A conversation with Richard Sherman's attorney is a reminder that the process for testing NFL players for PED violations could stand some improvement.
Seattle Seahawks cornerback Richard Sherman won his appeal of a four-game suspension for a PED violation on Thursday with an arbitrator ruling on irregularities in the testing process as well as the failure of the collector to report the irregularities in the process.
Broken cups, mishandled samples, and inconsistent reporting put Sherman's career and reputation on the line while exposing a less-than-perfect testing process with a wide range for human error. As Robert B. Wheel pointed out, Sherman's appeal win was a reminder that process matters more than results when testing players for performance enhancing substances.
SB Nation spoke to Sherman's attorney, Maurice Suh, about Sherman's appeal and the problems in the testing process. Suh is a partner in the Los Angeles office of Gibson, Dunn & Crutcher, works with the NFLPA, and has also represented cyclist Floyd Landis. The details of that conversation are presented below:
SB Nation: Tell us about the appeal process.
Suh: Let me start off by saying that although it's called an appeal, there was no hearing beforehand. It was the first and only actual sort of arbitration hearing on the decision by the management council of the NFL. It's called an appeal, but a lot of times when there's an appeal there was some sort of arbitration and then you appeal to that and you get another hearing. There was none of that.
SB Nation: What about the testing process that Mr. Sherman went through? How did that lead to overturning his suspension?
Suh: Number one, there was a violation of the specific rules that relate to the handling of the sample during collection. Number two, the violation of the rule, which is embedded in the steroid policy between the NFL and the NFLPA, that the same technician should not handle or process the sample for the "A" and the "B" sample.
When there's a positive sample, the test results are duplicated between the 'A' and the 'B.' If the 'A' is negative, they don't do it again, but if the 'A' is positive they test the 'B' in order to make sure they have accurate results. One of the rules under the steroid policy is that the same laboratory technician can't handle the testing of the 'A' and the 'B.'
There were a number of collection rules that were violated. Number one, Richard Sherman was not able to pick the cup that he used to collect the sample. Number two, the collector should have watched him the whole time; he didn't. Number three, the data put on the collection form was inaccurate. Number four, after the sample was collected it should have been split - meaning split into the 'A' and the 'B' - by Mr. Sherman himself; it was not.
All of these rules, all of which were broken, were rules which we litigated as part of the collection process. Basically what the NFL said was that the collector did follow the rules. So that part of the case came down to a credibility determination between Mr. Sherman and the collector.
I had the opportunity to cross examine the collector at great length about what he said, and his story simply didn't make sense and didn't hang together and was not credible. Ultimately, the arbitrator agreed with us and found the collector not credible and Mr. Sherman credible.
Once the collection rules were violated, it was the job of the NFL management council to then prove that there was no harm to the sample. The arbitrator decided that you couldn't make that determination based on the evidence that was provided.
The second issue was that we proved the same technician was involved in the handling of both samples. The only thing the NFL said was that is was not practical or possible to have the same technician do it. That's not accurate at all. That used to be the way all the WADA laboratories handled it, and that was a WADA laboratory. As you saw from the opinion, that was not the main point of the decision, but I think that certainly factored into it.
SB Nation: How did you discover the irregularities?
Suh: Some through the cross, some through the Mr. Sherman's experience.
Time in and time out on that sample collected was supposedly five minutes. But during that time, we've got all these problems with the cracked cup and everything else. One of our points was that's just not accurate.
You can't take off your shirt, remove your pants provide the sample, have the cracked cup thing, transfer the sample over, do all the paper work, that's just not going to get done in five minutes. That's just another example of things that were done improperly.
When you do these things it's very important to follow the specific rules of protocol, and they just weren't followed.
SB Nation: Did it raise a red flag at the time?
Suh: Of course it did. But he'd never been through this whole process before, so he was just relying on the collector to do his job. That's the reason why the collector should be held to a reasonably high standard. It's not really incumbent upon the player. Players don't know; they come in and do what they're told. In fact, if they don't do what they're told, they'll be held to be in violation of the rule.
SB Nation: Have you handled a case like this before?
Suh: I've handled a number of sports cases before. I haven't dealt specifically with a cracked cup issue. One thing to remember is that laboratories, like everyone else, make mistakes. When they make mistakes, they should be held accountable for their mistakes.
Many times it's just automatically presumed that the athlete is going to lose. I think in the history of these cases in the NFL, the athlete has almost routinely lost.
We're certainly very pleased with these results.
SB Nation: Is there room for improvement in how players are tested?
Suh: There's a lot of room for improvement. We are seeking to improve the process to make it clearer, make the rules more definite.
The NFLPA wants the players to abide by the rules, but the NFLPA wants it clear, understandable and specific. We want everybody - the players, the collectors, the laboratories - to abide by them. That's all we're asking for is an even application of the rules that are clear. We don't really have that yet. The NFLPA has really been taking the lead on that.