August 4, 2020 – Texas Federal Court Says Nats Catcher Must Serve PED Suspension
A Texas federal judge has denied Washington Nationals catcher Felipe “Tres” Barrera’s application for a temporary restraining order and injunctive relief, meaning the player must continue serving his 80-game suspension for testing positive for performance-enhancing drugs.
United States District Judge Micaela Alvarez’s July 29 order denying Barrera’s request can be found here.
A proposed class action filed by a recently suspended Washington Nationals catcher alleges Major League Baseball utilizes “unreliable testing” and relies on “junk science” in testing for performance-enhancing drugs (PEDs).
The plaintiff, Washington Nationals catcher Felipe Barrera, claims his 80-game suspension handed down July 25 is unlawful given his drug test showed his exposure to Turinabol was “so minimally low” that it did not and could not have provided any performance-enhancing benefit. Moreover, Barrera alleges the arbitration award that suspended him is null and void given it violates his rights under MLB’s Collective Bargaining Agreement and Joint Drug Prevention and Treatment Program, which the 38-page complaint contests requires MLB to “provide and produce accurate and reliable tests” in addition to keeping PEDs out of the game.
According to the complaint, MLB’s Joint Drug Prevention and Treatment Program does not punish players who test positive for PEDs prior to employment with a team given a positive test could stem from a PED knowingly or unknowingly taken by a player years prior. Further, the program does not allow for a supposedly positive test to serve as the basis for discipline if “objective evidence calls into question” the accuracy or reliability of the test result, the plaintiff argues.
As the lawsuit tells it, testimony provided by Dr. Daniel Eichner, a defendant, has opened the door to “a plethora of uncertainty” with regard to the reliability of tests for Dehydrochlormethyltestosterone (DHCMT), or Oral Turinabol. The plaintiff alleges Dr. Eichner, “[t]o this day,” has not and cannot assure the player received any performance-enhancing benefit from the substance, or that the current testing for Turinabol is reliable. Still further, the case claims Dr. Eichner is “well aware” that other, non-prohibited substances can mimic in a player’s system the same metabolite as that created by DHCMT.
Nevertheless, Dr. Eichner “continues to peddle ‘junk science’ for the benefit of MLB,” the proposed class action alleges. In a footnote, the lawsuit says there exist no controlled studies involving humans as to where the DHCMT metabolite is sequestered in the body or how long it can stay in a person’s system.
“The evidence is all theoretical, yet the evidence has caused MLB players to suffer damages based on unreliable theories and inaccurate testing,” the footnote, found on page two of the suit, reads. “This theoretical ‘junk science’ has caused many innocent players’ careers to be tainted.”
Barrera alleges the arbitrator who handed down the 80-game suspension “wholly ignored, and did not properly consider,” evidence that demonstrates a “deviation” from MLB’s Joint Drug Prevention and Treatment Program and Collective Bargaining Agreement given the results of the drug test at issue are “unreliable—even to the casual observer.”
“The process is clearly a sham,” the case claims, arguing the arbitrator’s reasoning behind the suspension—which would cover all of the pandemic-shortened 2020 season and part of the 2021 season—was based on “palpably faulty and contradictory” testimony presented by Dr. Eichner.
According to the complaint, Barrera was tested for PEDs eight times since August 2016, with every result negative except for one done on January 4, 2020 that showed a positive DHCMT result at 10 picograms.
The lawsuit asserts Barrera, a 2016 sixth-round amateur draft pick, is entitled to an emergency temporary restraining order and injunction prohibiting MLB and the Office of the Commissioner of Baseball from enforcing his 80-game suspension or otherwise interfering with his status as a member of the Washington Nationals.
After the suspension was handed down, Barrera apologized on Twitter to the Nationals organization, teammates, fans and his family, and asserted he would “continue to work to find answers to the many questions that remain surrounding this drug to clear my name.” Barrera’s representation told Law360 that MLB knows it’s “supposed to provide reliable testing under its CBA and JDA, and they’re not doing that.”
“Innocent players are having their reputations impacted and their careers killed,” the attorney said.
The lawsuit looks to represent any major or minor league baseball player, bound by the league’s Joint Drug Prevention and Treatment Program and Collective Bargaining Agreement, who was suspended by Major League Baseball based on a positive test for Oral Turbinol since MLB began testing for the substance.