Transcript: SVP of Labor Policy & Government Affairs Adolpho Birch

Following is a transcript of NFL Senior Vice President of Labor Policy & Government Affairs Adolpho Birch’s 2013 NFL Scouting Combine media availability today at Lucas Oil Stadium.

NFL SENIOR VICE PRESIDENT OF LABOR POLICY & GOVERNMENT AFFAIRS ADOLPHO BIRCH
NFL SCOUTING COMBINE 

February 21, 2013 

On where the league stands on HGH testing: 

“I think where we are is largely where we’ve been since August 2011. We’ve tried to work with the union [NFL Players Association] as much as possible to address its concerns. That has consisted [of] everything from arranging meetings with the World Anti-Doping Association in Montreal where we all went.  The commissioner was in attendance and I guess the executive director [DeMaurice Smith] was not. It started there. It went from that to this notion of the population study. We hadn’t heard anything relative to that until after the meeting in Montreal, and at that point we ended up spending the better part of a year trying to work through those issues even though the consensus among the scientific community is such that the test as it stands is reliable, it’s accurate, and there is absolutely zero need for a population study of NFL players. 

“Notwithstanding, we’ve tried in every way we could to address the concerns, to put forward proposals on how to do the study. Interestingly to me, we were the ones driving the proposals for something that the players association claims to be of significant importance to it. We probably put forth the majority of the proposals. We were the ones to press the issue because to us it is very important to get this testing implemented as a part of the agreement. 

“I think you know that in December there was a hearing that Congressman Elijah Cummings held. For maybe the first time it definitively demonstrated the science was there on the test. There were no concerns about the accuracy and validity of the test and that a population study is not necessary. Couple that with baseball’s announcement that they were prepared to move forward with the full implementation of testing. We suddenly were confronted with the belief that it’s not about the population study, it’s about the appeals process.” 

On whether the NFL is still interested in game day testing:

“We think it’s important, yes. I think if you look at the effectiveness of any testing program, the point is to make sure that the window is always available to be tested. If there are any periods of time in which a person knows that they will not or cannot be tested, there is potentially an undermining of the effectiveness of that policy. Now, there are ways around certain things that can help to sure up certain issues. Ideally, certainly, the ability to be tested on game days is something we think is critical.” 

On whether a Super Bowl participant could be tested on Super Bowl Sunday: 

“Yes, in theory. A lot of it is about keeping the opportunity for testing open. And that does not mean every single person will be tested on game day or any other day. What it means is there is always opportunity and availability.” 

On whether it is inevitable that the Congressional committee begins to apply more pressure to get things resolved: 

“I have every belief that Congressmen [Darrell] Issa and Cummings are committed to seeing this through as they have been for the last two years plus. And if we can’t get it done they are going to continue to have involvement to make their presence and make their opinions known.” 

On the difference of opinion over the appeals process: 

“One issue to me that is interesting is that there is this claim that if we just had the MLB system for appeals then we would have testing by now. The reality is that many of the things that are features of the MLB appeals system have been consistently rejected in proposals that we’ve made over the course of the past two years. The question is, ‘What is it about some of that system that is important?’ For example, one of the statements was that they need neutral appeal or third-party arbitration. We’ve been proposing third-party arbitration in every proposal we’ve made since probably 2009. It’s hard to understand what it is about the system that they’re saying we have not made a proposal on. It is clear that in response to the recent set of issues, we put forth a proposal on every one of the stated concerns they had concerning the appeals process.” 

On whether his concerns grow the longer the negotiation process takes: 

“To me, I have several concerns. I have concerns about the vast majority of our players who are clean and want to compete in the right way. I am concerned that they are being sacrificed for issues that don’t involve the policy and are really about the do overs of issues that are unrelated to this particular steroid policy. I have concerns about that minority of players that are looking to game the system. That they believe, given the union’s lack of urgency on this thing, that they might be able to get away with bending or cheating the system. The fans who see this continued effort and inability to get this done as some sign the league, the NFL and its players, aren’t serious about eliminating the threat of performance-enhancing drugs. I’m worried about our kids who are looking at this and wondering about the NFL’s commitment, and the level of the players’ commitment, and translating it down to their understanding of what’s important and how they should play the game, and how they believe that sports should be handled. To me, there are a number of concerns and I think they are all legitimate if in fact we continue to go down this road and not get to a resolution. It’s just enough. We’ve been through this for two years now.” 

On what he was referring to when he mentioned ‘do overs of issues’: 

“I think [the union] are the [ones] to ask. If we’re talking about a population study for the better part of a year and a half, now we’re apparently talking about appeals processes and independent or third-party arbitration, which has been on the table in part of the proposal since 2009 and 2010. I don’t know is, I guess, the answer to the question. The reality is that the longer we continue to stall out on this issue or not have an effective regiment in place, I think it continues to do a disservice to all of us. That to me is the biggest issue.” 

On whether the union wants to appeal the science of the test or some other process: 

“We have issued a proposal to them to allow them to appeal the science of the test. Even though we believe at the end of the day if the parties agree to a system, it should not be the right or the objective to have people challenge or undermine the root of the system you put together when it has been constructed over 20-plus years by both parties. Notwithstanding that, in an effort to move this along, because we are very confident in the test and that the test is accurate, the test is reliable, and that it is perfectly appropriate for NFL players. What concerns us, and is the reason why there’s been resistance on our part, is that what we don’t want is to create a path for someone to be able to utilize the appeals process to stall the inevitability of discipline, or simply delay the imposition of discipline. We don’t want frivolous appeals, we don’t want redundant appeals, and we don’t want appeals that are designed solely to delay the inevitable. To some extent we are concerned about all of those and those are reasonable things we are looking to put into the policy as well to avoid those outcomes.” 

