Drug testing, regulation of agents lapse during NFL lockout

March 25, 2011

The shutdown of the NFL that began 13 days ago has had some rather obvious results. The sport’s free agent market hasn’t opened. Potential player trades are on hold. Coaches can’t be in contact with players and no one knows if the regular season will begin on schedule in September.

But there are also some less obvious ramifications. The NFL’s drug-testing program for players is no longer in effect and some question whether the league can punish players for violations of its personal conduct policy committed during the lockout. Because the players have dissolved their union, the NFL Players Association no longer polices agents.

“It’s all uncharted territory from here on out,” said David Cornwell, an attorney who represents players on a variety of issues, including drug cases. “Everything that emanates from the Players Association regulating agents is suspended. And everything that emanates from the NFL regarding the regulation of players is suspended.”

The owners of the 32 NFL franchises locked out players March 12, one day after labor talks collapsed and players decertified their union and filed an antitrust lawsuit against the owners.

Players are not being drug-tested during the lockout, the sport’s first work stoppage in 24 years. Cornwell said the disappearance of the program is “significant,” in large part because counseling for players has ended along with the testing.

“Everyone always focuses on the violations and discipline,” said Cornwell, a former assistant counsel for the league and a finalist for the union’s executive director job in 2009. “But a player who is involved in the drug program is generally found to have issues requiring various kinds of counseling. Rarely is drug use the problem. Usually it’s a symptom. I’m concerned about that.

“The question,” he added, “is whether those who are in the program will react to stress by turning back to drugs.”

Charley Casserly, the former general manager of the Washington Redskins and Houston Texans, said the lack of testing might not be quite as alarming as it sounds because the program will return well before games are played.

“The players are going to have to be responsible for themselves,” Casserly said. “As soon as this thing is over, there’s going to be drug testing. I don’t think that’s a big issue. Most players will be responsible. And if you’re a coach or a general manager, there’s nothing you can do about it.”

One suggestion quietly being contemplated by some agents is phasing the drug-testing program back into operation, with an initial grace period, once the lockout ends. But Adolpho Birch, the NFL’s senior vice president of law and labor policy, said there is “no basis” for anything other than putting testing for steroids and other drugs back into effect immediately.

“We have advised the players they should be prepared for the immediate reinstitution of those policies,” Birch said.

There also could be questions when the lockout ends about enforcement of the personal conduct policy, which gives NFL Commissioner Roger Goodell broad powers to discipline players and others for off-field misconduct.

Birch said the league’s position is that Goodell “absolutely” could punish players after the lockout for violations of the conduct policy committed during the work stoppage.

“When this ends, the commissioner still will be charged with the duty to protect the best interests of the game and the integrity of the game,” Birch said. “We know the effect of misconduct on the way our fans look at our game. The vast majority of our players are law abiding and I would hope they feel the same way.”

That position provides ongoing deterrence to players, Casserly said. “Any players who get arrested or do something else in terms of conduct, they possibly could be dealt with when this is over,” he said. “Players have to be aware of that.”

Goodell was less direct Tuesday at the annual league meeting in New Orleans when asked about disciplining players after the lockout. He called that scenario “hypothetical” and said: “The personal conduct policy continues. It applies to everybody in the league. I don’t know how it would apply to the players under this circumstance, but it’s something that I feel strongly about that we owe to our fans. We owe it to our game.”

It is not clear whether the players’ side will agree.

“That’s something the Players Association has to address as part of any settlement,” veteran agent Peter Schaffer said. “That has to be specifically delineated.”

The union formerly certified and regulated agents, sometimes suspending any found guilty of professional misconduct. But when the union was decertified and became a trade association instead, it also lost its authority to oversee agents.

“I think the vast majority of the agents, at least the good ones, intend to continue to adhere to the standards of ethical behavior,” Cornwell said. “But for the less scrupulous ones, this is a wild, wild West environment. I’m sure they feel this is a chance to get a toehold. It threatens the industry.”

The union’s agent program included a system for resolving disputes among agents over the representation of players. Schaffer said he believes the representation agreements that players sign with agents remain valid and can be enforced, if necessary, in court. That is actually a better forum for settling such disputes, he said, because the union-supervised process did not include subpoena or discovery power.

“The contracts that everybody has are valid, in my opinion,” Schaffer said.

But Cornwell said he isn’t certain the representation contracts remain valid. He has drafted a different version and offered it to some agents.

The union had rules that governed when agents could contact college players and, in effect, prohibited actions that would cause a player to lose his collegiate eligibility. Those rules no longer are in effect, although there are federal and state laws that regulate agents’ conduct with college athletes. Schaffer said that everyone involved in college sports, including the players themselves, should be on alert.

“If people are going to break the law and cheat, and players choose to go with them, that’s the players’ fault,” Schaffer said. “They know the rules, too. If an agent is willing to cheat to get you, he’ll be willing to cheat when he has you as a client.”

College athletic departments already are wary.

“I think it’s a concern,” said Jamie McCloskey, who oversees the the University of Florida’s compliance with NCAA rules. “What’s unfortunate is that there have been discussions between the NCAA, the NFL and the NFLPA about what the issues are and what we can do as a collective group to address them. Now that’s come to a halt.”

In some ways, the NFL moves on. The draft will take place next month. The NFL still plans to release next season’s schedule around mid-April, according to a spokesman. But, at least for now, those are are only glimpses of NFL normalcy.

“This could be over in two months,” Casserly said. “It could be over in six months. No one knows.”

maskem@washpost.com

Mark Maske covers the NFL for The Washington Post.
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