MLB Class Action Lawsuit Claims Drug Tests Are Based On ‘Junk Science’

UPDATE: On Sept. 2, 2020, the class action lawsuit against Major League Baseball by one of its players over a drug suspension has been dropped by the player.

A Washington Nationals catcher has filed a class action lawsuit accusing Major League Baseball of using “junk science” when it tests its players for performance-enhancing drugs.

Plaintiff Felipe “Tres” Barrera III claims he was suspended after his steroid use test came back with a false positive result.

Barrera maintains that while the intent of the MLB’s Joint Drug Prevention and Treatment Program (JDA) is to prevent players from having an unfair advantage through drug use, it also requires MLB to produce “accurate and reliable” tests.

“It was not meant to deprive Plaintiff from his rights, ability to make living, or to impugn his reputation and the reputation of others that have had to deal with inaccurate and unreliable testing,” the complaint states.

Barrera says he has been suspended for a minimum of 80 games, a long suspension given that the current season has been shortened to 60 games due to the pandemic and the fact that he had been set to make a 30-player roster.

However, Barrera believes his suspension to be unlawful.

According to the class action lawsuit, the JDA doesn’t punish players who test positive before employment. In addition, the JDA does not allow for discipline in a case where a positive test result’s accuracy or reliability is called into question.

Barrera believes his exposure may have occurred before his employment and “was so minimally low that it did not — and could not — have provided him with any performance enhancing benefit whatsoever.”

Barrera was first drug tested under the JDA in August 2016, according to the MLB class action lawsuit. He has been tested a total of nine times, and each test except the most recent yielded a negative result.

Expert witness Dr. Daniel Eichner, who had previously testified at similar proceedings for athletes, told an arbitration panel that M3, the long-term metabolite of dehydrochlormethyltestosterone (DHCMT), appeared to be “highly unusual among oral-based steroids in that it can remain in the body and be excreted for years,” according to the complaint. He also testified that the metabolite “can be sequestered in the body in a location that has not yet been found,” meaning it is only sometimes detectable in urine.

Yet Eichner continues to offer MLB “conclusive statements” that differ from what the science shows or does not show, the MLB class action lawsuit states. He has said it is unknown why M3’s behavior is atypical regarding the size or repetition of the exposure, or how recently the exposure occurred. 

Eichner’s opinion in front of the panel was that Barrera likely was exposed at some point between his last negative test, which took place in July 2019 and January 2020, based partly on the fact that the Players Association had asked him to examine all of Barrera’s negative minor league tests, none of which showed the presence of M3.

No other evidence indicated exposure before Barrera’s first test, the MLB class action lawsuit says, and Barrera claims he was not allowed to select or present an expert.

The arbitration panel ultimately determined Barrera had not satisfied the burden of proof to show the test for the M3 metabolite was unreliable or inaccurate, the class action lawsuit states. But the panel did conclude there wasn’t sufficient evidence to prove otherwise based on other athletes’ testing histories.

“The Arbitration Panel made its decision based solely off the contradictory opinions of Dr. Eichner, and failed to take Plaintiff’s objective evidence regarding the inaccuracy and unreliability of DHCMT testing into consideration,” the complaint states.

In addition to MLB, Eichner has been named as a defendant in the class action lawsuit, as have the Office of the Commissioner of Baseball; Sports Medicine Research and Testing Laboratory; and Laboratoire De Controle Du Dopage.

The proposed Class includes any Major or Minor League Baseball player who is bound to the JDA and the collective bargaining agreement and was suspended because of a positive test result for DHCMT or oral turinabol since MLB began testing for turinabol.

The plaintiff is asking the Court to vacate the arbitration decision and enjoin MLB from executing Barrera’s 80-game suspension. He also requests a hearing at which MLB will appear and for damages; prejudgment and post-judgment interest at the maximum allowable rate; attorneys’ fees; court costs; and any further relief deemed proper by the Court. 

Do you think MLB’s testing of athletes is fair? Give us your opinion in the comments.

The plaintiffs are represented by Alfonso Kennard Jr. of Eddie Hodges Jr.of Kennard Law PC; Jaime Peña of Peña Aleczander; and Robert Casas Steindel.

The MLB Drug Test Class Action Lawsuit is Felipe “Tres” Barrera III, et al. v. Major League Baseball, Case No. 7:20-cv-00198, in U.S. District Court for the Southern District of Texas, McAllen Division.

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