Baseball, the Law, and the Rules, Part Two:
Should the Pete Rose Hall-of-Fame Precedent Apply to Steroids-Era Players Such as Mark McGwire and Barry Bonds?

By HOWARD WASSERMAN

Monday, Mar. 27, 2006

The first column in this three-part series considered the legal consequences of baseball players' use of steroids and other performance enhancing drugs, as well as quasi-legal consequences, such as the risk that some players of the Steroids Era, although worthy of enshrinement in the National Baseball Hall of Fame in Cooperstown, N.Y., nevertheless may be excluded.

Part Two focuses specifically on the question of whether the Pete Rose case should be used as a precedent for keeping Steroids-Era players such as Barry Bonds and Mark McGwire out of the Hall- and argues that it should not be.

The Pete Rose Precedent: A Clear, Black-Letter Rule Makes Him Ineligible

Rose, renowned for a relentless playing style that earned him the nickname "Charlie Hustle," had an on-field career that, standing alone, surely merits enshrinement in Cooperstown. He retired in 1986 as the all-time career leader in hits, and the holder of the second-longest consecutive-games hitting streak. He had a lifetime batting average over .300 and won a Most Valuable Player award, a Rookie of the Year Award, and three batting titles. He played in six World Series and on three World Championship teams. After retiring, he become manager of the Cincinnati Reds, the team for which he played for most of his career, in a city in which he was a beloved figure (the street outside the team's stadium at the time was named Pete Rose Way).

But in 1989, then-Commissioner A. Bartlett Giamatti opened an investigation into Rose's gambling activities. Reports indicated that Rose had bet on Major League Baseball games in which his Reds were playing, in violation of Major League Rule 21(d) -- the punishment for which was placement on baseball's permanent ineligible list. An independent investigation by former prosecutor John M. Dowd compiled substantial evidence of Rose's gambling activities, including bets on Reds games.

In August 1989, before Giamatti could hold a hearing or reach a final determination on the allegations, Rose entered an agreement with Major League Baseball. Under the agreement, Rose accepted placement on the Ineligible List, but expressly declined to admit or deny the gambling allegations.

The agreement gave Rose permission to seek reinstatement, which he has done on several occasions - unsuccessfully. And in 2004, after 15 years of vigorous denials, Rose -- in a book entitled My Prison Without Bars -- admitted to gambling on baseball, including on games involving his team. Accordingly, Rose remains permanently ineligible

Simply because Rose is on the permanently ineligible list, he cannot be elected or inducted into the Hall of Fame, pursuant to Rule 3E of the Rules for Election to the Hall of Fame. The question of his on-field performance, however worthy, is irrelevant under Rule 3E. At some level, in fact, it is not even relevant whether or not he actually did violate Rule 21(d) by betting on Reds games, since he agreed to accept the ban and Rule 3E turns on whether a player is on the Ineligible List, not whether he deserves to be there.

Was Rule 3E Unfair - Just as a Bill of Attainder Is?

One might challenge the wisdom of Hall Rule 3E, of course, following two lines of argument, one stronger than the other.

The first is the "playing field only" argument: Rose and others have argued that the Hall should be about nothing outside the lines of the playing field. But it seems anomalous, to say the least, to argue that a player is deserving of enshrinement even after so violating the fundamental rule of the game that he is ineligible to participate in any way, manner, or capacity in the operations of Major League Baseball, or its teams, and in any official function of Baseball, or its teams.

The second, somewhat stronger, argument is that Rule 3E is something like a bill of attainder - the kind of law the Constitution specifically prohibits (at least in the criminal context) because it targets a single person for punishment. It is no coincidence that Rule 3E was passed in February 1991--the first year that Rose (who had last played in 1986) would have been eligible for election.

