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Posted: Saturday January 10, 2009 1:13AM; Updated: Saturday January 10, 2009 1:13AM
Michael McCann Michael McCann >
SPORTS LAW

More exemptions in baseball for amphetamines broadens debate

Story Highlights

MLB authorized nearly 8 percent of its players to use drugs for ADHD in 2008

The increase fuels suspicions that players are circumventing the drug policy

Don't expect Congress to conduct another round of high-profile hearings

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Congress will probably resist the temptation to conduct another round of hearings.
AP

Friday's announcement concerning major league players' drug-test results from 2008 could reignite congressional interest in the use of performance-enhancing substances in Major League Baseball. It may also lead to a broadening of the debate over which types of performance-enhancing substances should be prohibited in baseball. While the debate has mainly centered on strength-inducing substances, such as steroids and human growth hormone, cognitive-enhancing substances, such as amphetamines and possibly even energy drinks, may soon take center stage.

The announcement, issued by Dr. Bryan Smith, MLB's independent drug-testing administrator, indicates a slight increase -- from 103 to 106 -- in the number of therapeutic use exemptions (TUEs) granted to big league players for Attention Deficit Hyperactive Disorder (ADHD). The TUEs enable players to receive prescriptions for such drugs as Adderall and Ritalin, which were prohibited by baseball in '06 as part of a ban on amphetamines. Under baseball's collectively-bargained drug policy, a team physician must send a drug prescription to Smith for his approval in order for a player to receive a TUE.

Expect criticism for Major League Baseball and the players' union, not so much for the slight increase from 103 to 106, but for the absence of decrease, as last January both the league and players' union pledged to Congress to assess why baseball players request medicines for ADHD at abnormally high rates. Dr. Gary Wadler, chairman of the committee that determines the banned-substances list for the World Anti-Doping Agency, has already called the '08 results "incredible" and "quite spectacular."

While the clinical link between amphetamines and baseball performance is less established than links between steroids, human growth hormone and performance, it is thought that amphetamines and similar substances improve the focus and concentration of players and also enhance their reaction time. Although coffee and energy drinks offer similar types of advantages, amphetamines, which are available through prescriptions, are more potent, more addictive, and more likely to trigger threatening side effects.

In defense of baseball and its players, it is unclear how many requests were rejected, either formally or informally, by team physicians or by Dr. Smith (who received approval power last year) between '06 and '08. Indeed, if the number of requests increased by a higher percentage than the number of approvals, then the increase in approvals would be far less notable. The only available information is that the number of new requests to Smith for TUE exemptions for ADHD drugs declined from 72 to 56 last year.

In addition, there may be viable clinical explanations that at least partially account for the precipitous rise in TUEs granted by baseball. Diagnostic challenges for physicians who treat persons claiming to have attention disorders may, for example, prove relevant: it may be scientifically difficult for physicians to separate legitimate from illegitimate cases of attention disorders, thus making it difficult for physicians to reject prescription requests.

It is also possible the increase connects to decreased stigma in acknowledging that one has an attention disorder and needs treatment for it. There is a long history of mental illnesses receiving less sympathy by the public and less protection by courts than physical illnesses, though as neuroscience has increasingly shown that mental illnesses are as much "physical" as physical illnesses, that gap has narrowed. Consequently, as more players apply for TUEs, less stigma may be attached to doing so, thus encouraging more players to apply.

It is also possible that the increase reflects mere coincidence, in that more and more players are simply suffering from attention disorders. Likewise, it could represent a rush to not miss out on a competitive advantage, in that some players may feel disadvantaged by not taking amphetamines while their teammates and competitors do.

Absent a viable explanation, however, suspicions will remain that some players are circumventing the policy to obtain otherwise prohibited amphetamines and that baseball has acquiesced to those players.

Will Congress get involved?

At this point, it appears unlikely, but there are two factors which suggest Congress might investigate.

First, the topic has already attracted congressional interest. In the January 2008 baseball hearings before Congress, U.S. Rep. John Tierney grilled commissioner Bud Selig and MLBPA executive director Donald Fehr over the increase in TUEs from '06 to '07. Although the subject matter was somewhat obscured by the spectacle of steroids allegations against star players, it received time. Plus, while Selig and Fehr pledged to find answers for the rise in TUEs and later modified the TUE request process, the increase in TUEs in '08 may disappoint Tierney and other congressional members.

Second, key members of Congress recently expressed dissatisfaction with athletes using TUEs. Earlier this month, U.S. Rep. Henry Waxman, the outgoing chairman of the House Committee on Oversight and Government Reform, cited "shadiness" in the manner in which professional wrestlers obtain TUEs from steroids testing. A hearing involving Major League Baseball and perhaps other leagues might offer a valuable opportunity to examine cognitive-enhancing drugs in sports, as such drugs are likely to become only more common in the years ahead.

On the other hand, Waxman reacted to Friday's news by stating, "But overall, I am pleased with the steps taken by MLB and the players' union to strengthen their drug testing program and eliminate the use of steroids and other performance-enhancing drugs."

Plus, baseball's testing protocols reflect collective bargaining, meaning both owners and players agreed to them through a formalized bargaining process. Courts and Congress usually refrain from interfering with collectively-bargained language in sports, both because of the law (collectively-bargained terms receive the "labor exemption" which largely precludes antitrust review of those terms) and because it is presumed that both bargaining units (i.e. the players and the owners) know more about their business arrangement than would government officials.

In addition, Congress may resist the temptation to conduct another round of high-profile baseball hearings during the current economic crisis. Such hearings may attract public rebuke as a reflecting a poor use of members' time.

SI.com legal analyst Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

 
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