Cushing's Second Test Positive, Not First
The cloak of secrecy surrounding Brian Cushing's positive test for hCG and his appeal to the NFL was orchestrated by Harvey Steinberg, his Denver-based attorney. Steinberg, who has won appeals for NFL players, was brought in by Cushing's agent, Tom Condon. It turns out the Texans linebacker had two drug tests several weeks apart, according to Steinberg, and not the one test that has been reported since the NFL announced his four-game suspension May 7 for violating the policy against performance-enhancing substances. HCG is banned by the NFL because it can be used as a masking agent for steroids. It also is produced in pregnant women and can be used for weight loss and for the aging process. Small amounts can be produced naturally in the body, including in the pituitary gland of both men and women.
Steinberg told Cushing not to tell anyone about the tests, appeal or trips to hospitals in San Diego, Denver and Houston for tests to find out why his body was naturally producing hCG (human chorionic gonadotropin). I specifically said, I don't want this to be revealed to anyone,'  Steinberg said Friday. Look at the firestorm that's occurred. If we had prevailed as I felt we would and I was surprised we didn't then the NFL was duty bound not to release any information, and none of this would have been public. Everybody was obligated to keep it quiet.
They kept it quiet from the first notification of a positive test in October until the NFL announcement. Meanwhile, Steinberg based a big part of his appeal on Cushing's enlarged pituitary gland and a surgical procedure he had while at USC. He had a pre-existing medical condition (involving an enlarged pituitary gland) that was consistent with the natural production of hCG in males, Steinberg said. They came out in the hearing, and they were documented. We learned that he had a particular medical condition that was consistent with natural production in the body of this banned substance. We felt with the low levels at which it tested was also consistent with natural production. We did research and found out that his was a plausible explanation. We consulted an expert who suggested further testing. We became convinced that this was a situation that was naturally produced.
Two samples per test
Steinberg was brought in by Condon after Cushing learned in October he had failed the first test taken in September. Steinberg explained the process. For every test, there are two samples taken A' bottle and B' bottle, Steinberg said. If A' bottle tests positive, then B' bottle is tested by a separate lab. The A' bottle was barely over the discernible and legal limit pursuant to the policy. The B' bottle got tested, and we were notified it was below the limit. As a result, it was deemed to be a negative test.
Then Cushing submitted to another test several weeks later, according to Steinberg. Both samples came back positive. When we inquired about the level (of the new A' bottle), we were told it was about the same as the original A' bottle, the first test, Steinberg said. We were operating under the premise that we may well get a negative B' bottle, which would render this test negative as well. When that B' bottle came back positive, then it became a positive test.
Cushing was advised by the league he would be suspended for four games.
We tried to discern why he tested positive and why were their two separate tests on two separate occasions for this particular banned substance, Steinberg said. Armed with what he thought was medical confirmation and an expert, Steinberg had the hearing at the scouting combine in Indianapolis in February.
NFL experts disagree
We presented our case and our expert testimony, he said. Our expert said his low levels were consistent with natural production. There were two NFL experts at the hearing. During cross-examination, I asked the first expert and the second expert was in the room and would have heard his testimony and he said, As head of toxicology for the NFL, there's no way a player can naturally create this substance in their body. I've of the opinion that Mr. Cushing had to inject it.' The second expert for the NFL testified, No, I do believe that it can be produced naturally, and I do believe there's scientific confirmation that a male can naturally produce it.' At that point, I thought this hearing is over. I should win this hearing. Our feeling was that if the two NFL experts are in disagreement, how does the NFL sustain the suspension when their own experts are in disagreement?
WTF!!!!!!
