Congress' Decision to Subpoena Former Baseball Players to Testify About Steroid Use:
Why The Hearings Are Not Only Perfectly Legal, But Also a Good Idea

By EDWARD LAZARUS

Thursday, Mar. 17, 2005

If you are - as I am - a devotee of sports talk radio, then you have been bombarded this week with criticism of Congress' decision to subpoena a number of current and former baseball players to testify about steroid use. Only discussion of the NCAA basketball championships has vied for prominence with the steroid subpoena story.

Ex-jocks with microphones have joined with the apoplectic representatives of major league baseball and the player's union to set forth a long list of reasons to oppose the congressional inquiry. We are told that Congress has no legal authority to conduct this inquiry, that it violates player's privacy rights, that it will impede ongoing criminal investigations, and that it is nothing more than political grandstanding allowing a bunch of opportunistic politicians to gain advantage by positioning themselves as anti-drug.

I just don't get it. Why would anyone - especially people genuinely interested in sports - be opposed to the congressional hearings slated to start today?

As I will explain, the legal arguments against the subpoenaing of ballplayers are nothing more than makeweights. And the policy arguments are not much better.

Suppose it's true that, as critics charge, some elected officials are acting out of selfish motivation. Even so, it's surely a worthwhile expenditure of some congressional resources to shed light on a key question: Is the multi-billion dollar baseball industry rife with steroid use - an activity that not only is against the rules, but also has the effect of perpetrating a fraud on millions of fans who want to watch genuine competition based on skills that come from talent and practice, not from illicit drug-taking.

Congress' Subpoenas And Hearings Are Perfectly Legal, Contrary to MLB Claims

When the congressional subpoenas were first announced, Stanley Brand -- the Washington, D.C. attorney representing Major League Baseball and the players -- challenged the jurisdiction of the Government Reform Committee to conduct its proposed hearings. But this was a desperate defense: Brand's argument had no legal merit.

The Government Reform Committee is the principal investigative committee of the House. It possesses oversight jurisdiction to conduct investigations of any matter falling under the purview of the legislature. Without question, the issue of steroids in baseball qualifies as a matter within the power of Congress to oversee and regulate. After all, the use of performance enhancing drugs is governed by federal statute, specifically the Federal Controlled Substances Act. Thus, it is simply beyond cavil that steroid use in baseball is within the purview of the Government Reform Committee.

For those who remain skeptical of this legal hook for the hearings, it's worth remembering, too, that baseball is also a huge national and international business. Under the Constitution's Commerce Clause, then Congress has ample jurisdiction to regulate baseball. Indeed, in the past, Congress has invoked this power to Major League Baseball's benefit, when it exempted the industry from the normal operation of federal antitrust law.

It's Not True that Congress' Hearings Will Undermine Ongoing Criminal Investigations

As a fallback, Brand also claimed that Congress, by subpoenaing current and former players, was going to undermine the ongoing criminal investigations into the use and distribution of steroids in several major sports. But that's not true, either.

It is true that, as Brand noted, past congressional hearings (and specifically the Iran-Contra hearings) have ended up subverting important criminal prosecutions (most notably Ollie North's). But this happened not simply because hearings were held, but also - and crucially --because Congress gave key hearing witnesses testimonial immunity, which meant that the criminal prosecutors could not make any use of what the witnesses had to say.

Once a witness was given immunity, prosecutors could not prosecute him unless they could show that, in fact, they had completely insulated their work from the revelations adduced by Congress. Otherwise, a prosecution would conflict with the immunity grant upon which the witness had depended when he spoke (and chose, by speaking, to waive his Fifth Amendment right against self-incrimination). Because prosecutors failed to make this showing, Oliver North, in particular, could not be prosecuted.

The current hearings, however, pose no risk of repeating past missteps. To begin with, the Committee either did not subpoena or excused the players most closely associated with the criminal prosecutions: Barry Bonds, Jason Giambi, and Gary Sheffield.

In addition, the Committee refused to grant anyone immunity, so the Iran-Contra analogy collapses at the start.

The Argument that Congress' Subpoenas Infringe Players' Privacy Is Unpersuasive

The argument that Congress' inquiry improperly compromises the privacy rights of the players is no more convincing that the claim that criminal prosecutions will be impeded. Actually, Congress has been reasonably solicitous of the players' legitimate privacy concerns. In particular, the Committee has permitted the League to black out the personal identifiers on the documents it has demanded.

Moreover, the privacy concern is overblown. No right to privacy protects a baseball player in his illegal use of controlled substances -- just as no right to privacy protects a common citizen in the use of illegal narcotics.

