REPORT TO THE COMMISSIONER OF BASEBALL OF AN INDEPENDENT INVESTIGATION INTO THE ILLEGAL USE OF STEROIDS AND OTHER PERFORMANCE ENHANCING SUBSTANCES BY PLAYERS IN MAJOR LEAGUE BASEBALL
GEORGE J. MITCHELL
DLA PIPER US LLP
December 13, 2007
Copyright © 2007 Office of the Commissioner of Baseball. All rights reserved.
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C. Discovery of Steroids in Florida Marlins Player’s Locker, June 2000................ 92
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D. Shipment of Steroids to Arizona Clubhouse, September 2000............................ 94
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REPORT TO THE COMMISSIONER OF BASEBALL OF AN INDEPENDENT INVESTIGATION INTO THE ILLEGAL USE OF STEROIDS AND OTHER PERFORMANCE ENHANCING SUBSTANCES BY PLAYERS IN MAJOR LEAGUE BASEBALL
SUMMARY AND RECOMMENDATIONS
Summary and Recommendations
For more than a decade there has been widespread illegal use of anabolic steroids and other performance enhancing substances by players in Major League Baseball, in violation of federal law and baseball policy. Club officials routinely have discussed the possibility of such substance use when evaluating players. Those who have illegally used these substances range from players whose major league careers were brief to potential members of the Baseball Hall of Fame. They include both pitchers and position players, and their backgrounds are as diverse as those of all major league players.
The response by baseball was slow to develop and was initially ineffective, but it gained momentum after the adoption of a mandatory random drug testing program in 2002. That program has been effective in that detectable steroid use appears to have declined. But the use of human growth hormone has risen because, unlike steroids, it is not detectable through urine testing.
This report, the product of an intensive investigation, describes how and why this problem emerged. We identify some of the players who were caught up in the drive to gain a competitive advantage through the illegal use of these substances. Other investigations will no doubt turn up more names and fill in more details, but that is unlikely to significantly alter the description of baseball’s “steroids era,” as set forth in this report.
From hundreds of interviews and thousands of documents we learned enough to accurately describe that era. While this investigation was prompted by revelations about the involvement of players with the Bay Area Laboratory Co-Operative, the evidence we uncovered indicates that this has not been an isolated problem involving just a few players or a few clubs. It has involved many players on many clubs. In fact, each of the thirty clubs has had players who have been involved with performance enhancing substances at some time in their careers.
The illegal use of these substances was not limited to the players who are identified in this report. There have been many estimates of use. In 2002, former National League Most Valuable Player Ken Caminiti estimated that “at least half” of major league players were using anabolic steroids. Dave McKay, a longtime coach for the St. Louis Cardinals and the Oakland Athletics, estimated that at one time 30% of players were using them. Within the past week, the former Cincinnati Reds pitcher Jack Armstrong estimated that between 20% and 30% of players in his era, 1988 to 1994, were using large doses of steroids while an even higher percentage of players were using lower, maintenance doses of steroids. There have been other estimates, a few higher, many lower, all impossible to verify.
However, it is a fact that between 5 and 7 percent of the major league players who participated in anonymous survey testing in 2003 tested positive for performance enhancing substances. Those figures almost certainly understated the actual level of use since players knew they would be tested at some time during the year, the use of human growth hormone was not detectable in the tests that were conducted, and, as many have observed, a negative test does not necessarily mean that a player has not been using performance enhancing substances.
Mandatory random testing, formally started in 2004 after the survey testing results, appears to have reduced the use of detectable steroids, but players switched to human growth hormone precisely because it is not detectable. Players who use human growth hormone apparently believe that it assists their ability to recover from injuries and fatigue during the long baseball season; this also is a major reason why players used steroids. Human growth hormone was the substance most frequently sold to players by Kirk Radomski, a former New York Mets clubhouse employee who was a significant source of illegal performance enhancing substances until late 2005. Separately, a number of players reportedly purchased human growth hormone through “anti-aging” centers using dubious prescriptions written by physicians who never examined, or even met, the customers for whom they were writing prescriptions.
At the beginning of this investigation, I said that I would conduct a “deliberate and unbiased examination of the facts that will comport with basic American values of fairness.” To honor that commitment, I invited each current or former player about whom allegations were received of the illegal possession or use of performance enhancing substances to meet with me so that I could inform him of the evidence supporting the allegations and give him a chance to respond. The explanations provided by those players who we did interview were taken into account and are reflected in this report.
Among current players I asked to interview were five who have spoken publicly about the issue. When I did so, I made clear that there was no suggestion that any of the five had used performance enhancing substances, and I repeat here that clarifying statement. Four of the five declined. One of them, Frank Thomas of the Toronto Blue Jays, agreed. His comments were informative and helpful.
Since 1986, drug testing has been subject to collective bargaining in Major League Baseball. For many years, citing concerns for the privacy rights of players, the Players Association opposed mandatory random drug testing of its members for steroids or other substances. On the other side of the bargaining table, the owners and several Commissioners proposed drug testing programs but gave the issue a much lower priority in bargaining than economic issues. But when the opportunity was presented in 2002 to achieve agreement on a system of mandatory random drug testing, the Commissioner pressed hard on the issue and the Players Association agreed to the basic elements of the program that is in place today.
No drug testing program is perfect. The current drug testing program in Major League Baseball is the product of the give and take inherent in collective bargaining. It appears to have reduced the use of detectable steroids but by itself has not removed the cloud of suspicion over the game. Even as this investigation was underway, developments in several government investigations exposed the depth and breadth of the continuing illegal use of these substances in baseball (and in other sports) and made clear that this problem continues, years after mandatory random testing began and stringent penalties for failing those tests were adopted.
Plainly, baseball needs to do more to effectively address this problem. I have never met or talked with Jeff Kent of the Los Angeles Dodgers, but he appears to have understood this when he said in September, as reported in several newspapers: “Major League Baseball is trying to investigate the past so they can fix the future.”
That is the purpose of the recommendations that are set forth in detail in this report. In summary, they fall into three categories: (1) Major League Baseball must significantly increase its ability to investigate allegations of use outside of the testing program and improve its procedures for keeping performance enhancing substances out of the clubhouse;
Although I sought and received a wide range of views, including the opinions of many experts in the field, the conclusions and recommendations in this report are mine alone, following close consultation and extensive discussions with the very talented members of the staff I assembled to assist me in this effort.1
A. The Investigation and this Report On March 30, 2006, the Commissioner of Baseball, Allan H. (“Bud”) Selig, asked
me to investigate allegations that a number of players in Major League Baseball had illegally used steroids and other performance enhancing substances. I accepted on the conditions that
The Commissioner retained the authority to determine whether any activities in the conduct of this investigation might violate his obligations under the Basic Agreement, including the joint drug program. I agreed to be bound by his decisions in that regard.
The Commissioner also retained the right to prohibit publication in this report of any information that he is under a legal duty to keep confidential. To enable him to make that determination, I agreed to provide his office the opportunity to review this report three business days before it was released publicly. No material changes were made as a result of that review.
I was assisted in this investigation by lawyers from the firm of DLA Piper US LLP and by several experts. They include Richard V. Clark, M.D., Ph.D., a leader in the fields
1 I personally conducted many of the interviews that form the basis for this report, but because more than 700 interviews were taken during this investigation it was not possible for me to conduct all of them. Lawyers on my staff from the law firm of DLA Piper conducted the interviews that I did not attend. In this report, I use the pronouns “I” and “we” interchangeably because its findings are based on our work collectively, under my direction.
of andrology and endocrinology and Richard H. McLaren, HBA, LL.B., LL.M., C. Arb., a professor of law at the University of Western Ontario and a distinguished arbitrator for the Court of Arbitration for Sport.2
I requested the production of relevant documents from the Commissioner’s Office, each of the thirty major league clubs, and the Players Association. We received and reviewed more than 115,000 pages of documents from the Commissioner’s Office and the thirty clubs and over 20,000 electronic documents that were retrieved from the computer systems of the Commissioner’s Office and some of the clubs. We also gathered and reviewed many documents from other sources, some of them public.
In the course of the investigation, we interviewed more than 700 witnesses in the United States, Canada, and the Dominican Republic. Over 550 of these witnesses were current or former club officials, managers, coaches, team physicians, athletic trainers, or resident security agents. We also interviewed 16 persons from the Commissioner’s Office, including Commissioner Selig, president and chief operating officer Robert DuPuy, executive vice president for labor relations Robert D. Manfred, Jr., and former senior vice president for security and facility management Kevin Hallinan.
We sought to interview as many current and former players as possible. We attempted to reach almost 500 former players. Many of them declined to be interviewed, but 68 did agree to interviews. In addition, interviews of 3 former players were arranged through the assistance of federal prosecutors and law enforcement agents.
2 Lawyers from Foley & Lardner LLP played a separate but important role as counsel for the Commissioner and Major League Baseball. Lawyers from Foley & Lardner did not participate in many of the interviews that we conducted and had no role in preparing this report other than reviewing it, as representatives of the Commissioner, three days before its release.
The Players Association was largely uncooperative. (1) It rejected totally my requests for relevant documents. (2) It permitted one interview with its executive director, Donald Fehr; my request for an interview with its chief operating officer, Gene Orza, was refused. (3) It refused my request to interview the director of the Montreal laboratory that analyzes drug tests under baseball’s drug program but permitted her to provide me with a letter addressing a limited number of issues. (4) I sent a memorandum to every active player in Major League Baseball encouraging each player to contact me or my staff if he had any relevant information. The Players Association sent out a companion memorandum that effectively discouraged players from cooperating. Not one player contacted me in response to my memorandum. (5) I received allegations of the illegal possession or use of performance enhancing substances by a number of current players. Through their representative, the Players Association, I asked each of them to meet with me so that I could provide them with information about the allegations and give them a chance to respond. Almost without exception they declined to meet or talk with me.
My goal in preparing this report was to provide a thorough, accurate, and fair accounting of what I learned in this investigation about the illegal use of performance enhancing substances by players in Major League Baseball. To provide context for my conclusions and recommendations, I also include in the report the medical, legal, and historical issues that are part of this complex problem.
I have not included every allegation that we received or the results of every interview we conducted or every document we reviewed. Inevitably, much of that information was cumulative, not relevant, or of only marginal relevance. None of it would have materially altered the account that is provided.
B. The Problem Is Serious The illegal use of performance enhancing substances poses a serious threat to the integrity of the game. Widespread use by players of such substances unfairly disadvantages the honest athletes who refuse to use them and raises questions about the validity of baseball records. In addition, because they are breaking the law, users of these substances are vulnerable to drug dealers who might seek to exploit their knowledge through threats intended to affect the outcome of baseball games or otherwise. The illegal use of these substances to improve athletic performance also carries with it potentially serious negative side effects on the human body. Steroid users place themselves at risk for psychiatric problems, cardiovascular and liver damage, drastic changes to their reproductive systems, musculoskeletal injury, and other problems. Users of human growth hormone risk cancer, harm to their reproductive health, cardiac and thyroid problems, and overgrowth of bone and connective tissue. Apart from the dangers posed to the major league player himself, however, his use of performance enhancing substances encourages young athletes to use those substances.
Young Americans are placing themselves at risk of serious harm. Because adolescents are already subject to significant hormonal changes, the abuse of steroids and other performance enhancing substances can have more serious effects on them than they have on adults.3
Some estimates appear to show a recent decline in steroid use by high school students; they range from 3 to 6 percent.4 But even the lower figure means that hundreds of
3 See Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 307 (2005) (statement of Dr. Kirk Brower).
4 National Institute on Drug Abuse, Monitoring the Future: Nat’l Survey Results on Drug Use, 1975-2006, Vol. 1, at 44 (2006); Centers for Disease Control and Prevention, National
thousands of high school-aged young people are still illegally using steroids. It’s important to devote attention to the Major League Baseball players who illegally used performance enhancing substances. It’s at least as important, perhaps even more so, to be concerned about the reality that hundreds of thousands of our children are using them. Every American, not just baseball fans, ought to be shocked into action by that disturbing truth. The recent decline is welcome, but we cannot be complacent.
Don Hooton, whose son committed suicide after abusing anabolic steroids, created the Taylor Hooton Foundation for Fighting Steroid Abuse. In 2005 congressional testimony, Mr. Hooton said:
I believe the poor example being set by professional athletes is a major catalyst fueling the high usage of steroids amongst our kids. Our kids look up to these guys. They want to do the things the pros do to be successful.
*** Our youngsters hear the message loud and clear, and it’s wrong. “If you would want to achieve your goal, it’s OK to use steroids to get you there, because the pros are doing it.” It’s a real challenge for parents to
overpower the strong message that’s being sent to our children by your behavior.5 Finally, the illegal use in baseball of steroids and other performance enhancing
substances victimizes the majority of players who do not use those substances. A September 2000 study by the National Center on Addiction and Substance Abuse observed that: ‘Clean’ athletes face three choices: (1) compete without performance-enhancing substances, knowing that they may lose to competitors with fewer scruples; (2) abandon their quest because they are unwilling to use performance-enhancing substances to achieve a decisive competitive
Youth Risk Behavior Survey: 1991-2003: Trends in the Prevalence of Marijuana, Cocaine and Other Illegal Drug Use (2004).
5
Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 307 (2005) (statement of Donald M. Hooton, president & director, Taylor Hooton Foundation).
advantage; or (3) use performance-enhancing substances to level the
playing field.6 We heard from many former players who believed it was grossly unfair that some players were using performance enhancing substances to gain an advantage. One former player told us that one of the “biggest complaints” among players was that a “guy is using steroids and he is taking my spot.”
