A Step in the Right Anti-Doping Direction

Can I tell you how happy I am that the NFL is insisting on HGH testing in the new CBA? As I wrote a long long time ago “why bother banning substances such as H.G.H. when it isn’t even tested for by the major sports leagues?”

I commend the NFL for being the first of the major leagues to make this step forward, and although it has to be agreed to by the players it’s a sign that the league is serious about doping violations. The players are going to balk – after all, it doesn’t matter the league, they almost always seem to. But, as I’ve said before – a Player’s Union has a fiduciary duty to the players who are not doping. It is in the best interest of the majority (those who do not cheat) to identify those in the minority (those who are cheating). Granted, that is when there is a union.

Even if tests for HGH aren’t perfect right now, it’s something that needs to be done for the integrity of the game. I hope the players understand that and will agree to HGH testing in the new CBA, after the antitrust lawsuit is sorted out by the courts of course.

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Sochi and the CBA

Sunday’s hockey games were great, but despite the enthusiasm created from watching the rivalry games, Gary Bettman is still hemming and hawing over whether there will be NHL players in Sochi in 2014.

Part of his argument is that with the time zone difference, there is less of an impact than when the games are played in North America, and that the players come back nicked up or even injured (the rest of his opinion can be read on NHL.com).

In the 2005 NHL Collective Bargaining Agreement, the NHL and NHLPA agreed that:

24.5 The NHL and the NHLPA shall continue to cooperate in the development of long range international hockey planning, including the World Cup of Hockey and NHL participation in the Olympic Games, as well as other International Hockey Games and tournaments.

and

24.8 Notwithstanding the foregoing, the NHL and the NHLPA commit to participate in the 2006 and 2010Winter Olympics, subject to negotiation of mutually acceptable terms with the IIHF.

But is this something that can be unilaterally decided by the NHL? Labor law designates the mandatory subjects of collective bargaining:

1. Salary
2. Hours
3. Terms and Conditions of Employment

It  could be argued that allowing the athletes to play is a mandatory subject that falls within the concept of Hours – the Olympics directly effects the season’s schedule through the frequency in which NHL games are played and the break in play. On the other hand, it could be argued that allowing the athletes to play in the Olympics would not fall under the mandatory subjects of collective bargaining, and instead only be considered a permissive subject of collective bargaining that was included in the current CBA.

Unfortunately, if determined to be a permissive subject of collectively bargaining then when the CBA expires, with notice, it can unilaterally be changed  by the party for whom the agreement was permissive. Therefore, if it was a permissive subject brought to the table by the NHLPA, then the NHL would  be able to unilaterally change it. However, if permissive and not mandatory, NHL may opt to use it as a bargaining chip for other concessions.

This current CBA will expire after the 2010-2011 season, and my hope is that the NHL and the NHLPA agree to the same terms in the 2011 CBA. It has been made very clear that some players, such as Ovechkin, will play in the Sochi Olympics regardless of the CBA outcome, it may be in the owners’ best interest to insure that the top stars are happy.

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