MLB's acceptance of HGH blood tests and this change are widely thought in part to be sought to put more pressure on the NFL, whose ineffective drug policy has been ignored by the media. The NFL's stance on its policy is clear; it is more about public relations than getting drugs out of the game. MLB has always taken the opposite stance, taking media blow after media blow and keeping "steroids" on the tongues of too many pundits and fans.
Selig's push for stronger penalties was well known, but he was hardly alone. A source with knowledge of the negotiations told me on Tuesday that the players actually pushed for stiffer penalties. "[Players] suggested starting with a one-year suspension and maybe going away from three strikes," he explained. It seems the players weren't speaking idly last year during the Alex Rodriguez hearing. They were willing to get very strong with penalties, even acting against their own interest to some extent.
On the MLB side, the longer penalties will give the owners an easy win, plus they could close the issue of valuation. Several players have been suspended and then been given large contracts, such as Jhonny Peralta this offseason.
With a longer suspension that could carry over to the following season in many cases, there could be more inhibition. That remains to be seen. Several players have been given significant raises in the past, including Guillermo Mota, who was given a free-agent deal with his entire suspension ahead of him.Another major change in the policy is that MLB will use new types of testing. While I won't try to explain things like LC-MS/MS testing procedures, suffice it to say that new techniques make it more likely that MLB's testing program will detect HGH and other growth hormones, including MGF. Baseball is also making use of more advanced testing for testosterone and for peptides, which were a major part of the Biogenesis program.
Blum and others also report significant alterations to how penalties are calculated, closing the loophole that Alex Rodriguez's attorneys found. That loophole, where pay is based on days rather than games, will give Rodriguez a $2.8 million paycheck this year despite the 162-game suspension handed down.
So with all the give that the MLBPA gave in this negotiation, what did it get? First, it followed the instructions of the membership, which wanted stronger penalties. However, it did get a major give from MLB with a new procedure and penalty for what it is calling "inadvertant use."
This is not the so-called "false positive." MLB has had cases where a player has used a product that was later found to be tainted. The cases of J.C. Romero and Guillermo Mota offer instances where a player has taken a supplement, tested positive and had a real defense.
Romero, for his part, took the makers of the supplement to court. The case was settled, giving Romero some measure of his income lost during the suspension back. With the new rules, Romero may have been able to significantly reduce the suspension, down to a suggested 25 games.
The reported new guideline for the arbitrator about "intent" is very interesting. This is the first major drug-testing agreement to go away from the standard of strict liability. Under all other rules, including that of the World Anti-Doping Agency (WADA), this tenet of the code that makes an athlete liable for anything ingested has been sacrosanct. It appears that MLB is giving players the possibility to use unintentional use as an affirmative defense.
The new agreement also is said to clarify how non-analytic positives will be handled. While the commissioner does retain "just cause" power, that will take a lot more than what MLB had in the bulk of the Biogenesis cases. While the details of this are not public yet, it will make arbitrary suspensions more difficult and more likely to be handed down by an arbitrator rather than the commissioner.
The new JDA does not appear to have any changes for non-PED violations, such as stimulants or "street drugs." This would come as something of a surprise, but the penalties have never matched since amphetamines were added to the JDA in 2006.