Baseball, the Law, and the Rules, Part One: Thoughts on Barry Bonds, Mark McGwire,

By HOWARD WASSERMAN

Friday, Mar. 24, 2006

Baseball is the most legalistic of sports. Law helps us understand baseball and vice versa. The worlds of baseball and law presently are intersecting in the continuing fallout from Major League Baseball's Steroids Era, a 15-year period marked by widespread (exactly how widespread remains in some dispute) use of anabolic steroids, human growth hormone, and other performance-enhancing drugs - enabling players to mount a relentless assault on the offensive records and milestones that the game holds dear.

The era officially ended in March 2005, in hearings before the Subcommittee on Commerce, Trade and Consumer Protection of the House of Representatives. But the legal ramifications, inside and outside baseball, continue.

This three-part series of columns will discuss some legal and quasi-legal consequences that may affect prominent players of the Steroids Era.

The Legal Status of Steroids: Why Baseball Did Not Do More

Steroids are a Category III controlled substance under federal law. But while federal law outlaws the possession, manufacture, and distribution of steroids, it does not outlaw their use.

Indeed, until the end of the 2002 season, steroids were not tested for or subject to punishment under the rules of Major League Baseball or the Basic Agreement between the league and the Major League Baseball Players' Association. Though steroids were outlawed, and tested for, in other sports, including professional football, cycling, and in the Olympic Games, baseball had not yet taken those steps.

Baseball received its wake-up call during the committee hearing, in which committee members took both Baseball Commissioner Bud Selig and players' union Director Donald Fehr to task for not doing anything about player steroid use.

Baseball got on the testing bandwagon in the wake of the hearing and in the face of the introduction in the House of Representatives of the Drug Free Sports Act, which would establish uniform steroid-testing rules for all sports. After the 2005 season, baseball finally established a serious sequence of punishments for steroid use, including a lifetime ban for a third positive test.

Players Who Did, and Did Not, Risk Perjury Prosecutions

Present and former players testified under oath before the House committee, which forced them to keep not only their baseball reputations but also criminal law in mind.

Retired slugger Mark McGwire repeatedly declined to answer direct questions about his long-suspected steroid use. Interestingly, he did not invoke his privilege against self-incrimination, but simply cited his lack of desire to "talk about the past."

Far less careful than McGwire, was Rafael Palmiero, an active player. In his opening statement, Palmiero wagged his finger at committee members and stated "I have never used steroids. Period." Several months later, he tested positive for one of the most potent and effective steroids; he only avoided a perjury charge because the subsequent positive test did not establish that he had used steroids before the hearing (and thus that he lied under oath).

Quasi-Legal Punishments: Will Baseball Suspend Barry Bonds?

One player not called to testify was Barry Bonds, who has been at the top of the list of steroids suspects for several years. Since turning thirty-five in 1999, Bonds has gained fifteen pounds of muscle and shown a marked change in the size and shape of his head and body--often telltale signs of steroid use. He also morphed from a merely great player into the greatest hitter in the history of the game.

Bonds enters the 2006 season on the verge of baseball immortality. He has hit 708 home runs (297 of those since 1999), six shy of Babe Ruth, baseball's ultimate benchmark, and 47 shy of the all-time mark held by Hank Aaron.

The looming question has been whether steroids contributed to Bonds' late-career power surge, taking him out of comparisons to Aaron and Ruth. The forthcoming book Game of Shadows, by reporters Mark Fainaru-Wada and Lance Williams, suggests the answer is yes. It minutely details Bonds' alleged use of steroids, human growth hormone, insulin, and other performance-enhancing drugs. Bonds' name also surfaced in connection with a federal investigation of the Bay Area Laboratory Company (BALCO) for the manufacture and sale of steroids to many high-profile athletes in baseball, football, and Olympic track and field. Bonds testified before a federal grand jury in the case in December 2003 and Game of Shadows suggests that he may have perjured himself.

The new allegations about Bonds have captured the attention of members of Congress - as well as baseball officials, media, and fans. Rep. Cliff Stearns (R-FL), who chairs the commerce subcommittee and introduced the steroids-in-sports legislation, wrote to Commissioner Selig, inquiring as to what Selig planned to do about Bonds. Subsequently, and recently, Selig announced that baseball would formally investigate claims that Bonds used performance-enhancing drugs. It remains to be seen whether, if Bonds is found to have done so, Selig will suspend or otherwise punish him. Selig possesses broad power to act against conduct he deems not in the "best interests of baseball."

National Baseball Hall of Fame: The Quasi-Legal Effect of Voters' Choices

Meanwhile, a separate, quasi-legal question looms: The effect players' steroid use, or suspected use, should have on their eligibility and selection for enshrinement in the National Baseball Hall of Fame in Cooperstown, New York? It is not clear how Hall of Fame voters will evaluate Steroids-Era players. Nor is it clear how they should balance on-field performance that justifies election against off-field conduct that does not -- and that even calls that on-field performance into question.

This debate immediately affects Mark McGwire, who appears on the Hall ballot for the first time in 2006. (Players must be retired at least five years to be eligible and McGwire last played in 2001). Voters may see McGwire's refusal to "talk about the past" as an implicit admission of steroid use; at a minimum, they may consider that McGwire has not protested his innocence. McGwire also has been conspicuously absent from the baseball spotlight since his retirement, suggesting he is trying hard to avoid scrutiny.

Bonds will turn 42 in July. He likely will play at most a few more years, assuming he does not retire as early as this year in the face of various investigations for steroid use. Thus the Hall will face a similar issue as to Bonds as early as 2011.

In deciding how to weigh steroid use against Hall-worthy on-field accomplishments for Bonds, McGwire, and other players of the Steroids Era, there doubtless will be a temptation to analogize to another high-profile example of a player with a Hall-of-Fame-quality on-field career kept out of Cooperstown by his off-field conduct--Pete Rose.

But the comparison between McGwire and Bonds on one hand, and Rose on the other, is inappropriate - as the second column in this series will argue on Monday.


Howard Wasserman is Assistant Professor of Law at Florida International University College of Law. He is a lifelong baseball fan and a Chicago Cubs loyalist. He can be reached at howard.wasserman@fiu.edu.

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