Larry's Legal Lessons: Baseball, Drugs & Fire Departments

Departments that conduct random drug testing should maintain and publicly disclose aggregate test results.


Legal Lesson Learned: On Dec. 13, 2007, former U.S. Senator George J. Mitchell issued his "Report To The Commissioner Of Baseball Of An Independent Investigation Into The Illegal use Of Steroids And Other Performance Enhancing Substances By Players In Major League Baseball." (Google: search for "George J. Mitchell".) Fire Departments that conduct random testing need to make sure their programs are administered a lot "tighter" than Major League Baseball's drug testing program.

Public Reporting of Aggregate Test Results
The Major League Baseball and Players Association Joint Drug Prevention and Treatment Program had lots of loopholes. One of the most serious was the program's failure to report on the program's aggregate results. "Major League Baseball does not provide reports on the joint program's aggregate results." (Mitchell report, page 265.)

Departments that conduct random drug testing should maintain and publicly disclose aggregate test results (while protecting the privacy of those tested by not disclosing firefighters' names). For example, see attached chart from a fire department with over 1,500 firefighters.

Year....Positives...Random tests..% Positive
1999......8.............369..................0.021
2000......3.............370..................0.008
2001......4.............372..................0.010
2002......6.............238..................0.025
2003......5.............382..................0.013
2004......2.............355..................0.005
2005......3.............373..................0.008
2006......2.............361..................0.005
2007......1.............376..................0.002

Advance Notice
The Major League Baseball provided players being tested in the off-season with up to 72 hours advance notice (Report, page 272). Baseball players tested during the season were given 30 minutes advanced notice. The collector would come to the clubhouse and wait out front, while the player was given 30 minutes to bring the urine sample to the collector (Report, page 271.)

Fire department's should consider the method used by the 1,500 member agency, with the above chart - they have learned some lessons since starting random testing in 1999. Now when a firefighter's name is randomly selected, an EMS lieutenant in a command vehicle is informed by a phone call, and is directed to immediately drive to the firefighter's station, pick up the firefighter and drive to the urine collection location. If the selected firefighter is on a temporary duty assignment at another station, the EMS officer then goes directly to the other station to pick up the firefighter.

Collection of Samples
In early 2007, Major League Baseball and the Players Association agreed that the drug testing company could now send two people to the clubhouse: a collector and a "chaperone." The report describes the new system, "When the collector and chaperone arrive at a clubhouse, they provide the team representation with a list of players to be tested - typically between four to eight players, sometimes as many as ten. The chaperone accompanies the team representative as he notifies the players who have been selected for testing. Each player has up to thirty minutes following notification to check in with the collector. If the player states at check-in that he is unable to produce a sample at that time, he may 'go about his regular pre-game activities.' This procedure permits the player to provide samples several hours after the initial notification. The chaperone is responsible for monitoring the players until they provide samples." (Report, pages 271-272.) Chaperones are NOT PERMITTED to follow the player to the dugout, field of play, or media room. Why not? The Mitchell report comments, "The Commissioner's Office believes that minimal risk arises from these limitations because of player's inability to engage in masking activities in these public areas." (Report, page 272.)

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