On whether the NFL has offered a proposal to allow the union to appeal the science behind the testing:

“Absolutely.”

On when that proposal was made: 

“Before the Super Bowl.” 

On the union’s response to the proposal: 

“I just got a response last night. I need to look at it but I guess I should withhold until I see what that says. Up until last night, we had not gotten a response.” 

On whether the two sides have stopped talking about a population study during negotiations: 

“What, in our view, has become crystal clear is that there is no need, no necessity, and no appropriateness for there to be a population study that is unique to NFL players. The population studies have been done. Let’s not lose sight of the fact that there have been population studies. There have been thousands of tests before on a variety of different athletes in a variety of different countries in a variety of different sports. So it is not as though the studies have not been done. The question is whether or not an NFL-player specific study needs to be done. That question has been answered as resoundingly ‘no’ by every credible scientist and other expert who has reviewed any piece of the information concerning the isotopes test.” 

On whether the union has conceded on a population study after review by scientists and experts: 

“You’ll have to ask them.” 

On how many times a single player could potentially be tested throughout the NFL calendar: 

“We’re operating under the 2010 policy, and under that policy players are eligible to be tested every single week of the playing season, including the postseason if your team is in it. You’re eligible to be tested up to six times during the offseason. You will have a mandatory test under any scenario. It just depends on what that computer draw brings up. As of now those are things we don’t expect to change going forward under any system that we’d have, because as I was alluding to earlier, it’s critical that you be available and potentially tested at any given time. That’s what the policy has sought to do and it would be a tremendous step backwards if it changed from that viewpoint.” 

On whether the union is adding issues unrelated to HGH testing to negotiations in an attempt to prolong an inevitable outcome: 

“I do think that there is an effort to go back and revisit a lot of things that were agreed to, negotiated on extensively, and agreed to by the parties. And you can name any number of things over the years or the past several months that represent efforts to take another look at things that have already been decided. That’s everything from the implementation of HGH testing to the commissioner’s authority on conduct-detrimental cases to any number of things. I do think at the end of the day that it is a disservice to all not to be able to focus on the issue at hand, particularly in regards to HGH testing.” 

On whether the union’s behavior resembles traditional negotiating stall tactics: 

“I know it has been a stall. I don’t know if it’s a tactic. You can classify it as you wish. There is absolutely no reason for this to have taken this long and us not to have testing implemented. We should have been more than a year into this by now.” 

On whether Adderall use is a trend in the NFL or just an excuse used by players who tested positive for PEDs: 

This probably is a point that’s worth raising. One of the features of the MLB appeals system that we have proposed from the beginning has been to be able to disclose the substance that formed the basis of the violation. It is largely for that point, to make sure that everybody is clear on what that substance was so that there is no misinformation and ability to go behind and minimize what the nature of an individual’s violation is. We think that’s very important not only for accuracy, but also to help other players understand the types of substances that potentially could lead to a positive result. We think from an educational standpoint it’s important that everyone understand exactly what substances were involved, but the union has consistently rejected it. That would be another feature of the MLB policy that they said they would take today that they apparently don’t want today. 

To the extent that Adderall and amphetamines are a part of any trend, I think you have to look at it in the context of a societal trend. Those are substances that are becoming more prevalent among youth and this generation of player. It is a reflection of the types of substances that are being utilized in colleges and more among youth and young adults. I wouldn’t necessarily expect that not to be reflected in some of the problems we are seeing in the NFL. 

On whether the NFL would like to be able to disclose or characterize the nature of a positive PED test: 

I would never characterize it as a mistake, intentional use or anything like that, but I think to know what the basis of the violation is is important for the public. I hear a lot of discussion about transparency and how important that is. When it comes to issues like this, for example, being able to correct obvious misrepresentations that undermine the effect of this whole policy – that’s another feature of the MLB policy that we have pushed for a number of years now.  In our view it undermines the policy itself when misrepresentations can be made without them being corrected because we have to make sure that those who have interest in our game understand what the policy did, what the actors of the policy did or what the testing found – things that restore the confidence in how this policy is being put together and how the people that are responsible for administering it are performing their duty. 

On whether the union using HGH testing as a way to renegotiate aspects of the Collective Bargaining Agreement: 

It is far from determined. The basis for the decisions that they are making, I don’t know. I do know that we have had a history of 20-plus years of reaching agreements for the obvious betterment of the athletes, who want to compete fairly and cleanly and not have to worry about someone next to them potentially violating the policy in a way that gives them an unfair advantage. That system is something that should not just be thrown into chaos because there’s a question about whether or not the commissioner should hear the appeal of a guy convicted of domestic violence. These are things that are important to the integrity of the game and they need to take center stage with that level of importance again. I think, to some extent, things are being caught in a web of a larger set of issues or another set of issues that’s diminishing the importance of, what we feel, is one of the most important issues.

The union is quite capable of explaining what their position is on it. We’re trying to look at it in a way that helps us to try to understand the union’s position so we can get a resolution. To some extent those are the only kind of conclusions we can draw.

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