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

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.)

Fire departments should not "play that game." Samples should be collected in a controlled environment.

Diluted Samples
In 2006, four percent of the major league players urine samples were diluted; minor league players had only a two percent dilution rate (page 271). The Mitchell report noted, "[D]iluted samples (those with insufficient specific gravity) usually result from attempts to mask prohibited substances in the player's body." Until 2005, the Major League Baseball / Players Association joint Drug Prevention and Treatment Program prohibited any discipline for first positive players (page 308, footnote 583), and made no exception for players intentionally providing diluted samples.

Departments should treat every diluted sample as a positive test, and promptly impose discipline. Providing a diluted sample is evidence of willful, deceitful misconduct and the level of discipline should so reflect.

Destruction of Test Documents
Senator Mitchell's report found that once the testing laboratory used by Major League Baseball confirms a negative sample, the lab was required by the Major League Baseball and Players Association to "immediately destroy all documents relating to this sample. This requirement could impede or prevent an audit." (Mitchell Report, page 266.)

Fire Departments should require the testing lab to maintain test documents, including those reflecting a negative test (with firefighter's name deleted) so independent audits can be performed of testing procedures.

"Designer" Drugs
The Mitchell report was particularly harsh about Major League Baseball's failure to retest players suspecting of using hard-to-detect "designer" steroids. The report compares Major League Baseball to the procedures used world-wide by international sports organizations, in accordance with the World Anti-Doping Association's (WADA) Code of 2003.

"When a test results suggest the possible use of anabolic steroids but nonetheless does not qualify as a positive test result, WADA procedures require the sample to be reported as 'atypical,' requiring further investigation and comparison with prior test results or the establishment of a longitudinal profile. Because an individual's ratio of testosterone to epitestosterone will remain relatively constant from test to test, changes in an individual's T/E ration might be evidence of anabolic use even if the ratio does not establish use. Analysis of longitudinal data can also provide a method to detect steroid use for so-called 'designer' steroids; this may provide a method to combat the use of new and otherwise potentially undetectable steroids such as the designer steroid 'the clear' that was at the center of the BALCO investigation." (Page 266, footnote 527.) This reference to BALCO is particularly important, since Barry Bonds has been indicted for allegedly lying to a federal grand jury about the substances he purchased from the BALCO Company in California.

Departments should require their testing lab to report all "atypical" results, including firefighters who attempt to drink massive amounts of water to dilute their sample. The department should then conduct an internal investigation, including an interview of the firefighter and conduct follow-up testing.

Mexican Veterinary Steroids
The Mitchell report reports, "Many Mexican manufacturers of veterinary steroids altered their production to account for increased demand for human use of steroids in the United States" (Page 301, footnote 576). The Drug Enforcement Administration raided eight veterinary steroid manufacturers in December 2005, and on September 25, 2007 announced their largest DEA steroid criminal investigation, "Operation Raw Deal" in cooperation with agents in Mexico, Canada, China, Belgium, Australia, Germany, Denmark, Sweden and Thailand, with 143 search warrants executed in the USA, and 124 arrests.

Fire departments need to recognize that we have a nationwide problem with drug abuse, not just steroids, and the fire service is not exempt.

Random Drug Testing of Firefighters
Many courts have upheld random drug testing of firefighters and police officers given the safety-sensitive work they perform. Many departments have negotiated random drug testing in their collective bargaining agreements. For example, in April 2008, the Cincinnati Fire Department begins random drug testing pursuant to their new CBA with IAFF Local No. 48. (Send an e-mail to the author of this article if you want a copy.)

Fire departments should consult with local legal counsel about lawfulness of random drug testing in their state.

Conclusion
Senator Mitchell concluded in his report, "The clean major league players deserve far better than they have had to endure." (Report, page 306.) Fire departments that administer random drug testing should read the report's section on Major League Baseball's administration of the program (starting at page 263) and tighten up any "loopholes" in your fire department's procedures.


Larry Bennett is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, Prentice Hall/Brady (2007), that was recently selected for use by the National Fire Academy in its distant learning program. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page. You can contact Larry by e-mail at: lawrence.bennett@uc.edu or at the University of Cincinnati at 513-556-6583.

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