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

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

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.