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How MLB's New Drug Program Changes Could Impact the League

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How MLB's New Drug Program Changes Could Impact the League
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MLB was ready to once again amend its Joint Drug Agreement (JDA) that sets the terms for the drug-testing program and penalties.

The changes to the drug agreement were first reported by Ronald Blum of The Associated Press. Both the AP and other sources pegged the new penalties at 80 or 81 games for the first offense, 162 games (a full season) for the second offense, while the third offense remains at a lifetime ban.

Well, it turns out they were dead on, according to Ken Rosenthal of FOX Sports:

MLB made the announcement of the new JDA official on Friday, ensuring it would be in place before the first Sunday-night game. Negotiations over proposed changes have been ongoing since last year, spurred by the Biogenesis case. While increased penalties will be the big story for most, in fact, the key development is a very technical change that could impact why players are penalized.

Bud Selig gets to announce new, stronger penalties, something he had been pushing for since the Biogenesis case came to light. The penalties have increased for the fourth time since the initial JDA, something no other league has done even once. With Selig's last season as commissioner about to start, he's hoping that a firm stance on performance-enhancing drugs will now help his legacy.

According to Bob Baum of The Associated Press (h/t to The Boston Globe), it is widely believed that MLB's acceptance of HGH blood tests and this change seek 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 approach, absorbing media blow after media blow and keeping "steroids" on the tongues of too many pundits and fans.

Selig's push for harsher penalties was well-known, but he was hardly alone. A source with knowledge of the negotiations told me on Tuesday that the players actually encouraged 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 during the Alex Rodriguez hearing. They were willing to accept stricter punishment for the betterment of the game, even compromising their self-interest to some extent. 

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On the MLB side, the longer penalties will give the owners an easy win, plus the notion of valuation could become a non-issue. Several players have been suspended and then awarded large contracts, such as Jhonny Peralta this offseason.

With a longer suspension that could carry over to the following season in many cases, general managers may exercise more inhibition. However, that remains to be seen, as offenders have been known to receive 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 employ 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 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 result in Rodriguez getting a $2.8 million paycheck this year despite the 162-game suspension handed down.

So with all that the MLBPA sacrificed in this negotiation, what did it get? First, it followed the wishes of the membership, which called for stronger penalties. However, it did get a major gift from MLB in the form of a new procedure and penalty for what it is calling "inadvertent 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 back some measure of his income lost during the suspension. With the new rules, Romero may have been able to significantly reduce the suspension, down to a suggested 25 games. 

The reported new arbitrator guidelines regarding "intent" are very interesting. This is the first major drug-testing agreement to move 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 option 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, it will take a lot more than what MLB had in the bulk of the Biogenesis cases. While the details of this are not yet public, 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 incorporate 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. 

Biogenesis and the athletes caught in the investigation are the clear catalysts for change here, but for the players, there are many reasons to approve. The PED stigma has always worked against baseball, and players have reacted to this by making strong statements. Increased penalties improve that perception while also making the overall system more fair to them. 

It appears that Tony Clark has his first big win as MLBPA director. Taking over for the popular Michael Weiner, Clark's bona fides as a negotiator and advocate have been questioned, but with this, the former player has proved to be a strong leader while maintaining the trust that Rob Manfred and Weiner built up since 1994.

While the MLBPA director normally does not handle negotiations like this, I am told by multiple sources they began last year before Weiner's passing. On the management side, talks were handled by Daniel Halem and Rob Manfred, whom many expect to be the next commissioner. Spearheading this project and increasing penalties may help Manfred solidify his position as Bud Selig's replacement.

This should be a win-win for MLB and its players. A more severe penalty for violating the drug policy will not only continue to drive drugs out of the game, but it may quiet some of baseball's critics who say the policy was not strong enough despite significant evidence to the contrary.

While there will always be someone who thinks they can beat the system or is desperate enough to try to outsmart the policy that even USADA says is the best in professional sports, MLB is doing everything it can and more than any other organization to nip it in the bud.

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