C. Governing Laws and Major League Baseball Policies Anabolic steroids are listed as controlled substances under the federal Controlled Substances Act. Since 2004, the dietary supplement androstenedione and other steroid precursors have been as well. That means that it is illegal to use or possess steroids or steroid precursors without a valid physician’s prescription. Violations of this law carry penalties similar to those applicable to the illegal use or possession of narcotics. Human growth hormone is a prescription medication. It is illegal to issue a prescription for human growth hormone except for very limited purposes. Human growth hormone never has been approved for cosmetic or anti-aging uses, or to improve athletic performance. Issuing a prescription for human growth hormone for any of these unauthorized purposes is a violation of federal law. Many have asserted that steroids and other performance enhancing substances
were not banned in Major League Baseball before the 2002 Basic Agreement. This is not accurate. Beginning in 1971 and continuing today, Major League Baseball’s drug policy has prohibited the use of any prescription medication without a valid prescription.7 By implication,
6 National Center on Addiction and Substance Abuse at Columbia University, Winning at Any Cost, at 3 (Sept. 2000).
7 See Notice No. 12, Memorandum from Major League Baseball Office of the Commissioner to Administrative Officials of Major and Minor League Ball Clubs Re: Drug Education and Prevention Program, dated Apr. 5, 1971, ¶ 9 (“Baseball must insist its personnel
this prohibition applied to steroids even before 1991, when Commissioner Fay Vincent first expressly included steroids in baseball’s drug policy. Steroids have been listed as a prohibited substance under the Major League Baseball drug policy since then, although no player was disciplined for steroid use before the prohibition was added to the collective bargaining agreement in 2002.
It is also inaccurate to assert, as some have, that baseball’s drug policy was not binding on players before it was added to the collective bargaining agreement. Many players were suspended for drug offenses before 2002, even though none of those suspensions related to the use of steroids or other performance enhancing substances. Some suspensions were reduced in grievance arbitrations brought by the Players Association, but no arbitrator ever has questioned the authority of the Commissioner to discipline players for “just cause” based on their possession, use, or distribution of prohibited drugs.
For many years before 2002, the Players Association opposed any drug program that included mandatory random testing, despite several proposals for such a program from different Commissioners. The early disagreements on this issue centered around testing for cocaine and other “recreational” drugs, not steroids, but the effect of the Players Association’s opposition was to delay the adoption of mandatory random drug testing in Major League Baseball for nearly 20 years.
However, opposition by the Players Association was not the only reason that mandatory random drug testing was not adopted. In 1994, Commissioner Selig and the club owners proposed a drug program that would have included some forms of testing and would have listed steroids among baseball’s prohibited substances. Robert D. Manfred, Jr., who is now
comply with the federal and state drug laws. It is your obligation to be familiar with these drug laws.”).
executive vice president for labor relations in the Commissioner’s Office, recalled that anabolic steroids were included in the 1994 proposal to be proactive, and the decision to include steroids in the proposal was not based on any particular concern about the use of those substances in baseball at that time. He acknowledged that at the time the drug program was not as high a priority as economic issues.
The Players Association did not agree to the proposal. Officials of the Players Association said that the clubs did not appear to regard the 1994 proposal as a high priority and did not pursue its adoption vigorously. Indeed, Players Association executive director Donald
M. Fehr recalled that the proposal never even reached the main bargaining table during negotiations.
Later that year, a work stoppage ended the season and resulted in the cancellation of the World Series. Play resumed in 1995 without a collective bargaining agreement, and the owners made no attempt to renew the drug program proposal when collective bargaining resumed. That bargaining resulted in an agreement that remained in effect until 2002, so the next proposal for a mandatory random drug testing program was made in those negotiations with the Players Association in early 2002.
In 2001, the Commissioner had unilaterally implemented drug testing throughout baseball’s affiliated minor leagues. He used that program as the basis for his 2002 proposal to the Players Association for a major league program. The proposal included many of the elements of the current Major League Baseball joint program. Building from that proposal, the Players Association and the clubs negotiated the terms of a joint drug program as part of the 2002 Basic Agreement. For the first time, there was a program; it provided for the possibility of mandatory random drug testing of all major league players if more than 5% of players tested positive for steroids during anonymous survey testing in 2003. After that did in fact occur, mandatory random drug testing began in Major League Baseball in 2004. That year, there were 12 undisputed positive tests for steroids. No player was suspended because the program did not provide for suspensions of first-time offenders at that time.
The Major League Baseball Joint Drug Prevention and Treatment Program has been modified twice since it originally was agreed to in 2002. In January 2005, human growth hormone (along with seventeen other compounds) was added to the list of prohibited substances. In addition, the Players Association agreed to more stringent penalties for a positive test for steroids (or similar substances) including, for the first time, a suspension of ten days for a player’s first positive test. In 2005, 12 players tested positive for steroids and were suspended for ten days.
Later that year, further revisions were agreed to, including significant increases in penalties: a 50-game suspension for a first positive test; a 100-game suspension for a second positive test; and a permanent suspension for a third positive test. The penalties are unchanged since those revisions. The penalties for positive drug tests under the major league program are the strongest in major U.S. professional sports leagues.8 In 2006, two players tested positive for steroids and were suspended for 50 games. In 2007, three players were suspended for 50 games each for positive steroids tests.
In addition, in June 2006 Arizona Diamondbacks pitcher Jason Grimsley was suspended for 50 games based on “non-analytic” evidence that he had violated the policy,
8 In major professional sports leagues in the United States, athletes are represented in collective bargaining by players associations. Under federal law, drug testing is a subject of collective bargaining and, in this context, requires the agreement of the players associations. That is not the case with the Olympics or other traditionally amateur sports; there the governing bodies may unilaterally impose any program of their choice.
specifically, his reported admissions to federal agents that he had used steroids and human growth hormone. In September 2007, Cincinnati Reds catcher Ryan Jorgenson also was suspended for 50 games based on non-analytic evidence that he had violated the joint program. In December 2007, two players, Jay Gibbons and Jose Guillen, were each suspended for 15 days based on non-analytic evidence of past violations of the joint program.
D. The Rise of the “Steroids Era” Reports of steroid use in Major League Baseball began soon after the widely publicized discipline of Canadian sprinter Ben Johnson at the Summer Olympic Games in September 1988. Jose Canseco of the Oakland Athletics was the subject of the first media speculation about his use of steroids, and Boston Red Sox fans taunted him for his alleged steroids use during the 1988 American League Championship Series. News reports about alleged steroid use in baseball grew more frequent throughout the 1990s. In 1996, after a dramatic increase in offense throughout Major League Baseball, Ken Caminiti of the San Diego Padres was voted the National League’s Most Valuable Player. In a 2002 Sports Illustrated article, he admitted that he had been using steroids that season and credited them for his increased power. In August 1998, coverage of the issue reached what seemed at the time to be a peak, when an article reported that Mark McGwire was using the then-legal steroid precursor androstenedione while chasing the single-season home run record. With the benefit of hindsight, it is clear that baseball missed the early warning signs of a growing crisis. Then, beginning in the summer of 2000, a number of incidents involving steroids or drug paraphernalia came to the attention of club and Commissioner’s Office officials, and the Players Association. They included:
In June 2000, state police in Boston discovered steroids and hypodermic needles in the glove compartment of a vehicle belonging to a Boston Red Sox infielder;
Also in June 2000, a clubhouse attendant found a paper bag containing six vials of steroids and over two dozen syringes in the locker of a pitcher with the Florida Marlins; In mid-September 2000, a clubhouse employee discovered a bottle of steroids and several hundred diet pills in a package that had been mailed to the ballpark for an Arizona Diamondbacks infielder; In October 2001, officers with the Canadian Border Service discovered steroids, syringes, and other drugs in an unmarked bag that came from the entourage of a Cleveland Indians outfielder; In September 2002, a bullpen catcher with the Montreal Expos was arrested for trying to send marijuana back to Florida with the Florida Marlins’ luggage. He later told Major League Baseball security officials that he had supplied drugs to nearly two dozen major league players, including eight players for whom he said he had procured steroids. Further inquiries were made in the Arizona and Montreal incidents, but in some of
these cases, little investigation was conducted. Almost without exception, before this investigation began active major league players were not interviewed in investigations into their alleged use of performance enhancing substances.
Instead, players under suspicion frequently were subjected to “reasonable cause” testing for steroid use. Prior to the 2002 Basic Agreement those tests were the subject of an informal arrangement between the Commissioner’s Office and the Players Association that involved negotiations in each case as to whether testing of a player would be conducted and, if so, when. As a result, when they did occur, the tests were administered long after the allegations were received, and no suspected player ever tested positive for steroids in these tests.
Commissioner Selig and Rob Manfred both recognized the flaws in “reasonable cause” testing as it was conducted during those years. In 2002, Manfred told a Senate subcommittee that the process was “ad hoc at best, and dysfunctional at worst.”9 To remedy the problems, they focused their efforts on negotiating a comprehensive drug program with the Players Association which, when it was agreed to, included both mandatory random drug testing and its own formal procedure for reasonable cause testing.
More recently, the Commissioner’s Office has been more aggressive in responding to allegations of the use of steroids or other performance enhancing substances. Examples include:
In June 2004, a minor league athletic trainer discovered a vial of steroids in a package that had been mailed by a player on a major league 40-man roster. Manfred and his deputy investigated the incident and negotiated a resolution with the Players Association under which the player was immediately separated from his team and was required to submit to a drug test if he ever attempted to return to Major League Baseball; In June 2006, the Commissioner suspended Arizona Diamondbacks pitcher Jason Grimsley for 50 games based on admissions he reportedly made to federal law enforcement officers about his illegal use of performance enhancing substances. The joint drug program did not expressly provide for a suspension under those
9 Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 7 (2002).
circumstances, but as part of a later settlement the Players Association agreed that the suspension was appropriate and could be a precedent in the future; During 2007, the Commissioner’s Office interviewed several players, and to date has suspended two of them, after news articles appeared alleging their past illegal use of performance enhancing substances.
E. The BALCO Investigation Commissioner Selig asked me to conduct this investigation after the publication of Game of Shadows, a book that contained allegations about the illegal use of performance enhancing substances by major league players that were supplied by BALCO and the personal trainer Greg Anderson. Throughout this investigation, a federal criminal investigation related to BALCO was ongoing. On November 15, 2007, former San Francisco Giants outfielder Barry Bonds was indicted for perjury and obstruction of justice based on his grand jury testimony in that investigation. The ongoing criminal investigation, and the resulting unwillingness of many participants to cooperate with me, limited my ability to gather information that was not already
in the public record about the involvement of major league players with BALCO. The information that we did obtain is set forth in Chapter VII.
F. Evidence Obtained of Other Players’ Possession or Use Through the efforts of the United States Attorney’s Office for the Northern District of California and federal law enforcement agencies, we obtained the cooperation of former New York Mets clubhouse employee Kirk Radomski. Radomski was interviewed by me
and members of my investigative staff on four occasions, with federal law enforcement representatives participating in all interviews and his lawyer participating in three of them.
Radomski identified a large number of current or former major league players to whom he said he illegally sold steroids, human growth hormone, or other substances.
Radomski also provided me with a number of documents relating to his transactions with players in Major League Baseball, including copies of deposited checks that he retrieved from his banks, copies of some shipping labels or receipts, his telephone records for two years, and a copy of his address book in the form in which it was seized by federal agents when they executed a search warrant at his home.
We also obtained information from sources other than Radomski about players’ possession or use of performance enhancing substances. These included several former major league players and two former strength and conditioning coaches, some of whom met with us voluntarily; others did so at the request of federal law enforcement officials.
As a result, we gathered sufficient evidence about their alleged illegal possession or use of performance enhancing substances to identify in this report dozens of current or former players in Major League Baseball. Each of the players was invited to meet with me to provide him with information about the allegations against him and give him an opportunity to respond.
Both pitchers and position players are named in this report. Some of those named are prominent, including winners of significant post-season awards. Many played in the World Series or in All-Star games. Others are less well known, and some had only brief careers at the major league level. The players were with clubs spread throughout Major League Baseball, as Radomski’s customers referred their friends and teammates to him as they moved from club to club.
I carefully reviewed and considered all of the information we received about the purchase, possession, or use of performance enhancing substances by Major League Baseball players.
1. Kirk Radomski provided substantial information about the distribution of performance enhancing substances, and in many cases his statements were corroborated by other evidence. He did not, however, observe or participate in the use of performance enhancing substances by any player named in this report, with one exception that is described below.
The corroboration took many forms, including: (a) the admission by eleven players that Radomski had supplied them with performance enhancing substances, as he had said in our interviews of him;10 (b) checks or money orders written to Radomski by some players in appropriate amounts; (c) mailing receipts for shipments of performance enhancing substances by Radomski to some players; (d) statements by other witnesses supporting the allegations of use by some players; (e) the names, addresses, and/or telephone numbers of many players were found in Radomski’s seized address book; (f) telephone records showing calls between Radomski and some players; and (g) a positive drug test.
I did not include in this report the names of three players to whom Radomski said he sold performance enhancing substances: two of them because the players had retired from Major League Baseball by the time of the alleged sales; and one of them because the player admitted that he had purchased and possessed the substances but denied that he had used them and his version of events was corroborated by other credible evidence.
I interviewed Radomski four times (in June, July, October, and November 2007), three times in person, once by telephone. His personal lawyer participated in three of the
10 Two players admitted receipt and possession of illegal performance enhancing substances sold by Radomski but denied they ever used them.
interviews. Federal law enforcement officials and members of my staff participated with me in all of the interviews. No one from the Commissioner’s Office, any club, or the Players Association participated in these interviews.