Although the rule was not formalized under 1991, it arguably was in operation before then. The only other player who had been in Rose's situation--a Hall-of-Fame career and a place on the permanently ineligible list--was "Shoeless" Joe Jackson, who was banned in 1921 for his role in the "Black Sox Scandal" to throw the 1919 World Series. From 1936 (when the five-member inaugural Hall of Fame class was inducted) until 1990, voters declined to elect Jackson, although his career numbers merited induction. One might read that refusal as reflecting the implicit adoption of a rule that a player who is on the permanently ineligible list should not be elected to the Hall.

Why formalize the tacit rule? For the same reasons that legislatures enact statutes rather than relying on courts to adjudicate in the common law mode: To ensure that substantive rules reflect it's the legislative will and to increase certainty and predictability. The Hall's Board of Directors likely wanted to ensure that permanently banned players would continue to be excluded and that voters could not be swayed by the "playing field only" argument likely to come from Rose (or, for that matter, by advocates of Shoeless Joe's induction, following a spate of books and movies in the 1980s that reconsidered the Black Sox Scandal and suggested that Jackson was not treated fairly).

Why the Rose Precedent Should Not Govern the Bonds and McGwire Cases

There is a parallel between the Rose case and the Bonds and McGwire cases: They all are superstars whose career numbers, standing alone, merit induction. But the parallel ends there. The cases are not otherwise alike. They fall under different rules, and as I will explain, the application of different rules is dispositive.

McGwire hit 583 career home runs and was, in his time, the game's most-feared power hitter. In 1998, he hit 70 home runs, shattering the single-season record that had stood for 37 years. And his summer-long pursuit of the record captured the national imagination and helped restore the popularity the game lost when a player lockout in 1994 resulted in the cancellation of the World Series.

From the late 1980s until 1998, Barry Bonds won three MVP awards and reigned as one of the best all-around players in baseball (and perhaps baseball history). From 1999 until 2004, Bonds became (whether with or without chemical aid is the great unknown) the greatest hitter in history. He has won four more MVP awards in that time, one unanimously. In 2002, Bonds broke McGwire's single-season record by hitting 73 home runs. If he is able to play one or two more years (he missed most of 2005 with injuries and now finds himself under intense legal scrutiny), Bonds almost certainly will retire as the all-time career leader in home runs.

Hall Rule 3E is not applicable to Bonds or McGwire. Neither player is on Baseball's permanently ineligible list, and neither is ever likely to be. As discussed in my prior column in this two-part series, steroids were neither tested for nor subject to punishment under the rules of Major League Baseball until 2003 (two years after McGwire retired). Before 2006, a player could not be permanently banned for steroid use; under the new rules, he can be banned only on a third positive test. Moreover, by the terms of the new rule, punishment for steroid use is tied exclusively to positive drug tests; it is not clear that other evidence of steroid use (including an admission, or the substantial documentary evidence of Bonds' purported use described in the forthcoming book Game of Shadows) could provide the factual basis for punishment.

It is true that the possession of steroids (but not their use) was prohibited by federal law and in other sports leagues at the relevant time. But what matters here are the rules of Major League Baseball - a principle the game has invoked to its own advantage in the past.

For example, although Shoeless Joe and the other Black Sox were acquitted of gambling-related charges, Commissioner Kenesaw Mountain Landis still found the power to permanently ban them from the game, famously remarking that "regardless of the verdict of juries, baseball is entirely competent to protect itself against crooks, both inside and outside the game."

Conversely, regardless of the rules of the Olympics, baseball can enforce only its own rules against its players, not the rules of other organizations.

Selig arguably still may investigate allegations of past steroid use by Bonds, McGwire, or others. But that investigation would be for violating a different rule, Major League Rule 21(f), which establishes a residual prohibition on other "acts, transactions, practices, or conduct not to be in the best interests of baseball." The Commissioner expressly possesses broad power to impose any penalties, including permanent ineligibility, for such conduct. But it seems unfair to impose a lifetime ban (or even a long suspension) on conduct that was not obviously beyond the rules at the time. And it is doubtful that such a ban would withstand review by an arbitrator under the Basic Agreement. We thus can assume that any investigation will not result in Bonds' or McGwire's permanent ineligibility.

