BASEBALL AND PERFORMANCE-ENHANCING DRUGS

• First of all, when asked at that news conference if he would punish those players named, Selig stated that he would deal with those named on a “case-by-case basis.”  Allen Barra of the Wall Street Journal comments that “this position, along with Selig’s comments ‘[discipline] when [the violation] affects the integrity of the game,’ has been the classic fallback of every commissioner since Judge Kenesaw Mountain Landis, after the trial of the Black Sox players in 1921.”  But what exactly does that mean?  Selig affirmed that the ultimate decision about discipline remains with him, the Commissioner.  But consider these facts:

1. Nearly 60% of the named players are retired, the most famous being Roger Clemens.  Obviously, Selig has no power over them at all, other than denying them opportunity to work for major league baseball (MLB).
2. For those players who are still playing the game, any decisions that Selig makes are governed by the Basic Agreement negotiated in 2003 between MLB and the Major League Players Association.  The Agreement stipulates very specific evidence that is needed regarding substance abuse and subsequent punishment.  So, any of the charges against the players currently in the game must have been after 2003 or they cannot be punished.  Further, as Barra argues, “Since the Mitchell report is not a legal document, with what new powers is Commissioner Selig planning to take action?  And if he isn’t claiming new powers, what was the purpose of Sen. Mitchell’s report and MLB’s response to it?  If any of the active players named in the report are proved to be in violation of the Basic Agreement, they will be disciplined according to the existing rules, and the commissioner has nothing more to say until both sides agree to modify the existing agreement.” 
3. As Barra reports, even a legal novice examining the Mitchell report would conclude that there is simply not enough evidence to convince any arbitrator of the guilt of any player who has not already tested positive.  Some, if not most of the evidence, is hearsay.
4. It is also imperative to remember that Commissioner Selig’s powers are granted to him by his employers, the owners of all the baseball teams.  It is doubtful that these owners will be delighted with discipline decisions about their most valuable property—their players!
5. The Players Union refused to cooperate with Sen. Mitchell’s investigation because they believed that Selig was “trying to impose conditions on its members rather than work with the union to find effective solutions.”  To further exacerbate the relationship between MLB and the Players Union, the union was not shown a copy of the report until one hour before the news conference.

• Second, it would seem therefore that nothing significant will be done to those who used PEDs in MLB.  The Players Union will fight any disciplinary action.  Further, 60% of those named are retired.  Barra comments that “MLB’s real purpose in instigating the report was to convince Congress, the media and the public that it cares about the growing scandal of steroids.”  But how the broader use of PEDS in the sport will be dealt with is still very unclear.  In fact, it would seem that very little will be done.  This is a tragic scandal for MLB.  These players named in the report are some of the greatest heroes of modern baseball.  But they cheated!  The scandal is pervasive and systemic in modern baseball.  It colors most of the major records established over the last decade and it affects the overall integrity of the game itself.  For someone like me who absolutely loves baseball, this is a very sad day!!

See Allen Barra’s very helpful article in the Wall Street Journal (15-16 December 2007).