During each of the interviews, the law enforcement officials warned Radomski that if he made any false statements he would forfeit their commitment to recommend a more lenient sentence and he would face further criminal jeopardy. Before the interviews, Radomski had been debriefed extensively by federal prosecutors and agents. They subsequently confirmed that the information he provided to us in his interviews was consistent with the information he had previously provided to them.
11 In addition, a member of my investigative staff interviewed him by telephone on a fourth occasion in December 2007; his personal lawyer also participated.
During each of the interviews, the law enforcement officials warned him that he faced criminal jeopardy if he made any false statements. With respect to two of the players, McNamee was acting against his financial interest in disclosing this information. Before the interviews, McNamee had been debriefed extensively by federal prosecutors and agents. They subsequently confirmed that the information he provided to us in his interviews was consistent with the information he had previously provided to them.
In some cases, I include statements by club personnel in emails or other documents commenting on a player’s alleged drug use. Those statements are cited as corroboration of other evidence that a player possessed or used performance enhancing substances; they did not serve as the primary basis for any of the decisions I made. No player is identified in this report on the basis of mere suspicion or speculation.
Radomski met with many players while they were in New York, where he lives. Most of his business, however, was conducted by telephone and mail or overnight delivery. He sent drugs to their homes, to hotels, and in some cases to major league clubhouses. He was paid by check, by money order, or in cash.
Even before mandatory random drug testing began in Major League Baseball, Radomski observed players moving away from oil-based steroids that stay in the body for a long time, to water-based steroids that clear the body faster. Because human growth hormone cannot be detected in a urine test, as mandatory random drug testing was implemented many players switched to it even when they concluded that it was less effective than steroids.
A detailed discussion of Radomski’s network of customers, and other players for whom evidence has been obtained of their alleged possession or use of performance enhancing substances, is provided in Chapter VIII of the report.
G. Players’ Use of Substances Purchased from Anti-Aging Centers In February 2007, a government task force executed search warrants on Signature Compounding Pharmacy in Orlando, Florida and other businesses, including several so-called “rejuvenation centers,” exposing another source of illegal performance enhancing substances. Some businesses that describe themselves as anti-aging or rejuvenation centers sell steroids or human growth hormone and arrange for buyers to obtain prescriptions for those substances from corrupt or suspended physicians or even, in some cases, a dentist. The prescriptions are then filled by a compounding pharmacy affiliated with the center and delivered to the buyer either through the mail or at the “clinic.” In a series of news reports during 2007, eight active major league players and eight former players were identified as appearing in the customer records of either anti-aging clinics or compounding pharmacies that are involved in this illegal trade. Those players reportedly purchased steroids, human growth hormone, and other drugs used to counteract the effects of steroid use. Several players mentioned in these news reports admitted that they purchased human growth hormone from an anti-aging clinic or rejuvenation center and claimed that the purchases were to treat an injury or other medical condition. The Food and Drug Administration has never approved the use of human growth hormone to treat an athletic injury, to become more lean, or to improve athletic performance. The use of human growth hormone is a violation of federal law if not for an authorized purpose, even if with a prescription. In any event, based on the news reports it is doubtful that the prescriptions were valid. In the section of this report entitled “Alleged Internet Purchases of Performance
Enhancing Substances By Players in Major League Baseball,” I briefly describe alleged purchases by sixteen players. The information in that section was obtained from public sources, primarily news articles. All of these disclosures arose out of investigations by federal and state law enforcement agencies.
H. Major League Baseball’s Joint Drug Prevention and Treatment Program The joint drug prevention and treatment program was added to the Basic Agreement in 2002. Under that program, testing has been conducted of players in Major League Baseball since 2003, first in the form of anonymous survey testing in 2003, and thereafter in mandatory random testing that now carries with it severe penalties for violations. The program has been amended formally twice since 2002 as the result of negotiations between the Commissioner and the Players Association, and other minor modifications also have been made. As a result, penalties have been increased, the list of prohibited substances has been lengthened, and some improvements in procedures have been made. Adoption of the current program was a positive first step. The information obtained in this investigation suggests that the use of detectable steroids by players in Major League Baseball has declined but the use of human growth hormone has increased. In some respects, however, the program still falls short of current best practices in drug testing for the use of performance enhancing substances. The drug testing programs in all sports, including the Olympics, have evolved over time through a process of trial and error, as the programs were modified to address problems and concerns. In that respect, baseball's program has been like all the others. The challenge now is to take the program to a new and higher level and to then continue the process of improvement to deal with the problems and concerns which cannot be foreseen but which
inevitably will arise. Certain characteristics are now widely recognized as essential to an effective testing program. These are: independence of the program administrator; transparency and accountability; effective, year-round, unannounced testing; adherence to best practices as they develop; due process for athletes; adequate funding; and a robust education program.
Programs based on these principles can more readily adapt to changing circumstances in the ongoing contest between athletes who compete clean and those who do not, although even the strongest program by itself cannot entirely eradicate the use of banned substances. The Major League Baseball joint drug program can be strengthened in several of these areas. Most notably, the program is not administered by a truly independent authority. Although in their latest revisions to the program the parties established an “independent program administrator,” the Commissioner’s Office and the Players Association continue to retain authority over the program administrator and other important issues.
The current program also lacks transparency, an essential attribute to demonstrate the integrity and effectiveness of the program to outside observers. Transparency is most often obtained by issuing periodic reports on a program’s operations, including reporting aggregate data on testing, and by regular audits, neither of which is now done under the joint program.
Concerns have been raised about the collection procedures used, including allegations that some players received advance notice of testing. In Game of Shadows, and in an earlier San Francisco Chronicle article, the authors described a surreptitious recording of a conversation that reportedly occurred in spring 2003 between Greg Anderson and an unidentified person. In that conversation, Anderson reportedly claimed that he would receive notice of upcoming tests between one and two weeks in advance. He also reportedly claimed that testing was “going to be either at the end of May or beginning of June . . .”
I could not obtain a copy of the recording or otherwise confirm that Anderson made these statements, or that he made them before late May 2003 as reported by the authors.
However, records that we obtained from the contractor who administered his tests show that Bonds was tested on May 28 and June 4, 2003. Therefore, if the report of this conversation is accurate Anderson correctly predicted the dates of testing, at least for his client Barry Bonds.
We interviewed the relevant personnel from Comprehensive Drug Testing, Inc., the company responsible for sample collection under the Major League Baseball joint drug program. Those witnesses denied that they provided advance notice of test dates to Bonds or anyone else. CDT witnesses also told us that advance notice of testing dates was never provided to Quest Diagnostics, Inc., the laboratory that processed test samples, so Quest personnel could not have been the source of advance notice to anyone else. A Quest spokesman was reported to have said the same thing in the original news article about the recording.
I also investigated other allegations that some players received advance notice of tests in 2004. In April 2004 federal agents executed search warrants on the two private firms involved in the 2003 survey testing, Comprehensive Drug Testing, Inc. and Quest Diagnostics, Inc.; the warrants sought drug testing records and samples for ten major league players connected with the BALCO investigation. In the course of those searches, the agents seized data from which they believed they could determine the identities of the major league players who had tested positive during the anonymous survey testing.
Shortly after these events, the Players Association initiated discussions with the Commissioner’s Office regarding a possible suspension of drug testing while the federal investigation proceeded. Manfred said the parties were concerned at the time that test results that they believed until then raised only employment issues had now become an issue in a pending criminal investigation. Ultimately, the Commissioner’s Office and the Players Association agreed to a moratorium on 2004 drug testing. While the exact date and length of this moratorium is uncertain, and the relevant 2004 testing records have been destroyed, Manfred stated that the moratorium commenced very early in the season, prior to the testing of any significant number of players. Manfred stated that the Players Association was not authorized to advise its members of the existence of the moratorium.
According to Manfred, the moratorium lasted for a short period. For most players, drug tests then resumed. With respect to the players who the federal agents believed had tested positive during 2003 survey testing, however, the Commissioner’s Office and the Players Association agreed that: (1) the Players Association would be permitted to advise those players of this fact, since that information was now in the hands of the government; (2) the testing moratorium would continue with respect to those players until the Players Association had an opportunity to notify them; and (3) the Players Association would not advise any of the players of the limited moratorium.
Sometime between mid-August and early September 2004, Manfred contacted Orza because the Players Association had not yet notified the players involved. The 2004 season was drawing to a close without those players having been tested because they remained under the moratorium. Manfred said that he pressed Orza to notify the players as soon as possible so that they could be tested. All of the players were notified by early September 2004.
A former major league player stated that in 2003 he was tested as part of the survey testing program. He said that in September 2004, Gene Orza of the Players Association told him that he had tested positive in 2003 and that he would be tested in the next two weeks. Independently, Kirk Radomski told us that this former player had earlier told him the same thing about Orza’s statements shortly after the conversation between Orza and the former player occurred. In addition, the former player Larry Bigbie told us that the same former player had told him the same thing about his conversation with Orza.
Furthermore, according to Bigbie, in 2004 a current player admitted to Bigbie that he also had been told by a representative of the Players Association that he had tested positive for steroids in 2003.
I am not permitted to identify either the former player with whom we spoke or the current player who made the admission to Bigbie because the Commissioner’s Office and the Players Association have concluded that for me to do so would violate the confidentiality provisions of the joint program.
According to the redacted affidavit filed in support of a search warrant sought for Jason Grimsley’s residence, Grimsley told federal agents that he, too, was informed that he had tested positive for anabolic steroids in 2003. The identity of the person who so advised Grimsley is redacted in the public version of the affidavit, and I did not have access to the unredacted version.12
Other players may have received similar notice, since (1) the program required that each player be tested once during the 2004 season, (2) the Commissioner’s Office and the Players Association agreed that, since the government had the names of the players who they believed had tested positive in 2003, those players should be notified and should not be tested in 2004 until that notification had taken place, and (3) that notification did not take place until late August or early September 2004, just weeks before the season ended.
Orza declined my request for an interview.
12 Affidavit of IRS Special Agent Jeff Novitzky in Support of Search Warrant, sworn to on May 31, 2006, ¶ 16.
Officials of the Commissioner’s Office emphasized that the circumstances
described above represented an emergency response to an unforeseen event: a government
investigation that obtained the names of players who had tested positive in the 2003 survey
testing, information that the parties had agreed in advance would be anonymous. Consequently,
they assert that it does not describe the normal operation of the program.
The Players Association objected to my making any reference to this matter in
this report. I offered to include a statement by the Association and they provided me with the
following: Because of certain actions by the Government in 2004 (which led to litigation, much of which has been under seal), the parties were forced to confront a serious threat to the confidentiality and integrity of our program. To combat that threat, and indeed to save the credibility of our program, the parties undertook certain measures in that year only. These were not unilateral actions undertaken by the MLBPA, but actions discussed and agreed upon between the MLBPA and the Commissioner’s Office. Each party was fully aware and in agreement with the steps the other was taking.
The MLBPA believes that, by publishing in this Report anything related to these subjects, Senator Mitchell and the Commissioner’s Office are breaching promises of confidentiality made to the MLBPA and to its members.
I. Recommendations To prevent the illegal use of performance enhancing substances in Major League Baseball, I make a series of recommendations. Some can be implemented by the Commissioner unilaterally; some are subject to collective bargaining and therefore will require the agreement of the Players Association. The recommendations below focus on three principal areas: investigations based
upon non-testing evidence; player education; and further improvements in the testing program. These recommendations are designed to work in combination with one another to more effectively combat performance enhancing substance violations. It bears emphasis that no testing program, standing alone, is enough. Certain illegal substances are difficult or virtually impossible to detect, and law enforcement investigations of Kirk Radomski and compounding pharmacies and anti-aging clinics show that, even in this era of testing, players can continue to use performance enhancing substances while avoiding detection. Indeed, one leading expert has argued that “testing only scratches the surface.” The ability to investigate vigorously allegations of performance enhancing substance violations is an essential part of any meaningful drug prevention program.
First, the Commissioner should create a Department of Investigations, led by a senior executive who reports directly to the president of Major League Baseball, to respond promptly and aggressively to allegations of the illegal use or possession of performance enhancing substances. The success of that official will depend in part upon his interaction with law enforcement officials, who in the course of their own investigations obtain evidence of athletes’ possession or use of illegal substances that, under appropriate circumstances, can be shared with sports leagues, as recent events in both Major League Baseball and other sports have demonstrated.
The Commissioner also should strengthen existing efforts to keep illegal substances out of major league clubhouses. Given the evidence that many players have had steroids and human growth hormone shipped to them at major league ballparks, packages delivered to players through their clubs should be logged and tracked. Clubs also should be required to adopt policies to ensure that allegations of a player’s possession or use of performance enhancing substances are reported promptly to the Department of Investigations.
Second, improved educational programs about the dangers of substance use are critical to any effort to deter performance enhancing substance use. Over the last several years, the Commissioner’s Office and the Players Association have made an increased effort to provide players and some club personnel with educational materials on performance enhancing substances. Some of these efforts have been effective, but we heard criticism from both former players and club personnel about the anti-steroids education programs.
Most of the educational programs we reviewed address the side effects of performance enhancing substance use and the deleterious health effects of long-term use. According to Dr. Jay Hoffman, a former professional athlete and expert in the field, discussions of health risks alone, although important, generally will not deter a player from using these substances because players who consider using performance enhancing substances do not view them as dangerous if used properly. To counter this skepticism, Dr. Hoffman proposes that education about the dangers of performance enhancing substances be combined with education on how to achieve the same results through proper training, nutrition, and supplements that are legal and safe.
Another health risk associated with performance enhancing substances is the unknown nature and origin of the substances. Players need to be aware of the risks associated with buying black market drugs.
The public outcry over the use of performance enhancing substances in professional sports has provided the substance dealer with an opportunity to exploit his relationship with a player. Those players who buy and use illegal performance enhancing substances place their livelihoods and reputations in the hands of drug dealers. Players also should be reminded of their responsibilities as role models to young athletes, who in emulating major league players’ illegal substance use will place themselves at risk.
