Major League Baseball, according to documents prepared by the Office of the Commissioner of Baseball’s Labor Relations Department, is facing the possibility of an arbitration decision that would undermine the sport’s policy on banned stimulants, a policy that was adopted in 2005 under heavy pressure from Congress and the public. The decision would, according to the document, “create a loophole in the Program by allowing Players to take prohibited Stimulants but feign ignorance regarding the pills they were taking.”

At issue is a grievance filed by a veteran relief pitcher who tested positive for the banned stimulant phentermine on April 29, 2006. The player’s urine sample, according the documents, contained 5.2 micrograms of phentermine per milliliter, more than 10 times the level allowed by baseball’s Joint Drug Prevention and Treatment Program. He was notified of the positive test on May 23 of last year, and on June 5, he filed a grievance with the commissioner’s office, which denied it. On June 14, he appealed the denial of the grievance, and on March 13, 2007, this appeal was denied. On March 15 and April 24, hearings were held before an arbitration panel; the documents obtained by The New York Sun are dated June 5 and were submitted to this panel requesting a denial of the grievance. Paul Mifsud, an attorney with the commissioner’s office, declined comment on the matter but did confirm that the resolution of the grievance is still pending.

The positive test is not, according to the documents, in dispute; at issue is the player’s claim that he took the banned stimulant unwittingly. According to a statement cited by baseball’s lawyers, the player claims that while eating out with his family at a restaurant, he became violently ill and drove home, where he suffered from vomiting and diarrhea. He then, he says, asked his wife for Phenergan, a motion sickness medicine for which she had a prescription. She told him to take “the little white pill” from her pill case; he claims that he felt for the pills in a “pretty dark bedroom,” took a pill to his bathroom, and swallowed it without looking at it, and that after testing positive for phentermine, he realized he must have taken one of her prescription diet pills. (Lindsey Hunter, a player with the NBA’s Detroit Pistons, offered a similar explanation after being suspended for 10 games earlier this year after testing positive for phentermine.)

Baseball’s lawyers argue that the player’s story falls short of the standard set in 2005, when Rafael Palmeiro’s grievance that he had accidentally taken banned steroids was denied. This standard sets a burden on the player, who must prove that banned substances were present in his urine “due neither to his fault nor his negligence.” The lawyers cite the player’s confessed lack of knowledge of baseball’s policy on banned substances, quoting his statement that “I don’t take the banned substances, so I never felt like I needed to read the handbook” on the program. They also cite a statement by Dr. Gary Green, an expert on drug testing who consults for baseball, and found the idea of a player testing positive with 10 times the allowed amount of phentermine 36 hours after taking a single pill to be “very unlikely.”

“If this Panel were to uphold [the player’s] grievance based on his own account of his conduct,” the document concludes, “the Panel would open the floodgates for Players subject to the Program to assert that they mistakenly took their wives’ ‘diet pills’ when taking an unlawful, prohibited Stimulant under the Program.”

Without a full range of documents relating to this grievance, including the Major League Baseball Players Association’s arguments to the panel, the validity of baseball’s arguments is more than open to question, which is why the Sun is withholding the name of the player who filed the grievance. (His representatives did not return a call for comment.) Still, the information in the document points out several problems baseball faces as it attempts to emplace structures to deal with the sport’s ongoing drug scandals, among them a lack of transparency and the lax attitudes of players, who are often unaware of the details of the drug policies their union has negotiated on their behalf.

The murkiness of baseball’s stimulant policy, which has not been made available to the public, is an inevitable consequence of the concern of players for their privacy. Earlier this month, Detroit’s Neifi Perez became the first player to be penalized for stimulants under the terms of the policy, and he is currently serving a 25-game suspension. What many don’t realize, though, is that a failure merely places the player on what is called an administrative track, subjecting him to 12 random tests over a calendar year dated from the initial test and counseling. A second failure subjects the player to a 25-game suspension, a third failure nets an 80-game suspension, and a fourth sees the player banned for life.

There have been an unknown but significant number of positive tests since the program was instituted. As Mark Zeigler of the San Diego Union-Tribune reported in May, the World Anti-Doping Agency-affiliated laboratory that baseball uses is required to file a report on the number of positive tests it processes to maintain its WADA accreditation. In 2005, before baseball began using the lab to test samples for banned stimulants, it reported 20 positive tests; last year, it reported 104. (Barry Bonds and Jason Giambi are reportedly among those who have failed the test.) At least some of those positive tests would likely not be considered outright failures, because players can file for a therapeutic use exemption if they have a legitimate medical need for banned substances, several of which can be used to treat conditions such as attention deficit disorders; the rigorousness of the standards for exemptions, though, is unknown.

For the veteran relief pitcher, the import of the grievance relates to which track he will be considered to have been on over the year following his positive test. If the grievance is upheld, he will, in a sense, not have failed the test; a second positive would not result in public disclosure of his name or an unpaid suspension. For baseball, the significance is that if the grievance is upheld, a precedent will have been set allowing any player with an even remotely plausible explanation for a positive test an initial out, damaging the credibility of its drug program at a time when Congress and the public are still watching the sport with a wary eye.

tmarchman@nysun.com