04/27/2008 06:11 pm ET Updated May 25, 2011

Drug Testing Hubris

Much of the public discussion of the drug "scandals" in baseball has waned as the actual season on the diamond began. It is comforting that the game is still more interesting than the sludge it sometimes produces. The "hot stove league" between November and April cooked up some nasty stuff, aided this year by the fallout from the Mitchell Report. Yet there have been some recent developments worthy of attention that may have slipped beneath the public's radar.

Major League Baseball and the Players Association have reached an agreement strengthening their testing system which is designed to keep the game drug-free. The scheme builds on some of the recommendations of the Mitchell Report. The Commissioner has agreed that he will not further punish those players named in the Report, an essential part of Senator Mitchell's proposed resolution of the tempest. Players named in the Report have already suffered serious public disgrace, even if they were completely innocent of the charges hurled at them. As a result of the negotiated amnesty, the 15-day suspensions of two players, Jose Guillen and Jay Gibbons, were withdrawn.

The deal also includes an increase in annual in-season and off-season testing, and a renewed commitment (with a $200,000 contribution from the Players Association) to educate youth about the perils of performance-enhancing drugs. There are strict limitations on the disclosures of the names of players accused of testing positive. The parties also enlarged the list of banned substances, so don't go trying gonadotropins, aromatase inhibitors, or selective estrogen receptor modulators. They may be hard to find in any case.

Most importantly, for those of us concerned about the lack of due process in the procedures used by Senator Mitchell, under the new deal an accused player will be informed of the evidence against him before any investigatory interview. While this is certainly not a trial-type fair hearing, it is better than the Star Chamber. Both parties, in particular the Players Association, have come a long way from their pre-2002 positions on these issues. Collective bargaining can be a frustrating and drawn-out process, but it is critical for the long-term health of the sport that the parties continue to work together without Congressional interference in order to protect the rights of the players and the public's confidence in the game.

One would think that this new agreement would satisfy even the most doctrinaire critic of the National Pastime. Alas, the self-appointed protectors of the moral fiber of America could not resist criticizing the plan. Dr. Gary Wadler of the World Anti-Doping Agency carped about the fact that the parties had not accepted Mitchell's recommendation that an independent entity be selected to conduct the drug tests. And that independent entity, according to Wadler, should be the US Anti-Doping Agency (USADA). Draw your own conclusion as to whether this seems like self-dealing advice. (In fact, the parties do use an Independent Program Administrator for testing purposes who is given a three-year contract and can only be removed if the parties' permanent neutral arbitrator finds cause.)

There are some, like Dr. Wadler, who see drug testing as the answer to all of our fears. Drug testing, however, is not always an easy or reliable process. While the American public has been convinced by the marvelous CSI trio of shows that technicians and their machines are fool-proof, they are not. Machines operated poorly produce faulty results. Humans handling samples make mistakes. Even the USADA makes mistakes and, in the process, can ruin reputations.

Were there are doubts about the fallibility of the testing process, consider the recent case of American sprinter LaTasha Jenkins who tested positive for the banned substance nandrolone after a meet in Brussels in July 2006. Her career was at an end. Represented by law students from the Sports Law Clinic at Valparaiso Law School and its Director Michael Straube, Jenkins triumphed over the USADA. A three-person arbitration panel of the American Arbitration Association ruled that the "independent" testing agency in France had botched Ms. Jenkins' test. Their error was so simple-minded as to be numbing: the labs testing her sample violated the international standard that requires that tests be run by two different technicians. So much for independence, and so much for Ms. Jenkins' reputation. Despite the clear evidence of a breach of testing protocol, the USADA appealed the arbitration panel's award to the Court of Arbitration for Sport. Why would it do that other than as a result of an overdose of drug testing hubris? Finally on April 14, 2008, the USADA threw in the towel and withdrew its appeal.

There should be no wonder why players and player associations have raised serious concerns about drug testing. The impact of a false-positive result is devastating. Leaks of names from within the process are equally destructive. The only way to minimize mistakes is to make sure the testing is done under the watchful eye of the only protector the players have -- their union. Preaching moralists who want to test us all should be banned from the pulpit.