The Mitchell Report on Steroids in Major League Baseball:
Historical Accounting, Future Recommendations, and What Lies Ahead for Our National Pastime

By HOWARD WASSERMAN

Friday, Dec. 21, 2007

Last week, with great fanfare, former Senator George J. Mitchell unveiled the results of his 21-month investigation into the use of anabolic steroids, human growth hormone, and other performance-enhancing drugs in Major League Baseball since the mid-1990s. In more than 300 pages (plus appendices), Mitchell has sought both to create the definitive historical accounting for the past two decades of Major League Baseball, and to make recommendations as to how Major League Baseball can stop current drug use and prevent future drug use. As Mitchell emphasized both in the Report and in the press conference announcing the results, "a principal goal of this investigation is to bring to a close this troubling chapter in baseball's history and to use the lessons learned from the past to prevent the future use of performance enhancing substances," while insisting that "all efforts should now be directed to the future."

In this column, I will consider the content of the Report, the many criticisms of the Report, and what lies ahead for Major League Baseball, its teams, and its players.

The Report's Revelations of Steroid Use By Current and Former Players

By far the most attention-grabbing element has been its identification of more than 80 current and former players as having used performance-enhancing drugs. The most startling name was that of Roger Clemens, a lock for induction into the Baseball Hall of Fame and arguably the greatest pitcher of his generation.

There were two primary sources for player names. The first was Kirk Radomski, a former clubhouse attendant for the New York Mets and personal trainer, who testified to providing steroids to more than 50 players. Radomski cooperated with Mitchell's investigation as part of a plea agreement on federal charges of steroid distribution and money laundering. The second was Brian McNamee, a personal trainer for several players and former strength coach for two teams. McNamee testified pursuant to an immunity agreement with the federal government.

The Report purports to spread the blame for the rise of steroids all around--to players, teams, and MLB. Primary blame, however, landed on the players who cheated by using steroids and on the players' union, which resisted early MLB efforts to impose drug testing and would not cooperate with Mitchell's investigation.

The Report does state, however, that the players "did not act in a vacuum" and chastises MLB, the Commissioner's Office, and team management as well.

Interestingly, in detailing evidence of steroid use by several players, the Report describes conversations between some team executives discussing particular players as "steroid guys," and taking that fact into consideration when deciding whether to acquire a particular player. This suggests that high-level executives accepted steroid use as part of the game at the time, just one more consideration in evaluating on-field talent and performance. But the Report does little with this insight. Nor does it mention the March 2005 hearing before the House Committee on Government Reform, in which Commissioner Bud Selig was taken to task for his lack of leadership on the steroids problem and his failure to respond to two decades of evidence of steroid use.

As noted, the Report also proposes a series of forward-looking recommendations to address the problem of performance-enhancing drugs. These recommendations focus on establishing a comprehensive testing, investigation, and education program, operated by a Department of Investigations that would be independent of MLB structures and officials. Mitchell also proposes an emphasis on non-testing-based investigative measures. Importantly, Mitchell strongly urges Selig "to forego imposing discipline on players for past violations," and to move forward.

Leading Criticisms of the Report

The Report has been criticized for relying on weak, non-scientific, non-testing-based evidence. In fact, the word "hearsay" seems to have been thrown around on ESPN more in the past week than in the network's 30-year existence. A related criticism has been that, at least as to a few players, Radomski's testimony is uncorroborated by other evidence, whether statements from other witnesses or canceled checks.

The hearsay criticism is generally wrong. Most of the evidence given to Mitchell is not hearsay, but rather firsthand testimony regarding transactions and conversations between Radomski or McNamee and particular players. The general reliance on non-testing, non-scientific evidence also is not problematic. The assumption that only a failed drug test constitutes evidence of steroid use reflects both a misunderstanding of how the process of proof works--documentary and witness testimony are ordinary means of establishing facts--and unwarranted overconfidence in the ability of drug testing, standing alone, to catch steroid use.

Granted, Radomski's and McNamee's mainly state that they supplied performance-enhancing drugs to players, not that they saw the players use those drugs (although McNamee testified to personally injecting several players). However, evidence that a player obtained steroids allows the inference that he used those steroids.

Mitchell also has been criticized for naming names in light of two acknowledged limitations upon his investigation: First, the 80 names almost certainly do not exhaust the universe of baseball's steroid users--only those who did business with Kirk Radomski and Brian McNamee. On this point, Mitchell concedes that use likely was more widespread.

Second, naming names is somewhat inconsistent with the Report's call for MLB to forego punishing players; if Mitchell truly wanted punishment off the table, why identify past users? The answer may lie in Mitchell's desire to make the report a definitive historical accounting of this chapter in baseball history, revealing the truth, the full and correct story, and allowing the game to move on from there. Mitchell thus may have viewed his role less as preparing a report for future prosecutions, and more as a kind of truth-and-reconciliation commission--examining and identifying past misdeeds to set the societal historical record straight, without imposing retrospective punishment for those misdeeds.

"Eighty Men Out:" Will MLB Punish Named Players, and If So, How?