Third, although it is clear that even the best drug testing program is, by itself, not sufficient, drug testing remains an important element of a comprehensive approach to combatting the illegal use of performance enhancing substances. In Major League Baseball, however, the Commissioner does not have the authority to act unilaterally on drug testing; the agreement of the Players Association is required. The current joint drug program is part of the Basic Agreement that was agreed to in 2006 and will remain in effect until 2011. Any changes to the program therefore must be negotiated with and agreed to by the Players Association. Neither party is obligated to agree to reopen the Basic Agreement to address the program, even though that is what happened in 2005. There is no way for me to know whether that will happen again.
In recognition of the uncertainties associated with both the timing of further action on drug testing and the position of the parties when that action does take place, I set forth in this report the principles that presently characterize a state-of-the-art drug testing program. Every program should be updated regularly to keep pace with constantly changing challenges and best practices. It will be for the clubs and the Players Association to decide when to undertake a fresh review of these issues. When they do, I urge them to incorporate into the Major League Baseball joint drug program the principles described in this report.
The program should be administered by a truly independent authority that holds exclusive authority over its structure and administration. This could be in the form of an independent expert who cannot be removed except for good cause, an independent non-profit corporation, or another structure devised and agreed to by the Players Association and the major league clubs.
The program should be transparent to the public, by allowing for periodic audits of its operations and providing regular reports of aggregate data on testing and test results. The program should include adequate year-round, unannounced testing and employ best practices as they develop. How the program achieves those objectives is best left to a truly independent administrator to decide. To ensure that he can accomplish these objectives, the program should receive sufficient funding. The program should continue to respect the legitimate privacy and due process rights of the players.
***
All of these recommendations are prospective. The onset of mandatory random drug testing, the single most important step taken so far to combat the problem, was delayed for years by the opposition of the Players Association. However, there is validity to the assertion by the Players Association that, prior to 2002, the owners did not push hard for mandatory random drug testing because they were much more concerned about the serious economic issues facing baseball.
To prolong this debate will not resolve it; each side will dig in its heels even further. But it could seriously and perhaps fatally detract from what I believe to be a critical necessity: the need for everyone in baseball to work together to devise and implement the strongest possible strategy to combat the illegal use of performance enhancing substances, including the recommendations set forth in this report.
I was asked to investigate the use of performance enhancing substances by major league players and to report what I found as fairly, as accurately, and as thoroughly as I could. I have done so.
Only the Commissioner is vested with authority to take disciplinary action. Any such determination is properly for the Commissioner to make, subject to the players’ right to a hearing.
I urge the Commissioner to forego imposing discipline on players for past violations of baseball’s rules on performance enhancing substances, including the players named in this report, except in those cases where he determines that the conduct is so serious that discipline is necessary to maintain the integrity of the game. I make this recommendation fully aware that there are valid arguments both for and against it; but I believe that those in favor are compelling.
First, 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 that requires us to look back, as this report necessarily does, all efforts should now be directed to the future. That is why the recommendations I make are prospective. Spending more months, or even years, in contentious disciplinary proceedings will keep everyone mired in the past.
Second, most of the alleged violations in this report are distant in time. For current players, the allegations of possession or use are at least two, and as many as nine years old. This covers a period when Major League Baseball made numerous changes in its drug policies and program: it went from limited probable cause testing to mandatory random testing; since 2002, the penalties under the program have been increased several times; human growth hormone was not included as a prohibited substance under the joint drug program until 2005. Under basic principles of labor and employment law, an employer must apply the policies in place at the time of the conduct in question in determining what, if any, discipline is appropriate.
Until 2005, there was no penalty for a first positive drug test under the joint drug program, although the Commissioner has always had the authority to impose discipline for “just cause” for evidence obtained outside of the program.13
Third, and related, more than half of the players mentioned in this report are no longer playing in Major League Baseball or its affiliated minor leagues and thus are beyond the authority of the Commissioner to impose discipline.
Fourth, I have reported what I learned. But I acknowledge and even emphasize the obvious: there is much about the illegal use of performance enhancing substances in baseball that I did not learn. There were other suppliers and there have been other users, past and present. Many of those named in this report were supplied by Kirk Radomski. Yet plainly he was not the only supplier of illegal substances to major league players. Radomski himself said that some players told him they had other sources. And the evidence demonstrates that a number of players have obtained performance enhancing substances through so-called “rejuvenation centers” using prescriptions of doubtful validity.
Fifth, the Commissioner promised, and I agreed, that the public should know what I learned from this investigation. Perhaps the most important lesson I learned is that this is a serious problem that cannot be solved by anything less than a well-conceived, well-executed, and cooperative effort by everyone involved in baseball. From my experience in Northern Ireland I learned that letting go of the past and looking to the future is a very hard but necessary step toward dealing with an ongoing problem. That is what baseball now needs.
13 It should be noted, however, that the rule that there would be no discipline for the first positive test was part of the quid pro quo for the Players Association’s agreement to mandatory random drug testing. Indeed, the Basic Agreement protects a “First Positive Test Result” from discipline but does not similarly protect the first use of steroids from discipline. The primary evidence of wrongdoing in this report was not obtained from baseball’s testing program but rather from an independent investigation.
The Commissioner should give the players the chance to make a fresh start, except where the conduct is so serious that he must act to protect the integrity of the game. This would be a tangible and positive way for him to demonstrate to the players, to the clubs, to the fans, and to the general public his desire for the cooperative effort that baseball needs to deal effectively with this problem. It also would give him a clear and convincing basis for imposing meaningful discipline for future violations.
J. Conclusions There has been a great deal of speculation about this report. Much of it has focused on players’ names: how many and which ones. After considering that issue very carefully I concluded that it is appropriate and necessary to include them in this report. Otherwise I would not have done what I was asked to do: to try to find out what happened and to report what I learned accurately, fairly, and thoroughly. While the interest in names is understandable, I hope the media and the public
will keep that part of the report in context and will look beyond the individuals to the central conclusions and recommendations of this report. In closing, I want to emphasize them:
only way this cloud will be removed from the game. The adoption of the recommendations set forth in this report will be a first step in that direction.
REPORT TO THE COMMISSIONER OF BASEBALL OF AN INDEPENDENT INVESTIGATION INTO THE ILLEGAL USE OF STEROIDS AND OTHER PERFORMANCE ENHANCING SUBSTANCES BY PLAYERS IN MAJOR LEAGUE BASEBALL
I. Scope of this Investigation
The powers of the Commissioner of Baseball are established by contract. The
Major League Constitution is the governing agreement among the thirty major league clubs,
under which the powers of the Commissioner are enumerated. Article II, section 2 of that
agreement grants the Commissioner the power:
. . . [t]o investigate . . . any act, transaction or practice charged, alleged or suspected to be not in the best interests of the national game of Baseball, with authority to summon persons and to order the production of documents and in case of refusal to appear or produce, impose such penalties as are hereinafter provided.
The Commissioner also is empowered “ . . . [t]o determine, after investigation, what preventive,
remedial or punitive action is appropriate” against either major league clubs or individuals.14
The Commissioner’s “best interests” powers do not extend “to any matter relating to the process
of collective bargaining” between the clubs and the Major League Baseball Players Association.
Because the Commissioner’s powers are granted by contract, only persons who
are subject to the provisions of that agreement – those employed in Major League Baseball and
affiliated organizations (such as clubs in the affiliated minor leagues) – are subject to the
Commissioner’s powers. Unlike a governmental body, therefore, the Commissioner does not
14 Major League Const., Art. II, §§ 2(b), (c) (2003). The “best interests of baseball” provision is essentially unchanged from the provision under which the powers were granted to the first Commissioner of Baseball, Judge Kenesaw Mountain Landis. See New Major League Agreement, Art. I, § 2 (1921). For players, the permissible discipline includes temporary or permanent ineligibility, or a fine. For clubs, permissible penalties include exclusion from major league meetings, a fine of up to $2 million or denial of certain player selection rights. For club officials, the Commissioner may levy a fine of up to $500,000. In all cases, the Commissioner also can take “such other actions as the Commissioner may deem appropriate.” Major League Const., Art. II, § 3.
have the power to compel testimony or the production of relevant evidence from third parties, including former players.15
Acting pursuant to his enumerated powers, on March 30, 2006, Commissioner Selig appointed me to conduct an investigation:
. . . to determine, as a factual matter, whether any Major League players
associated with [the Bay Area Laboratory Co-Operative] or otherwise
used steroids or other illegal performance enhancing substances at any
point after the substances were banned by the 2002-2006 collective
bargaining agreement.16 The Commissioner said that he was prompted to ask me to conduct this investigation by the publication of the book Game of Shadows, which “amplified” allegations regarding the relationship between certain players and Greg Anderson, a personal trainer, and with BALCO, an enterprise whose principals were convicted of supplying illegal steroids and other substances to professional athletes in a number of sports.17
The Commissioner also acknowledged that conduct “before the effective date of the 2002 Basic Agreement” could be relevant, and he authorized me, if necessary, “to expand the investigation and to follow the evidence wherever it may lead.”18 I welcomed this latitude as necessary to ensure that my findings were reached in the proper context and that I would not be required to request additional investigative authority from the Commissioner once the investigation began.19
15 The Players Association is only the bargaining representative for active major league players.
16 Press Release, Major League Baseball Office of the Commissioner, Statement of Commissioner Allan H. Selig (Mar. 30, 2006).
17 Id. 18 Id.
19 My investigation did not include an examination of the use of amphetamines by players in Major League Baseball. The allegedly widespread use of amphetamines in baseball, rumored
As stated above, the Commissioner’s authority under the “best interests of
baseball” provision does not apply to any matter “related to the process of collective bargaining.” In addition, as a party to the collective bargaining agreement between the Players Association and the thirty major league clubs, the Commissioner is bound by the terms of that agreement. As will be discussed further below, the subject of drug testing for any substance has been determined by baseball arbitrators to be a mandatory subject of collective bargaining. Since the 2002 Basic Agreement, the major league clubs and the Players Association have been parties to Major League Baseball’s Joint Drug Prevention and Treatment Program, which contains detailed provisions that affect the Commissioner’s ability to act in some instances. Other provisions of the Basic Agreement also are implicated by an investigation of this nature, including that the Players Association receive prior notice of any request for an interview of a current major league player.
for decades, is a problem distinct from more recent allegations that players have used steroids and other substances with anabolic or similar effects to gain an unfair competitive advantage. I was asked to examine the latter question, and I am comfortable that a thorough examination did not require me to look into the additional problems posed by amphetamines use, serious as those problems might be. Moreover, an expansion of the scope of this investigation to include amphetamines use inevitably would have increased the already significant time that was needed to complete this investigation and diluted its focus, which I believe would have hampered whatever improvements might be achieved as a result of this report.
II. Major League Baseball and Other Sports Must Combat the Illegal Use of Performance Enhancing Substances The illicit use of anabolic steroids and other performance enhancing substances by players in Major League Baseball is a problem that must be addressed, for a number of reasons. First, steroids, human growth hormone, and similar substances pose significant health risks to those who use them. This is especially true of illegal users, who often obtain dubious products (contaminated or otherwise) from black market sources, self-administer these substances with no medical supervision based on advice gleaned from internet sites and fellow bodybuilders, and use these substances in amounts that far exceed those that are prescribed by physicians for legitimate uses. Second, beyond the dangerous effects on players themselves, the public perception that players in Major League Baseball use these substances contributes to their use by young athletes, who in turn cause themselves great physical harm. Adolescents might be at even greater risk of harm than adult athletes from the use of these substances because the intense hormonal changes of adolescence can exacerbate their adverse psychiatric side effects.20 Third, the illegal use of anabolic steroids, human growth hormone, and similar drugs poses a significant threat to the integrity of the game of baseball. The widespread use of these substances raises questions about the validity of records and their comparability across different eras. Because such use is in violation of law, professional baseball players who do so can place themselves in a position of vulnerability to drug dealers who might use their access and
knowledge of violations of law to their own advantage, through threats intended to affect the outcome of baseball games or otherwise.
20
Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 307 (2005) (statement of Dr. Kirk Brower).
Finally, and very important from my perspective, the illegal use of these
substances by some players is unfair to the majority of players who do not use them. These players have a right to expect a level playing field where success and advancement to the major leagues is the result of ability and hard work. They should not be forced to choose between joining the ranks of those who illegally use these substances or falling short of their ambition to succeed at the major league level.
A. Health Risks from Abuse of Steroids and Other Widely Used Performance Enhancing Substances
Anabolic steroids and human growth hormone can have serious negative effects on the human body.
1. Adverse Effects of Anabolic Steroid Abuse
The term “steroids,” when used in the context of athletic performance enhancing drugs, refers to a class of drugs more precisely known as anabolic androgenic steroids.21 Anabolic steroids are natural or synthetic versions of testosterone, the primary male sex hormone.22 Steroids foster the anabolic process (muscle growth and the increase of muscle mass) and also limit catabolism (the breakdown of protein in muscle cells). As a result, steroid users can increase the muscle gain resulting from strenuous exercise and maximize the impact of a high protein diet. In addition, because of their anti-catabolic effect, steroids reduce the soreness that normally results from strenuous exercise, which allows an athlete using steroids to
21 The two primary characteristics of these drugs are (1) “anabolic” in that they induce muscle growth and increased muscle mass, and (2) “androgenic” because they promote development of male sexual characteristics. J.D. Wilson, 9 Androgen Abuse by Athletes, Endocrine Revs. 181-99 (1988); see also Will Carroll and William L. Carroll, The Juice: The Real Story of Baseball’s Drug Problems 10, 14, 47-52 (Ivan R. Dee 2005).
