Media & Entertainment Law

Senator Mitchell?s report on performance enhancing substances in baseball suggests improvements for baseball?s testing policy. In particular, Mitchell calls for increased transparency of the testing process, independence for testing authorities, and greater frequency of unannounced testing, particularly in the off season.

The NLRA effectively blocks the adoption of Mitchell?s suggestions by making drug testing of employees a mandatory subject of collective bargaining. This means that the Players Association must agree to any change in testing. Needless to say, the foxes rarely seek stronger protection of the henhouse. In Mitchell?s words, the Players Association has historically ?opposed mandatory random drug testing.?

Moreover, the policy behind the NLRA does not apply to pro sports. The general counsel of the National Labor Relations Board declared that ?a drug test is designed to determine whether an employee or applicant uses drugs, irrespective of whether such usage interferes with ability to perform work.? Since, for many workers, drug use is unrelated to job performance, their unions have a legitimate interest in protecting their privacy rights. Such a rationale does not apply to baseball. Performance enhancing substances fundamentally undermine the players? ability to perform their work; being clean is an intrinsic part of their job.

Congress should, therefore, modify the NLRA to allow the major league commissioners to impose unilaterally performance enhancing substance testing. Both the Olympics and minor leagues allow their overseers similar power. The mere presence of a union should not insulate the pros from such testing.

Modifying the NLRA is neither difficult nor unprecedented. The Omnibus Transportation Employee Testing Act of 1991 mandates that over 12 million employees in the transportation industry undergo random drug and alcohol testing.

Like workers in the transportation industry, the use of drugs in pro sports poses a public safety risk. Young athletes watch and emulate the pros. The National Institute on Drug Abuse estimates that hundreds of thousands of high school athletes currently use steroids each year. After Mark McGuire went public about his use of androstenedione, andro use in high school student increased tenfold the following year. Performance enhancing substances in pro sports pose a public health hazard that deserves congressional attention.

Some may argue that the commissioners will abuse their power to impose testing for performance enhancing substances. However, there is no evidence of abuse in the Olympics, minor leagues, or amateur sports where overseers have imposed testing unilaterally.

As any good ballplayer knows, the only important pitches are those ahead. Instead of focusing on the steroid use of the past, Representative Waxman should concentrate on the testing program of the future. Bud Selig should have the same ability to impose testing on the pros as he does in the minor leagues. David Stern should be able to test basketball players just as the IOC tests them. Congress should modify the NLRA to remove drug testing as a mandatory subject of collective bargaining and allow the commissioners to clean up their sports.

Aaron Zelinsky is a first year student at the Yale Law School. He can be reached at aaron.zelinsky[at]gmail.com

Full post as published by Sports Law Blog on January 18, 2008 (boomark / email).