As noted above, Mitchell expressly urged Selig not to punish the named players, citing the remoteness in time of the alleged use and the retirement of about half of the named players. We might add that the sheer number of players makes punishment difficult. Selig insisted, however, that he will consider punishment on a case-by-case basis, indicating that league discipline remains on the table. Several questions loom over any attempts at punishment.

First, because there were no specific penalties for steroid use during the period prior to 2005, when some of the conduct in question occurred, Selig would not be able to point to an express rule in imposing punishment. Instead, he must rely on his power to punish acts not deemed in the "best interests of baseball." And because league drug policies are a subject of baseball's collective bargaining agreement, any suspension likely would be the subject of a grievance and labor arbitration to determine whether the punishment was for "just cause." In essence, Selig's best-interest power will be subject to review under the collective bargaining agreement. Following this process for 80 current and former players might prove unwieldy and time-consuming.

Mitchell suggested that named individuals who no longer are playing are beyond the authority of the Commissioner. In fact, however, a suspension, or more dramatically, a permanent ban, could affect even retired players by keeping them out of other positions in baseball, such as managing, coaching, and scouting. It also could keep a retired player out of the Baseball Hall of Fame; under Hall rules, a player on baseball's ineligible list is ineligible for election or induction. This likely affects only a small number of the players named (Clemens, perhaps a few others), but it keeps even retired players within the Commissioner's jurisdiction.

Will The Named Players Sue for Defamation?

Immediately, speculation focused on whether wrongfully-named players would sue Mitchell or Major League Baseball for defamation, to clear their names. Several players, through their attorneys, made noises in this direction. However, even if such actions are filed, they are unlikely to succeed.

Current players and many of the former players likely will be deemed public figures (or at least limited-purpose public figures for an action relating to baseball). If so, under the First Amendment and the Supreme Court's decision in New York Times v. Sullivan, they cannot prevail without proving that the statements that they used steroids were false and made with "actual malice"--that is, with knowledge that the statements were false or with reckless disregard for their truth or falsity. Actual malice is a notoriously difficult standard to meet. Deciding whether the standard is met in a particular case will turn on facts relating to how careful Mitchell was in his investigation, whether there was corroborating evidence of steroid use, and whether there was contrary evidence that called Mitchell's conclusions into doubt.

Why Barry Bonds Played Only a Minor Role in the Mitchell Report

Interestingly, Barry Bonds, the poster-boy for baseball's steroid problem, has not been a focal point of the current controversy. Bonds is mentioned in the Report's discussion of the federal BALCO investigation, but the Report basically parrots what was known from the Bonds indictment and the book Game of Shadows. Bonds is currently under federal indictment for perjury and obstruction of justice for allegedly lying in his grand jury testimony in denying using steroids and other performance-enhancing drugs.

The public perception of Bonds should change somewhat with the knowledge that Bonds was not the only player cheating, particularly given revelations about Clemens. The two are linked forever in baseball history. It perfectly captures the steroids era that its greatest pitcher and greatest hitter both allegedly achieved their historic and record-setting performances, including late-career resurgences, with chemical help.

It has been argued that the federal government should drop perjury charges against Bonds in light of the revelations as to the pervasiveness of steroid use. The suggestion is that pursuing Bonds, who is African-American, even though Clemens, who is white, also used performance-enhancing drugs, reflects racial bias.

On one hand, neither Clemens nor any of the other named players is similarly situated to Bonds, at least from the criminal justice system's perspective. Bonds was indicted for lying under oath to a federal grand jury about his steroid use, not for using steroids. Clemens has not, as yet, been asked under oath whether he used steroids; if he is asked and he lies, a similar perjury investigation and prosecution should follow.

On the other hand, however, Bonds and Clemens are fully comparable as to MLB punishment. There now is evidence (of differing strengths perhaps; we do not know the evidence against Bonds) that both used performance-enhancing drugs, and there are no apparent distinctions between their situations as to baseball. Thus, if one is to be banned, suspended, or otherwise punished, the other should suffer the same fate.

The Future of the National Pastime

Overall, the Mitchell Report likely raises more questions than it answers about the past and future of baseball. At best, it exposes the magnitude of the steroids problem. And it offers some concrete, if general, solutions.

At worst, it is a whitewash of past misconduct that does not grasp or deal realistically with the issues. Baseball officials came late to the steroids problem; the league and its teams reaped the financial benefits that accompanied the offensive explosion of the steroids era while turning a blind eye to early evidence of use. Many players were (and perhaps continue to be) willing to risk the future health consequences in exchange for the on-field performance benefits that steroids provide. And there may be too many players named, and too many players who also used but have not been identified, to justify retroactive punishment. The Report also may give congressional committees an excuse to hold new hearings, with players testifying under oath; although, as with the March 2005 hearings, this would achieve nothing besides providing opportunity for political grandstanding.

Mitchell arguably is right: It is time to look to the future--with an open mind.


Howard M. Wasserman is Visiting Associate Professor at Saint Louis University School of Law and Associate Professor at FIU College of Law

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