22 A.M. Matsumoto, Clinical Use and Abuse of Androgens and Antiandrogens, Principles and Practice of Endocrinology and Metabolism, 1181-1200 (Kenneth L. Becker ed., 3d ed. 2001).
exercise more frequently, even daily. At least until a given anabolic steroid loses its efficacy for
the user, larger doses generally result in more rapid gains in lean muscle mass and strength.23
The adverse side effects of anabolic steroids used at the levels necessary to
achieve these effects can be significant, however. In part, this is because the doses of anabolic
steroids typically used by athletes are much higher than those that would be prescribed for any
legitimate therapeutic use, between 5 and 30 times greater than the level of testosterone naturally
produced by the body.24
Advocates of illicit steroid use by athletes argue that the adverse side effects have
been exaggerated, focusing their arguments on the limited clinical trial data available.25 Medical
ethics have prevented the scientific study of the massive doses of steroids taken by athletes using
these drugs to obtain an athletic advantage.26 Despite this limitation, however, there are
sufficient data to conclude that there is an association between steroid abuse and significant
adverse side effects.27 These side effects include:
23 See S. Bhasin, et al., The Effects of Supraphysiologic Doses of Testosterone on Muscle Size and Strength in Normal Men, 335 New Eng. J. of Med. 1-7 (1996); S. Bhasin, et al., Older Men are as Responsive as Young Men to the Anabolic Effects of Graded Doses of Testosterone on the Skeletal Muscle, 90 J. of Clinical Endocrinology & Metabolism 678-88 (2005).
24 J. Hoffman and N. Ratamess, Medical Issues Associated with Anabolic Steroid Use: Are They Exaggerated?, 5 J. of Sports Science & Med. 182, 183 (2006) (citing P.J. Perry, et al., Anabolic Steroid Use in Weightlifters and Bodybuilders: An Internet Survey of Drug Utilization, 15 Clinical J. of Sports Med. 326-30 (2005)).
25 See, e.g., Daniel Duchaine, Underground Steroid Handbook II 60 (1989); W. Nathaniel Phillips, Anabolic Reference Guide 123 (6th ed. 1991); William Llewellyn, Anabolics 2007 32 (6th ed. 2007).
26 See C.J. Bagatell and W.J. Bremner, Androgens in Men – Uses and Abuses, 334 New Eng. J. of Med. 707-14 (1996); Hoffman and Ratamess, supra note 24, at 183-84.
27 For an overview of the current state-of-the-science, see Hoffman and Ratamess, supra note 24, at 182-93, and F. Hartgens and H. Kuipers, Effects of Androgenic-Anabolic Steroids in Athletes, 34(8) Sports Med. 513-54 (2004). For additional references related to side effects of steroid use, see Bagatell and Bremner, supra note 26, at 707, Matsumoto, supra note 22, at 11811200, and J.W. Lenders, et al., Deleterious Effects of Anabolic Steroids on Serum Lipoproteins,
Psychiatric Effects: studies have found a strong link between steroid abuse and serious adverse psychiatric symptoms, including mania, hypomania, and severe depression. Steroid users also appear to be at higher risk of suicide, especially during withdrawal.28 Cardiovascular Effects: anecdotal evidence suggests a possible connection between steroid abuse and heart attacks in young and middle-aged bodybuilders. Steroid abuse has been tied more definitively to adverse effects on cholesterol levels, and a connection is suspected between steroid abuse and an enlarged heart. Liver Damage: The use of oral anabolic steroids has been tied to liver injury, including impaired liver functionality, cholestasis (impaired bile drainage), jaundice, an elevated risk of liver tumors and liver cancer, and peliosis hepatis (the life-threatening development of blood-filled cysts in the liver). Abnormal liver function might be reversible, but recurrent use of steroids at high doses can lead to serious liver disorders in the long term. Harm to Reproductive System: Anabolic steroids can have significant adverse effects on the reproductive system as a result of their interference with the body’s natural production of testosterone. In men, extended steroid abuse can result in hypogonadism, in which the body ceases the natural production of testosterone. Steroid abuse also can result in severe shrinkage of the testes and a reduction in
Blood Pressure, and Liver Function in Amateur Bodybuilders, 9 Int’l J. of Sports Med. 19-23 (1988).
28 Adolescents might be especially vulnerable because they are “already subject to normal surges of sex hormones during puberty, which are associated with expected, albeit sometimes problematic changes in mood and behavior.” Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 145 (2005) (statement of Dr. Kirk Brower).
sperm count to minimal levels, resulting in infertility. Even when reversible, the effects of steroid abuse on testosterone production and fertility can take many months or longer. In women, steroids suppress ovarian function and can impair fertility. Musculoskeletal Effects: Steroid abuse may cause stunted growth in adolescents due to the premature fusion of growth plates of the long bones in the legs and arms. There also appears to be a connection between steroid use and an increased risk of tendon tears in athletes. Other Adverse Effects in Men: In men, steroid abuse can cause severe acne, excess stimulation of sebaceous glands on the face and body, an increase in body hair, and acceleration of male pattern balding. Enlargement of the prostate gland can occur. In addition, gynecomastia (male breast enlargement) occurs in some male steroid abusers as the body converts excess testosterone or testosterone precursors to estrogenic compounds. Some steroid abusers take anti-estrogen drugs such as tamoxifen or raloxifene to block the effect of the excess estrogen. Other Adverse Effects in Women: The hormonal imbalance between estrogen and androgens caused by steroids can cause breast shrinkage, acne, facial and body hair growth, loss of scalp hair, and balding. Steroid use also causes enlargement of the larynx causing a deepening of the voice, and enlargement of the clitoris. Several of these virilizing effects can be permanent. Potential for Addiction: A report by the National Institute on Drug Abuse concluded that some steroid users exhibit addictive behaviors identical to symptoms of addiction to other drugs of abuse, including “withdrawal symptoms ‘such as mood swings, fatigue, restlessness, loss of appetite, insomnia, reduced
sex drive, and the desire to take more steroids.’”29
2. Adverse Effects of Human Growth Hormone
Human growth hormone is a protein hormone produced naturally in the body by
the anterior pituitary gland. It is essential for growth and development and is responsible for
regulation of adult height, muscle and organ growth, and has a role in sexual development.
Since 1985, it has been available in a synthetic form called recombinant human growth hormone.
Human growth hormone acts primarily by stimulating the liver to produce insulin-like growth
factor (IGF-1), the more potent growth stimulant. Both appear to have anabolic effects in adults
in that they enhance protein synthesis and protein turnover in muscles.30
A number of studies have shown that use of human growth hormone does not
increase muscle strength in healthy subjects or well-trained athletes.31 Athletes who have tried
human growth hormone as a training aid have reached the same conclusion. The author of one
29 2006 Steroids Report, Steroids Working Group, United States Sentencing Commission, at 25 (Mar. 2006) (quoting Nat’l Inst. on Drug Abuse, Anabolic Steroid Abuse, NIH Pub. No. 003721, at 6 (Apr. 2000)).
30 C. Ehrnborg, et al., Supraphysiologic Growth Hormone: Less Fat, More Extracellular Fluid but Uncertain Effects on Muscles in Healthy, Active Young Adults, 62 Clinical Endocrinology 449-457 (2005); J. Gibney, et al., Growth Hormone and Testosterone Interact Positively to Enhance Protein and Energy Metabolism in Hypopituitary Men, 289 Am. J. of Physiology-Endocrinology & Metabolism E266-71 (2005).
31 R. Deyssig, et al., Effect of Growth Hormone Treatment on Hormonal Parameters, Body Composition and Strength in Athletes, 128 Acta Endocronologica 313-18 (1993); K.E. Yarasheski, et al., Effect of Growth Hormone and Resistance Exercise on Muscle Growth in Young Men, 262 Am. J. of Physiology-Endocrinology & Metabolism E261-67 (1992);
K.E. Yarasheski, et al., Short-term Growth Hormone Treatment Does Not Increase Muscle Protein Synthesis in Experienced Weight Lifters, 74 J. of Applied Physiology 3073-76 (1993). A more recent study concluded that high doses of growth hormone did significantly reduce body fat in young adults but did not have any effect on muscle mass. M.J. Rennie, Claims for the Anabolic Effects of Growth Hormone: A Case of the Emperor’s New Clothes? 37 Brit. J. of Sports Med. 100-05 (2003).
book targeted at steroid abusers observed that “[t]he most curious aspect of the whole situation is that I’ve never encountered any athlete using HGH to benefit from it, and all the athletes who admit to having used it will usually agree: it didn’t/doesn’t work for them.”32
The primary attraction of human growth hormone for athletes seeking performance enhancing effects appears to be that it is not detectable in any currently available drug test.33 In addition, because human growth hormone stimulates growth in most body tissues, athletes use it to promote tissue repair and to recover from injury.34
As is the case with steroids, however, use of human growth hormone is associated with potentially severe adverse side effects. The most remarked upon of these are acromegaly, the overgrowth of bone and connective tissue that leads to protrusion of the jaw and eyebrow bones, and gigantism, the overgrowth of the entire body in children or adolescents. (In adults, gigantism cannot occur because growth zones in bones have sealed).35 Other possible side effects include cancer, impotence in men, menstrual irregularities in women, cardiomyopathy, hypothyroidism, and arthritis.36
32 Duchaine, Underground Steroid Handbook II, at 74; see also Phillips, Anabolic Reference Guide, at 39; William Llewellyn, Anabolics 2007 501.
33 C.M. McHugh, et al., Challenges in Detecting the Abuse of Growth Hormone in Sport, 51 Clinical Chem. 1587-93 (2005).
34 M. Hedström, et al., Positive Effects of Short-Term Growth Hormone Treatment on Lean Body Mass and BMC After Hip Fracture, 75 Acta Orthopaedica Scandinavica 394-401 (2004).
35 See George Fan, Comment, Toward a Rational Drug Policy: Anabolic Steroid and Human Growth Hormone Abuse: Creating an Effective and Equitable Ergogenic Drug Policy, 1994 U. Chi. Legal F. 439, 455-56 (1994) (citing H.A. Haupt, Anabolic Steroids and Human Growth Hormone, 21 Am. J. of Sports Med. 468, 471 (1993)).
36 Id.; see Import Alert No. 66-71, Food & Drug Administration, Detention Without Physical Examination of Human Growth Hormone (HGH), also known as Somatropin (Jan. 23, 2007).
Additional risks arise from using human growth hormone that has been fabricated in compounding pharmacies, often using undiluted human growth hormone of unknown or questionable origin. Before recombinant human growth hormone was introduced, for example, HGH was derived from cadavers and some users were diagnosed with Creutzfeldt-Jakob syndrome, the human counterpart of mad-cow disease.37 As with steroids, multiple use of needles to self-administer HGH carries the risk of infections with Hepatitis C, HIV, and other serious diseases.
Finally, it appears that insulin is often used by athletes in combination with human growth hormone in an attempt to achieve a synergistic effect. This can give rise to severe medical risks caused by resulting precipitous drops in glucose levels.38
B. Threat to the Integrity of Baseball Posed by the Illegal Use of Performance Enhancing Substances In initiating this investigation, Commissioner Selig recognized that baseball “is America’s pastime because of the trust placed in this sport by its fans.” The alleged illegal use of anabolic steroids and other performance enhancing substances by players in Major League Baseball “is a matter of integrity” that calls for “an impartial, thorough review” to confront this problem head on.39 Commissioner Selig’s comments in this regard echo similar sentiments expressed for decades by his predecessors as Commissioner of Baseball.
Rule 21 of the Major League Rules prohibits gambling on baseball and other acts (such as rewarding opponents) that, since the “Chicago Black Sox” scandal of 1919, have been
37 S.D. Frasier and T.P. Foley, Jr., Creutzfeldt-Jakob Disease in Recipients of Pituitary Hormones, 78 J. of Clinical Endocrinology & Metabolism 1277-79 (1994).
38 P.H. Sonksen, Insulin, Growth Hormone, and Sport, 170 J. of Endocrinology 13-25 (2001).
39 Press Release, Major League Baseball Office of the Commissioner, Statement of Commissioner Allan H. Selig (Mar. 30, 2006).
recognized as “cheating” that can affect the integrity of the game.40 But cheating is a broader
and more nuanced activity than the limited prohibitions of Rule 21 suggest. In 1987, Bart
Giamatti, the former president of Yale University who served as president of the National
League and later as Commissioner of Baseball, observed that:
. . . acts of cheating are intended to alter the very conditions of play to favor one person. They are secretive, covert acts that strike at and seek to undermine the basic foundation of any contest declaring the winner – that all participants play under identical rules and conditions. Acts of cheating destroy that necessary foundation and thus strike at the essence of a contest. They destroy faith in the games’ integrity and fairness; if participants and spectators alike cannot assume integrity and fairness, and proceed from there, the contest cannot in its essence exist.41
The illegal use of performance enhancing substances fits Giamatti’s definition of
cheating precisely. Users of these substances act in secret, in violation of federal law, baseball
policy and, since 2002, its collective bargaining agreement. It is the intention of these players to
gain an advantage over other players, whether or not such an advantage actually is obtained as a
result. The problem of performance enhancing substance use in baseball has shaken the faith of
many baseball fans in the integrity and fairness of the contest before them and in the records that
have been achieved during what has come to be known as baseball’s “steroids era.”
The well-known commentator George Will recently observed:
Drugs enhance performance by devaluing it when they unfairly alter the conditions of competition. Lifting weights and eating spinach enhance the body’s normal functioning; many chemical intrusions into the body can jeopardize the health of the body and mind, while causing both to behave abnormally.
