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After delving through several parts of the CBA that were a little dry, we’re getting into the weeds a bit with more substantive areas.

Today we tackle a meaty area: Article 47: Performance Enhancing Substances Program.

Program and committee

The NHL and NHLPA form, per Section 47.2, a Performance Enhancing Substances Program, administered by a Program Committee (per Section 47.1). Like every other CBA committee, it’s comprised of an equal number of NHL and NHLPA representatives, plus two consulting doctors (one nominated by each party).

The committee meets every year before Sept. 1 to review the program and make any tweaks necessary for the coming season. Basically, they’re responsible for reviewing every part of the program – sampling, testing, education, the banned substances list, therapeutic use exemptions, HGH testing protocols, and sample and record retention or destruction.

Why does the program exist?

Well, ’cause drugs are bad, folks. The scope is two-fold:

  • Testing for performance-enhancing drugs to ensure a level playing field.
  • Testing for drugs of abuse to ensure player health and wellness.

The program works though a combination of educational initiatives and testing.

Let’s talk testing!

Every player who has gone through a program orientation session will be tested as follows on non game days:

  • Everybody gets tested in training camp (“team-wide, no-notice testing”)
  • Everybody gets a round of team-wide no-notice testing at some point during the season
  • Individual players will also be randomly tested during the season

(So you’re looking at two or three random tests for a player during the season.)

In addition, up to 60 random tests will be conducted during the off-season.

There’s also Reasonable Cause testing, where a player can be selected for testing if either the league or the NHLPA has reasonable cause to suspect they’ve used a prohibited substance.

A positive test is one that has been verified by program doctors and doesn’t have a good cause for excusal under the terms of the program.

Positive test penalties

  • For the first positive test, a player will be suspended for 20 games without pay
  • For the second positive test, a player will be suspended for 60 games without pay
  • For the third positive test, a player will be permanently suspended (though they can reapply for reinstatement after two years)

Positive test procedures

Okay, so there’s a test and something’s flagged as a possible positive. What happens?

  • First, the program doctors notify the player of an “adverse analytical finding.” The NHL or NHLPA can be on this call.
  • The player is allowed to provide an “alternative medical explanation” for the testing finding. The program doctors will examine any explanation they’re given. If it checks out, the process ends with no further action and the player will be deemed to not have tested positive.
  • If there’s no explanation given, or the one given doesn’t pass muster, the B sample is tested. (For those unfamiliar, the testing material is split into two samples and they’re tested separately to avoid testing error.) The B sample will be tested within five days of the initial phone call to the player. If the B sample is negative, the entire process ends and the player is deemed to not have tested positive. If the B sample is positive, the process moves along.
  • The next step is potential appeals. Within 48 hours of a positive B sample result, the NHLPA can file a grievance appeal. The appeal hearing must begin within 9 days of the filing, must proceed on back-to-back days until completed, and the independent arbitrator must rule within six days of the hearing transcript being received. A player filing an appeal cannot be suspended until the final ruling.
  • The player can appeal based on a therapeutic use exemption, a collection error, a testing error, or argue that they cannot ascertain how the banned substance entered their body. If the appeal is successful, the player is deemed to not have tested positive.

For the curious, a therapeutic use exemption is basically getting a doctor to give you a note specifying a medical reason why you need to take a banned substance.

Confidentiality

When does a suspension get announced by the league? If the arbitrator confirms it via the appeal process, or if no grievance appeal is filed, only then will it be announced. (If there is an appeal, you’re looking at close to a month from the initial test result depending on lab speed and the complexity of the appeal.)

While a player is seemingly under no obligation to disclose a potential positive test to his club during the appeal process, if the player is traded between the initial potential test disclosure and the end of the appeals process, the acquiring team can file a grievance with the league and the transaction can potentially be nullified. (That’s up to the arbitrator to decide.)

A brief history

Under this CBA, six players have been suspended for test failures:

  • Valentin Zykov (Vegas), 2019-20
  • Nate Schmidt (Vegas), 2018-19
  • Shawn Horcoff (Anaheim), 2015-16
  • Jarred Tinordi (Arizona), 2015-16
  • Zenon Konopka (Buffalo), 2014-15
  • Carter Ashton (Toronto), 2014-15

If we throw out 2012-13 as a partial season and just look at the 2013-20 period, that’s seven seasons. 23 players on NHL rosters at any given time, times 30 NHL teams (plus Vegas for three seasons), times two tests per players, times seven seasons. That’s 9,750 tests, and that’s ignoring the random swath of individual player tests in-season and any off-season testing.

Six players suspended under this CBA results in a 0.062% suspension rate.