment, not a suspension; only after multiple violations is a player suspended. In contrast, testing for PEDs happens on a random basis throughout the year, with one confirmed positive resulting in a four-game suspension. How foolish does a player need to be – or how addicted to drugs – to fail a test when he knows it is coming? Telegraphing when tests will occur undermines the effectiveness of testing and sends the wrong message to players – that they can use recreational drugs with minimal risk of league punishment.
One need only look at the many examples of the consequences of recreational drug use by athletes to understand why it is imperative to have the same level of scrutiny for both recreational drugs and PEDs. In December 2011, Chicago Bears wide-receiver Sam Hurd plead guilty to felony charges for intent to distribute cocaine, allegedly having sold drugs to dozens of NFL players. At the time of Hurd’s arrest, not a single player had recently failed a recreational test. If the charges brought against Hurd were true, players were using illicit drugs – stimulants, even, and potentially during the season – right under the NFL’s nose. As some of the most celebrated public figures in American culture, NFL players have an implied duty to serve as role models to the community at large. Not unlike learning a player has been gaining an unfair advantage from using, say, steroids, any situation in which players are engaging in the use or sale of illegal substances for recreation – within or outside of the season – would be a public relations nightmare for their team, as well as the NFL. To repair damage caused to the league’s image by players like Sam Hurd and prevent future similar incidents, the NFL needs to impose more stringent standards to deter recreational drug use, as it has with PEDs.
More recently, New England Patriots tight-end, Aaron Hernandez, was arrested on murder and gun charges. Rolling Stone subsequently ran a story claiming that, leading up to the time of his arrest, Hernandez had been using PCP, a dissociative drug that allegedly left him so paranoid, he always carried a gun. How could such flagrant, illegal behavior go unnoticed, especially considering that Hernandez had a previously documented history of substance abuse? Players that enter the NFL with a confirmed history of dependency are placed into the NFL’s substance abuseprogram. While in the program, that player can be randomly tested at any given point throughout the year, regardless of where they are. Hernandez slipped through the cracks because he passed his drug test at the NFL combine, and thus was never placed in the NFL’s substance abuse program. If the NFL had yearlong, random testing for recreational substances, it is possible that Hernandez may have received help before it was too late. Accordingly, the NFL needs to raise the standard for recreational drug testing by proactively monitoring substance abuse in order to protect player health and the safety of others.
With prescription drug abuse on the rise, it is important to note that some recreationally used drugs also have the potential to enhance players’ performance. The use of Adderall – a stimulant best known for treating ADHD – has been a hot button issue in recent years, with 14 players blaming PED suspensions on Adderall or similar substances. Now, the NFL and NFL Players Association (NFLPA) are discussing a proposal that would make a positive test result a substance abuseviolation, as opposed to a violation for PEDs. That means a player would be placed in a treatment program after the first offense, with suspensions and more severe punishment for additional violations. However, some addiction specialists and psychiatrists believe that Adderall can give a player a tangible edge by making them feel calmer, more alert, and providing a heightened sense of concentration within a game that is, so to speak, slowed down. In addition to any competitive edge the drug lends, it comes with significant health risks; as a Schedule II narcotic, it is highly addictive, and an overdose could result in a drug-induced psychosis or cardiac arrest. The NFLPA’s proposal, if accepted, might provide players with greater leeway to use and abuse Adderall, since recreational drugs are only tested for during a limited window of time. In doing so, players may simultaneously put their health at risk, and threaten fair competition. To account for substances that can be used both recreationally as well as to enhance performance, the NFL needs uniform testing procedures for all substances and their use.
As a result, the NFL finds itself in a position wrought with hypocrisy as it takes extreme measures to stop players from using PEDs – so called “cheaters” – but imposes only minimal testing requirements and far less punitive consequences for recreational drug use. One need only compare the numbers: In 2012, thirty-five players tested positively for PEDs, while only nineteen violated the substance abuse policy. Yet the previous and subsequent years boasted perfect examples (Hurd and Hernandez) of the growing problem of recreational drug use within the league. The impetus for this disparity is presumably that the NFL considers steroids a competitive issue, and recreational drugs a medical one. This explains why first-time offenders of the NFL recreational drug policy are only met with counseling and treatment, not suspensions. Regardless, the professed rationales for drug testing programs – fair competition, public confidence in games, the high visibility of players as role models, and the health and safety of athletes and those around them – are extant, and should apply to both the use of both PEDs and recreational street drugs. If the league’s testing programs are to have any merit, the consequences for drug use must be severe and across the board.
In the future, more frequent and less predictable testing may uncover better information on players who use recreational street drugs. The league may also encourage teams to engage in more intense scrutiny – background checks, for example – of players before signing them. If the NFL desires to provide what is considered the gold standard for fair competition in the arena of professional sports, it needs to adopt a harsher, if not zero-tolerance policy against the use of banned substances. Because changes to the NFL drug testing policy must be collectively bargained for, in addition to considering federal and state laws pertaining to illegal substances, the league would undoubtedly face NFLPA opposition to efforts to create a more clean, and thus fair, playing environment. However, the first step is for the NFL to acknowledge the disparity in their drug testing policy, and that recreational drugs are, or have the potential to be, equally harmful to the players, the teams, the league, and, subsequently, the public at large. Ultimately, though, the NFL needs to increase the level of scrutiny into player use of recreational substances. The implementation of identical testing procedures and penalties for both recreational drugs and PEDs would be an initial step in the right direction.