Athletes who are chemically propelled to victory do not merely overvalue winning, they misunderstand why winning is properly valued. Professional athletes stand at an apex of achievement, but their
40 See Major League Rules, Rule 21.
41 A. Bartlett Giamatti, Decision in the Appeal of Kevin Gross, in A Great and Glorious Game: Baseball Writings of A. Bartlett Giamatti 66, 72-73 (Kenneth Robson, ed., 1998).
achievements are admirable primarily because they are the products of a lonely submission to a sustained discipline of exertion. Such submission is a manifestation of good character. . . . Drugs that make sport exotic, by radical intrusions into the body, drain sport of its exemplary power by making it a display of chemistry rather than character. In fact, it becomes a display of some chemists’ virtuosity and some athletes’ bad character.42
Former Commissioner Fay Vincent told me that the problem of performance
enhancing substances may be the most serious challenge that baseball has faced since the 1919
Black Sox scandal. The illegal use of anabolic steroids and similar substances, in Vincent’s
view, is “cheating of the worst sort.” He believes that it is imperative for Major League Baseball
to “capture the moral high ground” on the issue and, by words and deeds, make it clear that
baseball will not tolerate the use of steroids and other performance enhancing drugs. Similarly,
the executive director of the Players Association, Don Fehr, has said:
Simply put, [the] Major League Players Association does not condone or support use by players, or by anyone else, of any unlawful substance or condone the unlawful use of any substance legal for certain purposes . . . The use of any illegal substance is wrong.43
Illegal drug use poses practical threats to the integrity of the game, not just a
moral dilemma. In attempting to come to grips with a serious epidemic of cocaine use in
baseball in the 1980s, former Commissioner Peter Ueberroth identified how the integrity of
baseball can be jeopardized by drug use by major league players. In a 1985 memorandum to the
major league clubs implementing a revised drug policy in baseball, he wrote:
Our other principal concern is the maintenance of the integrity of the game. It is most important that all of us in Baseball and our fans have the fullest confidence in our game. Drug involvement or the suspicion of drug involvement is inconsistent with maintaining that essential goal.
42 George F. Will, Barry Bonds’ Enhancement, Newsweek, May 21, 2007, at 82.
43
Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 307 (2005) (statement of Donald M. Fehr, executive director & general counsel, Major League Baseball Players Association).
At whatever level, illegal drug use inevitably involves contact with criminals. In the sports world, this connection will just as inevitably involve gambling. . . . The knowledge that a player . . . uses drugs is a fact which illegal gamblers clearly want to know. Drug dealers who supply Baseball personnel can dilute a drug or combine it with other substances so as to affect performance and could ultimately place the user in a position of dependence upon both the drug and its source of supply. The results, of course, could be devastating.44
Finally, and perhaps most important, the illegal use in baseball of steroids and
other performance enhancing substances victimizes the majority of players who do not use those
substances. A September 2000 study by the National Center on Addiction and Substance Abuse
observed that: ‘Clean’ athletes face three choices: (1) compete without performance-enhancing substances, knowing that they may lose to competitors with fewer scruples; (2) abandon their quest because they are unwilling to use performance-enhancing substances to achieve a decisive competitive advantage; or (3) use performance-enhancing substances to level the playing field.45
We heard from many former players who believed it was grossly unfair that some players were
using performance enhancing substances to gain an advantage. One former player told us that
one of the “biggest complaints” among players was that a “guy is using steroids and he is taking
my spot.”
Another former player noted the unfairness, until 2004, that arose from the fact
that minor league players were subject to mandatory random testing while players who were on
the 40-man rosters of major league clubs were exempt (even if playing in the minor leagues):
“Forty man [roster] guys already have all of the [major league] club advantages, and then they
could use steroids . . . it was not a level playing field.”
44 Memorandum from Commissioner Peter V. Ueberroth to All Clubs Re: Baseball’s Drug Education & Prevention Program, dated May 14, 1985, at 1.
45 National Center on Addiction and Substance Abuse at Columbia University, Winning at Any Cost, at 3 (Sept. 2000).
As the former player Todd Zeile told USA Today in a 2002 article discussing the prevalence of steroids in the game at that time:
The sad part is that the issues I hear discussed are whether (using steroids)
is taking away from the level playing field or whether there are long term
effects to this stuff. I never hear anybody talking about the morality or the
ethics or the integrity of the game. It’s cheating in every sense.46
Zeile’s views might be held by a largely silent majority of players. The same 2002 USA Today article reported that 79% of active players at the time were in favor of drug testing.47 When survey testing was conducted in 2003 pursuant to baseball’s new collective bargaining agreement, some players reportedly initially resisted submitting to drug tests because they knew that their refusal to submit to a test would be counted as a positive for steroid use and they wanted at least 5% of players surveyed to test positive so that random testing would be implemented beginning the next season.
C. The Effects on Young Athletes The youth of this country and other countries model their behavior after prominent athletes. “Athletes are second only to parents in the extent to which they are admired
by children,” yet a Kaiser Family Foundation study found that over half of the youth surveyed believed that “it is common for famous athletes to use steroids or other banned substances in order to get an edge on the competition.”48
If Major League Baseball players send a message that the illegal use of performance enhancing drugs is acceptable, more young athletes will use these substances as they emulate these prominent figures. This common sense conclusion is well supported by the
46 Mel Antonen, Steroids: Are they worth it?, USA Today, July 8, 2002, at A1.
47 Id.
48 National Center on Addiction and Substance Abuse at Columbia University, Winning
at Any Cost, at 2 (Sept. 2000).
facts. After the Associated Press reported in August 1998 that Mark McGwire was using androstenedione, a steroid precursor that was legal at the time, sales of that supplement increased by over 1,000%.49 McGwire may not have wanted to be a role model, but he was. According to the National Institute on Drug Abuse, by 2001, 8% of male high school seniors had used andro within the prior year.50
Some estimates appear to show a recent decline in steroid use by high school students; they range from 3 to 6 percent.51 But even the lower figure means that hundreds of thousands of high school-aged young people are still illegally using steroids. It’s important to devote attention to the Major League Baseball players who illegally used performance enhancing substances. It’s at least as important, perhaps even more so, to be concerned about the reality that hundreds of thousands of our children are using them. Every American, not just baseball fans, ought to be shocked into action by that disturbing truth. The recent decline is welcome, but we cannot be complacent.
Don Hooton, whose son committed suicide after abusing anabolic steroids, created the Taylor Hooton Foundation for Fighting Steroid Abuse. In 2005 congressional testimony, Mr. Hooton said:
I believe the poor example being set by professional athletes is a major catalyst fueling the high usage of steroids amongst our kids. Our kids look up to these guys. They want to do the things the pros do to be successful.
***
49 Anita Manning, Kids: Steroids Don’t Mix, USA Today, July 9, 2002, at C1.
50 National Institute on Drug Abuse, Monitoring the Future: Nat’l Survey Results on Drug Use, 1975-2006, Vol. 1, at 23 (2006).
51 Id., at 44 (2006); Centers for Disease Control and Prevention, National Youth Risk Behavior Survey: 1991-2003: Trends in the Prevalence of Marijuana, Cocaine and Other Illegal Drug Use (2004).
. . . our kids know that the use of anabolic steroids is high amongst professional athletes. They don’t need to read Mr. Canseco’s new book to know that something other than natural physical ability is providing many of you with the ability to break so many performance records that provides you with the opportunity to make those millions of dollars.
Our youngsters hear the message loud and clear, and it’s wrong. “If you would want to achieve your goal, it’s OK to use steroids to get you there, because the pros are doing it.” It’s a real challenge for parents to overpower the strong message that’s being sent to our children by your behavior.52
52
Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 307 (2005) (statement of Donald M. Hooton, president & director, Taylor Hooton Foundation). Major League Baseball has made a contribution to the Taylor Hooton Foundation, and the Foundation runs programs at major league ballparks.
III. The Governing Laws and Baseball Policies Regarding Possession or Use of Performance Enhancing Substances There is a widespread misconception that the use of steroids and other performance enhancing substances, such as human growth hormone, was not prohibited in Major League Baseball before the inclusion of the joint drug program in the 2002 Basic Agreement. In fact, as early as 1991 baseball’s drug policy expressly prohibited the use of “all illegal drugs and controlled substances, including steroids or prescription drugs for which the individual … does not have a prescription.”53 Even before then, however, the use of any prescription drug without a valid prescription was prohibited in baseball, and even earlier under federal law. In 1971, baseball’s drug policy required compliance with federal, state, and local drug laws and directed
baseball’s athletic trainers that anabolic steroids should only be provided to players under a physician’s guidance.54
A. Laws Regarding Performance Enhancing Substances Since 1938, the Federal Food, Drug, and Cosmetic Act has prohibited distribution
of all prescription drugs except when a physician, based upon an individualized determination of a proper course of treatment, has authorized use of a drug by a patient under the physician’s supervision.55
In 1970, in reaction to a perceived epidemic of drug abuse in the United States, Congress enacted the Controlled Substances Act, which among other things established criminal
53 Memorandum from Francis T. Vincent, Jr. to All Major League Clubs Re: Baseball’s Drug Policy and Prevention Program, dated June 7, 1991, at 2.
54 Memorandum from Major League Baseball Office of the Commissioner to Administrative Officials of Major League Baseball Clubs Re: Drug Education and Prevention Program, dated Apr. 5, 1971, at 2.
55 Federal Food, Drug, and Cosmetic Act, c. 675, 52 Stat. 1040 (codified as amended at 21 U.S.C. § 353(b)(1)(B) (2004)).
penalties for drug offenses.56 The act created five schedules of controlled substances that categorized pharmaceuticals and drugs of abuse based on their “potential for abuse, accepted medical utility, and safety of use under medical supervision.” 57 The categories ranged from Schedule I, which was reserved for drugs such as heroin that have “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety,” to Schedule V, for drugs that have a “currently accepted medical use” and a “low potential for abuse.”58
More recently, “[i]n recognition of the fact that illegal drug trafficking in anabolic steroids and human growth hormone was becoming larger in scope and presenting an ever-increasing health risk to young athletes, Congress addressed the issue with two amendments . . . , first in 1988 and then later in 1990.”59 The 1988 amendment added a provision making “the distribution of anabolic steroids illegal unless (1) it was done pursuant to the order of a physician, and (2) it was for the purpose of treating a disease.”60
The 1990 amendment, called the Anabolic Steroids Control Act of 1990, imposed more stringent controls with higher criminal penalties for offenses involving the illegal
56 Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (1970) (codified as amended in scattered sections of 21 U.S.C.); see Allan H. Selig and Robert D. Manfred, Jr., The Regulation of Nutritional Supplements in Professional Sports, 15 Stan. L. & Pol’y Rev. 35, 37 (2004) (citing Annalise Smith, Comment, Marijuana as a Schedule I Substance: Political Ploy or Accepted Science?, 40 Santa Clara L. Rev. 1137, 1146 (2000)).
57 Selig & Manfred, supra note 56, at 37.
58 21 U.S.C. § 812 (2000); see Selig & Manfred, supra note 56, at 37.
59 U.S. Department of Justice, United States Attorney Manual, Tit. 4, ch. 19 (Human Growth Hormone/Steroids Statutory Overview).
60 Id.; see 1988 Anti-Drug Abuse Amendments, Pub. L. No. 100-690, 102 Stat. 4181 (1988).
distribution of anabolic steroids and human growth hormone.61 That enactment reclassified
anabolic steroids as Schedule III controlled substances, effectively raising penalties for their
illegal possession or distribution to levels similar to those applicable to narcotics.62
In addition, the unlawful distribution of human growth hormone was classified as
a felony punishable by up to five years imprisonment (or up to ten years imprisonment for
distribution to individuals under the age of 18). Those penalties also applied to distribution of
human growth hormone for a use other than treatment of a disease or as otherwise expressly
approved by the Food and Drug Administration.63 Human growth hormone has never been
approved by the FDA for cosmetic, anti-aging, or athletic performance purposes.64 Human
growth hormone was not included with steroids as a Schedule III controlled substance, however,
meaning that under current federal law, there is no criminal penalty for simple possession of
HGH.65 Several states have regulated human growth hormone as a controlled substance,
however, under their own versions of the Controlled Substances Act.66
61 Anabolic Steroids Control Act of 1990, Pub. L. No. 101-647, 101 Stat. 4789 (1990) (codified as amended in scattered sections of 21 U.S.C.).
62 Selig & Manfred, supra note 56, at 37 (quoting Jeffrey Hedges, Note, The Anabolic Steroids Act: Bad Medicine for the Elderly, 5 Elder L.J. 293, 297 (1997)).
63 Pub. L. No. 101-647, 101 Stat. 4789 (1990) (codified at 21 U.S.C. § 333(e) (1992)).
64 See Food and Drug Administration Import Alert No. 66-71, Detention Without Physical Examination of Human Growth Hormone (HGH), also known as Somatropin (Jan. 23, 2007). In separate law enforcement proceedings in 2007, two pharmaceutical companies agreed to settlements with federal prosecutors relating to off-label sales of human growth hormone (with a physician’s prescription) for anti-aging, cosmetic, or athletic performance purposes. See Michael S. Schmidt, Company Agrees to a Fine Over Shipments of H.G.H., N.Y. Times, Sept. 19, 2007, at D5 (Specialty Distribution Services, Inc. agrees to $10.5 million fine and deferred prosecution agreement); Press Release, Pfizer Inc., Pfizer Subsidiaries Reach $34.7 Million Settlement with DOJ (Apr. 2, 2007) (Pharmacia and Upjohn agreement to $15 million fine and deferred prosecution agreement).
