Phillies’ Romero says he was victimized

By David Murphy
Updated: January 8, 2009

PHILADELPHIA — There seems to be one observation on which everyone can agree: J.C. Romero is not the type of culprit who Major League Baseball hoped to ensnare in its new drug policy.

Nobody has accused him of knowingly using a performance-enhancing drug. Nobody has accused him of shooting steroids into his buttocks. Nobody has accused him of importing human growth hormone from Mexico.

All sides — the league, the Phillies organization and the player — seem to have the same understanding of the basics: Romero walked into a nutritional store in Cherry Hill, purchased a legal supplement called 6-OXO, and unwittingly ingested a chemical compound that urinalysis revealed to have contained the infamous steroid precursor androstenedione.

At this point in the woods, the road diverges.

Romero claims he shouldn’t be held responsible for a substance that wasn’t listed as an ingredient on the label. Major League Baseball claims it has gone to great lengths to make its players well aware of the dangers of ingesting legal, over-the-counter supplements that baseball hasn’t approved.

The Phillies, muted by the thick cloak of confidentiality that hangs over such proceedings, can’t really claim anything, other than their dual support of Romero and baseball’s decision to suspend him 50 games.

And in the midst of it all continues to lurk what some believe is the real boogeyman: an unregulated supplement industry and its dogged pursuit of making athletes bigger, faster and stronger.

First, to be clear: Romero will be suspended 50 games. He will end up forfeiting approximately $1.25 million in salary. Neither the player nor the Phillies organization sees any other possibility. True, the possibility of a lawsuit exists.

Romero’s agent, Dan Lozano, was unavailable for comment yesterday. But the agent for Yankees pitcher Sergio Mitre, who also was suspended for 50 games Tuesday because of an issue with a supplement, did not rule out a lawsuit for his client.

Said Paul Cobbe, who represents Mitre and is well aware of the Romero case: “We’re pursuing all available legal remedies on this to make up for the financial and reputation hit that Sergio is suffering.”

But while Mitre and Romero might have the option of pursuing recourse through the civil courts, their first 50 games of 2009 are all but over.

Under the Joint Drug Agreement collectively bargained by MLB and the players association, Romero already has exhausted his options. He failed drug tests in August and September, filed a grievance and appeared before an arbitrator, who upheld the suspension.

While Romero seems resigned to his fate, he also has protested vehemently, even hiring a public relations firm whose Web site boasts of its proficiency in “crisis management.” In interviews granted to and the Inquirer earlier this week, the lefthander portrayed himself as an unwitting victim. To some, the facts of the case might support such a contention.

Romero purchased a legal, over-the-counter supplement. The label of that supplement did not list any ingredients that were banned under the MLB drug policy.

Although a Sept. 19 urine test revealed the banned steroid precursor androstenedione, one source familiar with the case said the amount of the substance found was well below any level that would enhance an athlete’s performance. Romero stopped using the supplement immediately, and — according to — passed a subsequent drug test.

“Basically, I am being punished for not having a chemistry lab in my house to test everything I put in my body, because reading the ingredients on a label is no longer good enough,” Romero said in a statement.

“I am all for catching the guys that cheat and punishing them. But I feel like I’m the victim of a system where a player like me is punished because other players before me have blatantly broken the rules.”

But, just as strongly, baseball disagrees.

To understand Romero’s situation, one must first backtrack 15 years, when Congress passed the Dietary Supplement Health and Education Act of 1994 (DSHEA), which limited the ability of the Food and Drug Administration to regulate vitamins and supplements. The FDA has little control over a supplement’s effectiveness, or the ingredients that are included in the supplement.

“To put anything out on the market as a dietary supplement they just have to say that they don’t have any reason to believe it is unsafe,” said Philip Wenger, an associate professor of pharmacy at the St. Louis College of Pharmacy. “They don’t have to prove that it is safe, they don’t have to prove that it works or that it does anything that they say.”

Rob Manfred is well aware of DSHEA. As Major League Baseball’s executive vice president in charge of labor relations and human resources, he plays a pivotal role in the sport’s fight against performance-enhancing drugs. In 2004, he and commissioner Bud Selig authored an article in the Stanford Law and Policy Review that examined the problems with the supplement industry since DSHEA.

Manfred uses this article to emphasize that the league has long warned its players about over-the-counter supplements, and that Romero easily could have avoided his current predicament.

“I think it’s important for you to appreciate that Major League Baseball has consistently educated players that OTC supplements carry a risk with them,” Manfred said, “a risk for testing positive for a performance-enhancing drug.”

Romero has claimed that he was told otherwise, and that he followed all the guidelines set forth by the MLB Players Association with regard to supplements. While the MLBPA strongly condemned the suspensions of Romero and Mitre, they also released a carefully worded statement that took issue with the suggestion that they misled players about supplements.

“Some press stories have stated that the Association advised players that the particular supplement J.C. took was safe,” the statement said. “Others have suggested that the Association knew, in advance of the positive tests, that this supplement contained a banned substance. Neither is accurate. The Association knew nothing about the particular supplements involved here prior to learning of these positive results . . .

“In our view, J.C. is being unfairly punished because a supplement he purchased in a retail store contained a minute trace of a banned substance.”

Regardless of the actions of the union, Manfred said baseball takes great care to guard against the situation Romero currently faces. Each spring, players are shown a DVD that spells out the dangers of OTC supplements.

They are given a list of 12 manufacturers that have submitted products that have been tested and approved. They are provided with both a Web site and a 1-800 hotline that answers questions about specific substances.

In fact, problems with 6-OXO are not new. Back in 2006, a team of Dutch scientists published a story in the Journal of Steroid Biochemistry & Molecular Biology that said testing had revealed traces of andro in the product.

Over the course of last season, several players called the hotline about 6-OXO and were informed that the product was not in compliance with the drug policy, Manfred said.

Once Romero tested positive, the league had little choice but to proceed. Romero filed a grievance, leading to a secret arbitration hearing in the opening days of the World Series that even then-Phillies assistant general manager Ruben Amaro says he was unaware of. The Joint Drug Agreement required that the hearing happen within 10 days of the grievance.

Romero has said publicly that MLB offered him a reduced suspension of 25 games that would start at the beginning of next season if he admitted guilt.

Manfred denied that, saying the offer was a 25-game suspension that would include the World Series. Manfred said the offer was made in an effort to avoid an arbitration hearing conflicting with the World Series.

Romero declined the agreement, won two games for the Phillies against Tampa Bay and then ultimately lost his appeal.

“The commissioner has an obligation to impose a 50-game mandatory penalty when we have a positive test,” Manfred said. “He did that. We defended that disciplinary action in arbitration and, say what you will, the arbitrator upheld the discipline. The arbitrator concluded this discipline was appropriate.”

Romero, obviously, disagrees, even if the letter of the law was upheld. He tested positive back in 2006, but because the positive result was caused by a prescribed fertility drug, he was not suspended.

“The heart of this case is that there is an expectation that as professional athletes that you need to be held to a different standard,” said Cobbe, Mitre’s agent.

“I understand that and Sergio understands that, but it doesn’t take away the sting that if I was injecting myself with growth hormone I got from Mexico or if I bought something off the shelf at GNC, the punishment is the same.”