Thus, Bonds and McGwire never will be subject to the blanket exclusion of Hall of Fame Rule 3E - the rule that has kept Rose out of Cooperstown. Rather, individual voters will evaluate their candidacies and determine whether they should be selected--in other words, judges will make case-by-case decisions as to their Hall worthiness.

When the Bonds and McGwire Cases Go Before the Voters, How Will They Decide?

Under Rule 5 of the Rules of Election to the Hall of Fame, voters select players based on their "record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played." This is a broad standard, leaving each individual judge broad (and unreviewable) discretion and calling on each to fill in gaps, usually by looking to past similar players in deciding whether a player's record and ability warrant induction.

Voters have tended to honor the "integrity, sportsmanship, character" elements more in the breach than in reality. Ty Cobb was known as a racist and a famously disagreeable individual; Babe Ruth was known as a womanizer and a heavy drinker in the Prohibition Era. Yet both were members of the first Hall class.

More generally, voters have tended to measure Hall-worthiness by on-field performance, regardless of a player's character or what may have happened off the field. This is why we might infer- as suggested above - that voters' consistent refusal to elect Shoeless Joe was a product not of his misconduct per se, but of the punishment (lifetime ban) attached to it.

Of course, the issue of steroid use presents a new twist on the on-field/off-field dichotomy, because this off-field misconduct directly affects on-field performance, in a way that gambling may or may not. (In theory, a player might throw games, but also may simply bet on himself or his team because he believes in them or has inside knowledge.)

On the other hand, each voter deciding on an alleged steroid user must determine how much of a player's "record and playing ability" has been enhanced by his use of performance-enhancing drugs and whether that record remains Hall-worthy if chemically aided. If a steroid-user hit 550 home runs (500 previously had been one benchmark for Hall qualification), how many fewer would he have hit playing "clean"? And would he still justify selection?

Ironically, this analysis may be easiest in Bonds' case. All evidence shows that Bonds did not begin using performance-enhancing drugs (if he did, in fact, use) until 1999. A voter could simply disregard his steroid-filled late career, and elect Bonds based on his unquestionably Hall-worthy pre-1999 performance.

By analogy, appellate courts often disregard improperly admitted evidence and evaluate what is left in determining whether an error is "harmless." Voters might see Bonds' steroid use as "harmless" for purposes of his Hall of Fame status, because he could be elected based on his prior record alone. Steroid use then simply becomes a question of integrity and character, which voters routinely ignore in making selections.

Pete Rose's Defense: Why It is Unconvincing

Rose's favorite argument (now that he no longer can deny betting on the Reds) has been that steroid use is far worse than gambling. He argues that there is blatant injustice if steroid users are admitted to the Hall, while he remains on the outside looking in "merely" for gambling.

Rose actually is wrong in his comparison. In baseball's early days, gambling posed a substantial threat to the integrity of the sport. Stories of players throwing games abounded during the first two decades of the Twentieth Century, including rumors of a fix in the very first World Series in 1903. The only reason that gambling can be seen as "no big deal" now is that it has been so restricted and severely punished for 80 years.

But even if Rose is correct that steroids are more serious than gambling, his argument still fails. It is the equivalent of trying to re-open the policy debate behind an enacted law when one does not like how the law has been applied to oneself. Rule 3E was properly enacted, and properly applied to Rose, eliminating any right to argue his case to the Hall voters.

By contrast, different rules apply to Bonds and McGwire, which very likely will put their cases before Hall voters and very likely will result in their election to the Hall. abut

But the difference between Rose on one hand and Bonds and McGwire on the other is the difference between separate legal rules, established in advance and fairly applied. To the extent these different rules produce different results in different cases, that simply is the essence of the legal process.


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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