65 See 21 U.S.C. § 333(f)(1); see generally George Fan, Comment, Anabolic Steroid and Human Growth Hormone Abuse: Creating an Effective and Equitable Ergogenic Drug Policy, 1994 U. Chi. Legal F. 439 (1994). In March 2007, Senator Charles E. Schumer introduced a bill
The 1988 and 1990 amendments did not apply to many potentially performance enhancing nutritional supplements that were considered steroid “precursors,” the most well known of which is androstenedione.67 Many of these substances have anabolic effects, and possible harmful side effects, similar to those associated with regulated anabolic steroids. In 1994 Congress enacted the Dietary Supplement Health and Education Act (“DSHEA”) after the Food and Drug Administration announced that it would tighten regulation of supplements in the wake of a series of deaths that were attributed to the use of L-tryptophan, an amino acid.68
The DSHEA placed the burden on the FDA to prove that a supplement was unsafe before its sale could be prohibited.69 Following the enactment of the DSHEA, supplements claiming anabolic effects that were geared toward bodybuilders and other athletes became more widely available.
to amend the Controlled Substances Act to add human growth hormone to Schedule III under that Act. The bill has been referred to the Senate Judiciary Committee. S. 877, 110th Cong., 1st Sess. (2007).
66
See, e.g., Colo. Rev. Stat. §§ 18-18-102, 18-18-205 (2007) (listing human growth hormone as an anabolic steroid); Idaho Code Ann. § 37-2709(f) (2007) (“human growth hormones” included on Schedule III); Minn. Stat. § 152.02 (2007) (“human growth hormones” included in definition of anabolic steroids); R.I. Gen. Laws § 21-28-2.08 (2007) (listing human growth hormone under Schedule III); W. Va. Code § 60A-2-208(c)(12) (2007) (listing “[h]uman growth hormones or anabolic steroids” as “depressants” under Schedule III).
67 The 1990 amendments did apply to “immediate precursors” of a substance listed on Schedule III, but supplement manufacturers found ways around this prohibition. See Selig & Manfred, supra note 56, at 38 (discussing marketing claims for Equibolan, sold as a “legal precursor to Boldenon,” an anabolic steroid).
68 Dietary Supplement Health and Education Act of 1994, Pub. L. No. 103-417, 108 Stat. 432 (1994) (codified as amended in scattered sections of 21 U.S.C.). Before the enactment of the DSHEA, dietary supplements were subject to pre-market approval by the FDA unless they qualified as a food or food additive that was generally recognized as safe, or claimed to affect the “structure and function of the body” in a way that related only to taste, aroma, or nutrition. See Selig & Manfred, supra note 56, at 38-40.
69 Selig & Manfred, supra note 56, at 41 (citing 21 U.S.C. § 342(f)(1) (2000)).
In 1988, androstenedione became the subject of national attention after a reporter observed a container of the supplement in the locker of Mark McGwire of the St. Louis Cardinals during his pursuit of the single-season home run record.70 The ability to purchase the substance over-the-counter became a subject of intense discussion, and that off-season Commissioner Selig and Donald Fehr, the executive director of the Players Association, agreed to co-sponsor a scientific study into androstenedione’s anabolic effects.71
Further developments in professional sports also had an impact on the debate. In August 2001, Korey Stringer, a lineman with the Minnesota Vikings, died after collapsing during the team’s summer workouts. Then in February 2003, Baltimore Orioles pitcher Steve Bechler died during spring training. Products containing ephedra, an amphetamine-like stimulant that could be sold over-the-counter at the time, were linked to both deaths. In late 2003, the FDA moved to regulate the sale of products containing ephedra.72 By the time of Bechler’s death, the agency reportedly had been compiling data required under the DSHEA to show ephedra’s dangerous side effects in order to ban the substance, but it had not yet completed that work.73
As a result of these and other incidents, both Congress and the FDA increased their scrutiny of some supplements, including those, such as androstenedione, that were
70 See Steve Wilstein, Sports Spotlight: Home-Run Derby; ROGER THAT; Legendary Season Grows with Every Prodigious Clout, Houston Chron., Aug. 16, 1998, at Sports 1.
71 See Benjamin Z. Leder, et al., Oral Androstenedione Administration and Serum Testosterone Concentrations in Young Men, 283 JAMA 779, 782 (2000); John Fauber, “Andro” Pill Found to Increase Testosterone Like Anabolic Steroids; Supplement May Boost Muscles, Raise Health Risks, Milwaukee J. Sentinel, Feb. 9, 2000, at 1.
72 Press Release, Department of Health & Human Services, FDA Announces Plans to Prohibit Sales of Dietary Supplements Containing Ephedra (Dec. 30, 2003).
73 Press Release, Food & Drug Administration, HHS Acts to Reduce Potential Risks of Dietary Supplements Containing Ephedra (Feb. 28, 2003); Stephen Smith, FDA Proposes Warning Label for Ephedra, Boston Globe, Mar. 1, 2003, at A1.
considered steroid precursors.74 In March 2004, acting under its interpretation of a provision of the DSHEA, the FDA sent warning letters to twenty-three companies involved in selling products that included androstenedione.75 In the press release announcing this action, Secretary of Health and Human Services Tommy Thompson called on Congress to amend the Controlled Substances Act to include androstenedione within the definition of restricted anabolic steroids.76
Commissioner Selig and his staff were advocates for stricter regulation of these substances. In congressional testimony in June 2002, Robert D. Manfred, Jr., the executive vice president for labor in the Commissioner’s Office, described the androstenedione study that had been sponsored by Major League Baseball and the Players Association and urged Congress to revise the DSHEA to reimpose regulation on supplements like androstenedione.77 In early 2004, Selig and Manfred published an article in the Stanford Law and Policy Review explaining the difficulties posed under baseball’s joint drug program (adopted effective as of September 30, 2002) as a result of the lax regulation of supplements that were steroid precursors.78
Don Fehr also expressed the Players Association’s support for governmental action to address the problem of legal steroid precursors. In June 2002 congressional testimony,
74 See Selig & Manfred, supra note 56, at 42-43 & n.44 (citing Press Release, Department of Health & Human Services, HHS Acts to Reduce Potential Risks of Dietary Supplements Containing Andro (Mar. 11, 2004)).
75 Id.
76 Press Release, Department of Health & Human Services, HHS Acts to Reduce Potential Risks of Dietary Supplements Containing Andro (Mar. 11, 2004).
77 See Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 5, 8-9 (2002) (statement of Robert D. Manfred, Jr., executive vice president for labor relations, Major League Baseball); see also Leder, et al., supra note 71, at 782; John Fauber, “Andro” pill found to increase testosterone like anabolic steroid; supplement may boost muscles, raise health risks, Milwaukee J. Sentinel, Feb. 9, 2000, at 1.
78 Selig & Manfred, supra note 56.
Fehr noted that these substances legally could be purchased over-the-counter and that use of
some legal supplements could result in positive tests for steroids, a significant issue for the
Players Association in considering baseball’s proposal at the time to implement mandatory
random drug testing for steroids and other substances.79
In October 2004, Congress passed the Anabolic Steroid Control Act of 2004,
which amended the definition of “anabolic steroid” under the Controlled Substances Act to
include a number of supplements considered to be steroid precursors, including androstenedione,
but not DHEA (dehydroepiandrosterone) – another steroid precursor that is closely related to
androstenedione – and granted authority to the Drug Enforcement Administration to add other
steroid precursors to that definition in the future.80
B. Baseball’s Drug Policies Before 2002
The problem of drug abuse by players in Major League Baseball has received the
attention of every Commissioner of Baseball who has served over the past four decades. In
tandem with trends in American society, perceptions evolved over that period regarding the type
79 See Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 25, 27, 29, 47 (2002) (statement of Donald H. Fehr, executive director, Major League Players Association). Since DSHEA was enacted, several studies have found some dietary supplements to include anabolic steroids. A study published in December 2007 reported that almost 15% of 58 sample dietary supplements contained steroids or prohormones that were not declared on the label. See C. Judkins, D. Hall, and K. Hoffman, Investigation into Supplement Contamination Levels in the US Market, HFL, 2007. This presents a problem for sports drug testing programs because athletes who test positive often claim that it was the result of unknowing ingestion of contaminated dietary supplements. The Commissioner’s Office and the Players Association have attempted to address this problem in several ways, including (1) the development of a joint supplement certification program, (2) development of a resource exchange center to provide updated information on supplements, and (3) continued education efforts for players.
80 Anabolic Steroid Control Act of 2004, Pub. L. No. 108-358, 118 Stat. 1661 (2004) (codified at 21 U.S.C. §§ 802, 811(g)); see Anne E. Kornblut & Duff Wilson, How One Pill Escaped Place on Steroid List, N.Y. Times, Apr. 17, 2005, at A11.
of drug abuse that required attention. Since 1971, baseball has prohibited the illegal use, possession, or distribution of drugs, including the unauthorized use of prescription drugs. Anabolic steroids have been expressly listed among baseball’s prohibited substances since 1991. Until it was included in the 2002 Basic Agreement, however, this policy was not agreed to by the Players Association, which therefore retained the ability to challenge discipline decisions by the Commissioner for violations of the policy.
Unlike prohibitions on gambling, before 2002 baseball’s drug policy was communicated in periodic memoranda from the Commissioner or his staff, and the drug policy was never added to the Major League Rules. Rule 21 of the Major League Rules, which bars gambling and similar activities, requires that it be posted in every major league clubhouse. Each year in spring training, representatives from the Commissioner’s Office visit the training camps to remind players of the rule, and, in these presentations, read the rule in its entirety. While many witnesses had general recollections of educational programs regarding steroids and other drugs from recent years, few were aware that baseball’s drug policy before 2002 expressly prohibited the use or possession of steroids without a valid prescription.
Beginning in 2002, baseball’s drug policy was formally included in the collective bargaining agreement. Survey testing was conducted in 2003, and mandatory random drug testing for anabolic steroids and other prohibited substances has been part of that policy since 2004. As early as 1984, however, an informal arrangement existed under which “reasonable cause” testing of players who were suspected of involvement with drugs was arranged on a case-by-case basis through discussions between the Commissioner’s Office and the Players Association; that arrangement was used for incidents of suspected steroid use beginning in the summer of 2000.
The informal approach to testing was ineffective because it resulted in significant advance notice to a player who was suspected of using drugs that he would be subject to a drug test. As a result, during negotiations with the Players Association in 2002, bargaining representatives of the owners were insistent that a more stringent drug testing program be adopted. The collectively bargained joint drug program now includes its own procedures for “reasonable cause” testing, in addition to providing for mandatory random testing.81
During the era in which the drug policy was evolving, the powers of the Commissioner of Baseball to discipline players for their involvement with drugs were also being affected by grievance arbitrations brought by the Players Association. An understanding of the context for Major League Baseball’s approach to the problem of performance enhancing substances in the game requires some understanding of the decisions in those arbitrations, which are discussed chronologically, together with the drug policies that led to them.82
1. Bowie Kuhn and Baseball’s First Drug Policies
Baseball’s first written drug policy was announced by Commissioner Bowie Kuhn at the beginning of the 1971 season.83 At the time, the problem of drug abuse, especially the use
81 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 3(C) (2006).
82 An overview of the early efforts to eradicate drug use from Major League Baseball is provided in Glenn M. Wong & Richard J. Ensor, Major League Baseball and Drugs: Fight the Problem or the Player?, 11 Nova L. Rev. 779 (1987). Other articles also have addressed this history. See Mark A. Rabuano, Comment, An Examination of Drug Testing as a Mandatory Subject of Collective Bargaining in Major League Baseball, 4 U. Pa. J. Lab. & Empl. L. 439 (2002); Edward J. Rippey, Contractual Freedom Over Substance-Related Issues in Major League Baseball, 1 Sports Law. J. 143 (1994); see also Deanna Rusch, Major League Baseball and Drug Testing, 2 Willamette Sports L.J. (Spring 2005).
83 Notice No. 12, Memorandum from Major League Baseball Office of the Commissioner to Administrative Officials of Major League Baseball Re: Drug Education and Prevention Program, dated Apr. 5, 1971.
of marijuana, had gained national attention, and Congress had just enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970.84
While focusing on prevention and treatment in the first instance, baseball’s original drug policy provided for the possibility of discipline for failure to comply with federal and state drug laws. Just a year earlier, pitcher Jim Bouton had published his memoir, Ball Four, in which he alleged that there was widespread use of amphetamines by major league players.85 The 1971 drug policy memo stated that the “unprescribed possession or distribution of amphetamines or barbiturates (including ‘greenies’)” was a violation of law that could be the basis for discipline.
The drug policy did not expressly address the use of anabolic steroids. It stated, however, that “[b]aseball must insist its personnel comply with federal and state drug laws,” and the policy placed responsibility on the individual to become familiar with those laws.86 (Under federal law at the time, the use of anabolic steroids without a valid prescription was a violation of the Federal Food, Drug and Cosmetic Act.87) The drug policy advised trainers that anabolic steroids (and certain other substances) should not be dispensed without a physician’s guidance.
84 Pub. L. No. 91-513, 84 Stat. 1236 (1970) (codified as amended in various sections of 21 U.S.C.).
85 See Jim Bouton, Ball Four at 81, 157, 171, 211-12 (Wiley 1990 ed.).
86 Notice No. 12, Memorandum from Major League Baseball Office of the Commissioner to Administrative Officials of Major League Baseball Re: Drug Education and Prevention Program, dated Apr. 5, 1971, at 2.
