NFL’s Owners Can’t Be Trusted: Upshaw : NFL Players’ Assn. Leader Says Drug Tests Aren’t Confidential

The issue of compulsory random drug testing, in general, and the James FitzPatrick case, in particular, has put the National Football League’s club owners on a collision course with their players, Gene Upshaw said Tuesday.

A former Raider All-Pro, Upshaw, now executive director of the NFL Players Assn., said:

“One of the big problems is that the owners can’t be trusted. They just can’t keep a secret. We had another case of this (last Friday) when the San Diego Chargers identified a draft choice as a drug case.

“The Chargers have damaged this young man’s life forever,” Upshaw said, referring to former USC tackle FitzPatrick. “If you stub your toe once--or if a chemist or somebody makes a test error--you’re branded for life.”

FitzPatrick was named in an Escondido newspaper. The owner of the Chargers, Alex Spanos, told Times Advocate columnist Jay Posner that the Los Angeles player tested positive for marijuana in New Orleans last January. Spanos said later that he thought his comments had been off the record.

Spanos’ public identification has aroused the NFLPA, which will fight the NFL this summer, Upshaw said, if Commissioner Pete Rozelle seeks to impose mandatory random drug testing, as Rozelle has said he intends to do.

Question: How do you fight the NFL? Will you call a strike?

Answer: No, this isn’t a strike issue. The players don’t have to strike. We’ll simply refuse to take spot tests.

Q: All NFL players will refuse?

A: Most will. There are always some players who have individual reasons of their own to go along with the owners. But when the (NFLPA) membership voted, more than 72% opposed spot checking.

Q: Why?

A: Confidentiality is the cornerstone of any drug-testing program, and the players are aware that the teams can’t keep a confidence. If Rozelle keeps on with this, we’re on a collision course. The players are just as opposed to drugs as the league is. We’ve recommended a strong (anti-drug) program. But random checking isn’t the American way. The American way is probable cause. It’s in the Fourth Amendment.

Q: Why would an innocent athlete decline to take a drug test?

A: One thing is that a false positive reading is possible for any number of reasons. The experts say flat out: Tests aren’t foolproof. Chemists make mistakes. Labeling errors are possible. (Nondrug) substances have given a drug-type reaction. Doctors make mistakes. There can be collusion between a medic and an owner. Or other kinds of collusion--or intentional abuse of (test reports). When the report is leaked, it’s the player who pays, guilty or innocent.

Q: Wouldn’t you agree that perfect justice can’t always be realized?

A: That’s true. But the way it works in drug cases, a positive identification--for any reason--puts the burden of proof on the player. When the report is leaked to the media, the player is guilty until proven innocent. That’s just the opposite of the American way.

Q: Don’t backup tests tend to clear up misunderstandings?

A: The fallout from any positive reading, true or false, is always there. When the owners talk about it, you have an element of doubt. The doubt is there forever. As I said, the problem is that sports (leaders) and medical people can’t be trusted. Just in the last four months, they’ve branded football players as drug users in four cases.

Q: What four cases?

A: The New England Patriots identified some of their players (after Super Bowl XX). The Chargers did it (Friday). Somebody in the NFL told the media that there were 50 drug users (among 300 college draft prospects) at the New Orleans combine camp. Then, after the draft, they told the media that two first-round choices, four second-round choices, two third-round choices, and many other players tested positive (at New Orleans).

Q: Most of those players haven’t been identified.

A: They haven’t been identified yet. The teams that drafted them have been identified. The media will go after the names. Our position is that the players have one immediate recourse. They should sue the doctors.

Q: On what charges?

A: Take the Charger player (FitzPatrick). When he was tested at New Orleans, it was under the supervision of a doctor. In America, the doctor-patient relationship is privileged. That privilege was breached. Legally, the doctors breached it. Not the Chargers. The doctors told on the patient. The patient should sue.

Q: The patient has agreed to submit to random testing by the Chargers from now on.

A: The NFL’s player-owner bargaining agreement says that the Chargers can’t force such a promise from a player. The clock starts ticking at the club’s mini-camp, not at the winter combine camp. (FitzPatrick) didn’t know his rights. He can’t give up his rights.

Q: As the players’ executive director, are you convinced that your union is doing all it can to fight drug abuse?

A: Absolutely. In some things we’ve gone farther than the league. The owners don’t mention steroids. We have agreed to drug tests at mini-camps, at training camps, and for probable cause. We favor strong penalties, big fines, banishment in some cases. We also think there’s been an overemphasis on cocaine and marijuana over alcohol, tobacco and steroids.

Q: What do you mean by overemphasis?

A: The biggest danger comes from tobacco and alcohol. Down the road, they’re the worst for athletes, and nonathletes too. I’m not putting down cocaine and marijuana. They’re terrible for your body. Awful. But the damage from tobacco and alcohol is wider spread. But the only thing you hear from the NFL is cocaine and marijuana. All they talk about is random testing for cocaine and marijuana.

Q: Isn’t legality the difference? Alcohol and tobacco can be legally sold and used in this country.

A: And are they ever sold and used. The NFL pretends they aren’t dangerous because they’re legal. Players, owners and NFL people smoke cigarettes openly. Half the clubs in the league distribute beer to their players on airplanes. The league isn’t concerned about players’ welfare down the road. Steroids, alcohol and cigarettes don’t do their real damage until a guy is older and long out of uniform.