In legal jargon, you do not have a reasonable expectation of privacy when engaging in unlawful conduct - and, thus, it is no invasion of the right to privacy for a player to be asked about steroid use. (Again, they -like any witnesses subpoenaed by Congress -- may choose not to answer by invoking the Fifth Amendment privilege against self-incrimination. But that is another matter).

The Policy Arguments Against Congress' Subpoenas Don't Work Either

The real issue with the subpoenas - if there is any - thus must be one of policy, not law. But here, too, I am baffled by the critic's concerns.

I freely grant the following: The issue of steroid use is pretty small potatoes on the scale of national problems. The Committee members who pushed for hearings are motivated at least in part by a self-interested desire to score cheap political points by embracing the non-controversial platform of eliminating performance enhancing drugs in sports. And these same Committee members are particularly delighted to waive the anti-drug flag during photo ops featuring anti-drug sports icons like Boston Red Sox pitcher and World Series hero Curt Shilling.

Yet even accounting for these concerns, it seems clear that the hearings are still worthwhile. It is highly unlikely that the congressional hearings will provide a complete or even a nearly complete picture of steroid use in baseball. But by putting Commissioner Bud Selig, Mark McGwire, Sammy Sosa, Jose Canseco, and others under oath - and, thus, subjecting them to the criminal penalty of perjury if they lie - the hearings may well partially separate truth from fiction.

Were McGwire and Sosa juicing when they captivated the nation with their battle to set the all-time single-season home run record? Is Canseco telling the truth when he alleges doing steroids with various famous players? What did baseball management really know about the steroid problem -- given that some team general managers estimated a decade ago that perhaps 20% or more of all players were using steroids?

Three Worthy Goals the Congressional Hearings Can Help Achieve

The answers to these questions (and others) are worthy of congressional inquiry for at least three reasons:

First, the problem of steroid use is not remotely limited to professional athletes. High-schoolers in alarming numbers, at least 500,000 by recent report, have tried steroids; and steroid use is cropping up as early as Eighth Grade. Granted, exposing steroids in baseball will hardly solve this problem. But it may have some positive impact.

High school athletes take steroids because they think it will help them excel, and because they think they are just emulating the professionals in whose footsteps they seek to follow. If Congress helps clean up baseball and shames the ballplayers who have been cheating with steroids, then it will likely ameliorate the not insignificant problem of teenagers endangering their health to promote their athletic careers. That strikes me as a worthy goal for national elected officials to pursue.

Second, I think Congress has a stake in the integrity of baseball. If Sosa and McGwire were juicing, and if baseball has knowingly been turning a blind eye to rampant steroid use by its biggest stars, then collectively, they have been foisting an enormous consumer fraud on the public.

Baseball is a game of statistics. Fans endlessly compare the players from different eras as they set and break records in a progression that marks the advance of human athletic achievement.

Baseball, moreover, is sold to us on the basis of its rich statistical history and the records embodied in it. This year, for instance, there is the possibility, dangled before fans, that Bonds will break Hank Aaron's record of hitting 755 career home runs (once Bonds surpasses Babe Ruth's mark of 714).

But baseball's sales job will have amounted to a giant case of false advertising if Bonds' achievements or McGwire's or Sosa's (or those of others) is the product of a secret medicinal formula for cheating the past. This would make the accomplishments we pay money to see the product not of athletic achievement (as we have been led to expect) but of chemical engineering.

And that would make fools of everyone who bought a seat to see Sosa and McGwire battle it out, or to see Bonds to hit another shot into McCovey Cove.

Baseball fans have a right to know if they've been played as suckers - and Congress is best situated to shed light on the question.

Third, there is a moral value in exposing cheating among professional athletes. Although this alone would not justify a congressional hearing, it could certainly be a salutary byproduct.

I remember years ago watching East German Olympians destroy their American counterparts yet taking solace in the fact that, even if we could not beat the chemically-enhanced East German's, at least we were playing by the rules. Now it is U.S. athletes who are the poster children for cheating on the national and international stage. That is disgraceful.

Decrying this development and publicly exposing some of the athletes who have created the problem, even if this amounts to pure symbolism, is still worth something. Indeed, in my view, it's worth a great deal.

The idea of a level playing field is deeply engrained in the myth of the American Dream. Most of the time these days, Congress is busy tilting various scales in favor of the haves against the have-nots. So even if the subject is only baseball, and if it is only lip service, I'm looking forward to Congress standing tall for the idea that everyone deserves a fair chance to compete. That's an idea well worth a hearing.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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