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The Brian Cushing Revote: Defending the Associated Press

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Last week, Brian Cushing became the first player in NFL history to win the Associated Press Defensive Rookie of the Year Award...twice. Cushing won the award back in January with 39 of the possible 50 votes, but the AP called for a revote after it was recently disclosed that Cushing had tested positive at the beginning of the NFL season for hCG, a fertility drug banned by NFL Policy on Anabolic Steroids and Related Substances (the same drug that led to Manny Ramirez?s 50-game suspension by MLB). After the revote, Cushing won the award again, this time with a total of 18votes.

The revote has caused quite a stir and raises a lot of interesting issues: Why was Cushing allowed to play for the entire season after he tested positive? Is the NFL drug policy ineffective? Was Cushing?s defiant?and, at times, unusual? denial the best public relations move? What is http://profootballtalk.nbcsports.com/2010/05/16/the-last-word-possibly-on-the-cushing-case/? Should the AP have held a revote? Should Cushing have been disqualified from the revote? Why did 18 members of the media (the ?Cushing 18?) re-vote for Cushing? Why did one voter change his vote to Cushing in the revote? Did the Cushing 18 send the wrong message if they voted for Cushing as a protest against the AP?s decision to hold a revote?

Much of the discussion has focused on criticizing Cushing, the NFL, the AP, and the Cushing 18, and I do not want to pile on these attacks. Instead, over at the Huffington Post, I have a new column up that defends the AP?s decision to hold a revote. Later in the week, I will have a post up defending the NFL and its drug policy. Here?s an excerpt of the defense of the AP:

Why the opposition to allowing a revote to strip a player of an award when we discover--well after the season has ended--that the player achieved the award while using a banned substance? Is this really any different than the International Olympic Committee ("IOC") stripping an athlete of a medal when it discovers--well after the games have ended--that the athlete was doping during the competition? Or the NCAA taking away wins or national championships from a team when it discovers--well after the season has ended--that one of the players on the team was ineligible?
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Will this precedent open the door to re-votes in the future? Perhaps, but why is that a bad thing? If the concern is that we'll never have any finality, then we can institute a statute of limitations--all awards are final unless challenged within 3 years. But, don't we want the ability to strip athletes of awards and achievements if we later learn that they earned them while using performance-enhancing (or related) substances? The AP's process may not have been perfect, but we can protest an imperfect process in ways that don't honor those who use banned substances.

You can find the full column here.

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Full post as published by Sports Law Blog on May 17, 2010 (boomark / email).