87 Federal Food, Drug, and Cosmetic Act, c. 675, 52 Stat. 1040 (codified as amended at 21 U.S.C. § 353 (2004)).
Trainers also were instructed not to carry syringes or to provide injections to players under any circumstances.88
In 1973, a Congressional subcommittee announced that its staff had completed an “in depth study into the use of illegal and dangerous drugs in sports” including professional baseball. The subcommittee concluded that “the degree of improper drug use – primarily amphetamines and anabolic steroids – can only be described as alarming.” Subcommittee chairman Harley O. Staggers called on professional sports leagues to adopt “stringent penalties for illegal use, i.e., fines, suspension or even barring for life, if warranted . . . .”89 In response, Commissioner Kuhn issued a statement announcing that, as a result of its education and prevention efforts, baseball had “no significant problem” with drug use, and he referred to recent private comments by chairman Staggers who reportedly “commended baseball’s drug program as the best and most effective of its kind in sports.”90
Each year from 1971 to 1985, the Commissioner or his representatives issued memoranda to major league clubs reiterating the terms of the drug prevention and education program in substantially similar form. The memorandum was revised in 1981 to require each club to create an employee assistance program and permit any employee (including any player), under certain circumstances, to seek confidential alcohol or drug information and treatment
88 Notice No. 12, Memorandum from Major League Baseball Office of the Commissioner to Administrative Officials of Major League Baseball Re: Drug Education and Prevention Program, dated Apr. 5, 1971, at Guidelines for Trainers 2.
89 Press Release, Office of Congressman Harley O. Staggers (undated); see Norm Miller, Drug Use in Sports Alarms, N.Y. Daily News, May 12, 1973, at C22.
90 Press Release, Major League Baseball Office of the Commissioner (May 18, 1973).
“without disclosure to management of this fact.”91 Any employee who requested help for a drug or alcohol dependence problem would not be subject to discipline.92 The Commissioner’s 1984 memorandum further noted that several clubs had initiated their own testing programs, expressed strong support for these efforts, and urged any clubs considering such a testing program to consult with his office.93
2. The Ferguson Jenkins Decision In 1980, future Hall of Fame member Ferguson Jenkins, then a pitcher with the Texas Rangers, was arrested in Canada for possession of marijuana, hashish, and cocaine
discovered by customs officials in an inspection of luggage on the team’s charter flight into Toronto. In an interview by baseball officials following his arrest, Jenkins declined to answer certain questions on the advice of his counsel.94
Commissioner Kuhn suspended Jenkins with pay because he “declined to cooperate” with the Commissioner’s investigation of the incident.95 The Players Association filed a grievance challenging Jenkins’s suspension, and in the resulting decision a majority of the
91 Memorandum from Major League Baseball Office of the Commissioner to All Major League Club Chief Executives, General Managers and Team Physicians Re: Club Drug Education & Prevention Programs, dated July 2, 1981, at Tab C.
92 Id.
93 Memorandum from Bowie K. Kuhn to All Major League Clubs Re: Drug Program, dated Feb. 9, 1984, at 2.
94 See Arbitration between Major League Baseball Players Ass’n and Major League Baseball Player Relations Comm., Inc., Panel Decision No. 41 (Ferguson Jenkins), at 2 (Sept. 22, 1980) (“Panel Decision No. 41”).
95 Id. at 1-2 (quoting Letter from Commissioner Bowie K. Kuhn to Ferguson Jenkins, dated Sept. 8, 1980).
panel of arbitrators rescinded it, concluding that the suspension had been without “just cause” (the owner’s representative on the arbitration panel dissented).96
The majority of the three-member arbitration panel concluded that it was unclear whether the Commissioner had suspended Jenkins due to his arrest for possession of drugs or due to his refusal to answer the Commissioner’s questions about the arrest. Neither basis, however, provided “just cause” for the suspension, in the majority’s view. The majority reasoned that “under controlling principles of United States and Canadian law – as well as fundamental rules of fair play – Jenkins must be presumed innocent until he is proven guilty.”97 While there might be instances in which an employer would have the latitude to suspend an employee before trial – such as an arrest for a violent crime or “where the repellant nature of the charge, and the attendant publicity, cause realistic concerns about adverse effects on the employer’s business” – in the majority’s view Jenkins’s arrest for possession of 1.75 ounces of marijuana, 2.2 grams of hashish, and 3.0 grams of cocaine was not that type of “repellant” charge.98
The majority also concluded that Jenkins’s refusal to answer the Commissioner’s questions could not be “just cause” for the suspension because “the Commissioner was compelling Jenkins to jeopardize his defense in court” and there was “no compelling reason why the investigation into Jenkins’[s] activities could not have awaited the outcome of the trial.”99
The Jenkins decision represented the first substantial limitation on the Commissioner’s power to impose discipline on major league players and to compel a player to
96 Id. at 12, 16-17.
97 Id. at 12.
98 Id. at 13.
99 Id. at 16-17.
cooperate with an investigation, at least when criminal charges are pending against him.100 In his announcement of this investigation, Commissioner Selig alluded to the decision when he said that “an investigation of the illegal use of performance enhancing substances by a player or players is an extraordinarily difficult undertaking. . . . Arbitrators have been reluctant to allow compelled, potentially self-incriminating testimony and, unlike governmental law enforcement officials, Major League Baseball lacks the authority to grant immunity.”101
3. Cocaine Suspensions of 1983-84 Several further incidents in the early 1980s involving the use, possession, and, in one instance, assistance in distribution of cocaine led to a series of suspensions. While Commissioner Kuhn’s discipline of players for these incidents generally was upheld, in some cases arbitrators deemed the punishment too severe, and in one instance a suspension was overturned based on the arbitrators’ lack of confidence in the legal system of another country. In 1983, four players with the Kansas City Royals were arrested on cocaine-
related charges. Three of those players, Willie Aikens, Jerry Martin, and Willie Wilson, pleaded guilty to misdemeanor possession charges and were each sentenced to a fine and one-year
100 Although the Players Association was formed in 1954, the first collective bargaining agreement in Major League Baseball was not entered into until 1968. Baseball was not recognized to be within the jurisdiction of the National Labor Relations Board until 1969. See American League of Prof’l Baseball Clubs, et al., 180 N.L.R.B. 190, 192 (1969); see generally Rabuano, supra note 82, at 440-41. The grievance and arbitration procedures were changed substantially in 1970, resulting in the basic tripartite arbitration panel that remains in effect today. See Wong & Ensor, supra note 82, at 782; Doug Pappas, A Contentious History: Baseball’s Labor Fights, espn.com, Sept. 5, 2002.
101
See, e.g., Press Release, Major League Baseball Office of the Commissioner, Statement of Commissioner Allan H. Selig (dated Mar. 30, 2006). Jenkins later was convicted of the charges in an Ontario court. The court expunged the charges immediately. Jenkins and Commissioner Kuhn agreed to a resolution under which Jenkins issued a public apology, agreed to participate in educational programs, and agreed to donate $10,000 to a “suitable program for young people.” Joseph Durso, Jenkins, Kuhn Reach Accord in Drug Case, N.Y. Times, Feb. 7, 1981, at B29.
imprisonment (with all but three months of those sentences suspended).102 In December 1983, Commissioner Kuhn suspended the three players for a year without pay, although he said that the suspensions would be reviewed on May 15, 1984 “with a view to their reinstatement” if then warranted in the Commissioner’s judgment. He also required the players to submit to drug testing during their probations.103 Following a Players Association grievance filed on behalf of Martin and Wilson, the arbitrators recognized that “[t]raditional notions of industrial discipline support the conclusion that an employer may respond to drug-related misconduct with severe measures,” and concluded that “just cause” existed for a suspension. However, the panel concluded, any suspension beyond May 15, 1984 was “too severe to be squared with the just-cause requirement.”104
A fourth Royals player, pitcher Vida Blue, also was convicted, imprisoned, and fined in the Kansas City incident. Kuhn’s suspension of him for the 1984 season, followed by a two-year probationary period that included mandatory drug testing, was later upheld in
102 See Arbitration between Comm’r of Baseball and Major League Baseball Players Ass’n, Panel Decision No. 54 (Willie Wilson and Jerry Martin), at 1-2 (Apr. 3, 1984) (“Panel Decision No. 54”); Arbitration between Major League Baseball Player Relations Comm., Inc. and Major League Baseball Players Ass’n, Panel Decision No. 61 (Vida Blue), at 1-2 (July 24, 1984) (“Panel Decision No. 61”); see generally Memorandum from Barry Rona to Rep. Charles
B. Rangel Re: Major League Baseball’s Response to Drug-Related Misconduct by Players, dated June 13, 1989 (“Rona Memo”), at 5; Wong & Ensor, supra note 82, at 785.
103 Panel Decision No. 54, at 2-3; see Wong & Ensor, supra note 82, at 785. Los Angeles Dodgers pitcher Steve Howe received the same suspension. Howe was a repeat offender who failed two separate drug tests for cocaine during the 1983 season which were administered by the Dodgers under the club’s agreement with Howe following his treatment for cocaine abuse in a rehabilitation program. Wong & Ensor, supra note 82, at 785.
104 See Panel Decision No. 54, at 5, 10-11. A grievance also was filed on behalf of Howe, but that matter was settled before an arbitration decision. Wong & Ensor, supra note 82, at 787.
arbitration, in part based on Blue’s alleged involvement in assisting other players to procure drugs.105
In a separate arbitration decision issued in April 1984, the arbitrators overturned a one-month suspension of Atlanta Braves pitcher Pascual Perez that had been imposed by Commissioner Kuhn after Perez was released from a three-month imprisonment in the Dominican Republic for possession of cocaine. The panel noted the gravity of the charge for which Perez had been convicted, and recognized that drug involvement by a major league player was “not only contrary to established rules and provisions of the Uniform Players Contract, but also constitutes a ‘serious and immediate threat to the business that is promoted as our National Pastime.’”106 However, the arbitrators questioned whether a conviction in the courts of the Dominican Republic amounted to “persuasive” evidence of his guilt, based on a troubling recitation of the facts surrounding his coercive interrogation by police officers at the time of his arrest.107
These decisions make clear the authority of arbitrators to review and revise the severity of discipline imposed by the Commissioner using his “just cause” powers for drug violations. All of the decisions concerned drugs of abuse, principally cocaine, rather than performance enhancing substances such as anabolic steroids. The use of the drugs at issue in these decisions did not assist players to gain an unfair competitive advantage. Nevertheless, these and other decisions have affected the decisions of the Commissioner’s Office and the
105 Panel Decision No. 61, at 3; see Wong & Ensor, supra note 82, at 789-90.
106 See Arbitration between Major League Baseball Players Ass’n and Comm’r of Baseball, Panel Decision No. 58 (Pascual Perez), at 2 (Apr. 27, 1984) (quoting Panel Decision No. 54, at 8).
107 Id. at 3-7; see Rona Memo. at 8.
Players Association when reacting to more recent incidents concerning a player’s involvement with performance enhancing substances.108
4. The 1984 Joint Drug Program As his term neared its end, Commissioner Kuhn pressed for stronger regulation of drug use in baseball. Opinions were divided among the owners of the major league clubs, however, over whether to require mandatory random drug testing as part of such a program. The
Players Association opposed mandatory random testing as “degrading” to players and a violation of their privacy, according to a report of statements by Don Fehr, who was at the time its acting executive director.109
In June 1984, the owners (through their Player Relations Committee) and the Players Association agreed to a joint program that provided for treatment of players who were found to use, or who had admitted using, certain drugs of abuse. Steroids and amphetamines were not on the schedule of prohibited substances. The program provided for drug testing of players who admitted drug use, and for players for whom there was “reason to believe” that they were using drugs. “Reason to believe” testing was permitted if a three-member panel unanimously determined that testing was warranted. There was no punishment under the program for failed drug tests, but players could be subjected to discipline if they failed to
108 In another arbitration decision handed down during the tenure of Commissioner Peter
V. Ueberroth, arbitrators reduced Ueberroth’s one-year suspension of San Diego Padres pitcher LaMarr Hoyt to sixty days based on Hoyt’s arrest for transporting hundreds of pills of valium and propoxyphene, a muscle-relaxant/pain killer, across the border from Mexico. See Arbitration between Major League Baseball Players Ass’n and San Diego Padres Baseball Club and Comm’r of Baseball, Panel Decision No. 74 (LaMarr Hoyt), at 1-3, 45 (June 16, 1987). Among other things, the arbitration panel reasoned that the incident did not involve cocaine, but instead valium, which the arbitrators reasoned was “illegal only, as in this case, when it is obtained without a prescription.” Id. at 26, 35.
109 See George Vecsey, Owners Split Over Testing, N.Y. Times, May 27, 1984, at E4. As noted above, this discussion concerned drugs of abuse, such as cocaine, not performance enhancing substances.
cooperate under the program, provided that any such discipline would be subject to the Players Association’s right to file a grievance and pursue arbitration over whether it was supported by “just cause.”110
In agreeing to the 1984 joint program, the Players Association opposed mandatory random testing. In a letter to the Player Relations Committee, Fehr explained that the Players Association was “skeptical of the value of such testing . . . and is concerned about infringement of constitutional rights, and rights of privacy, etc., in any program of mandatory testing.” He also asserted that under applicable law the clubs were not permitted to require players to submit to urine or other testing as a condition of employment.111 In the memorandum of understanding setting forth the terms of the joint program, the Players Association recited its views about testing:
The Players Association does not object, in principle, to individual, voluntary testing, on a case by case basis, provided that a player's agreement to any such test is truly voluntary, and that such agreement is not secured through coercion or pressure of any sort, and the confidentiality and integrity of the testing process can be assured . . . .112
The Players Association reiterated its opposition to mandatory drug testing soon thereafter. Two clubs, the Los Angeles Dodgers and the San Francisco Giants, attempted to require drug testing as a term of new player contracts. Negotiations toward a new collective bargaining agreement were suspended until the two clubs withdrew that request and all of the
110 Memorandum of Agreement between 26 Major League Clubs and the Major League Baseball Players Association, dated May 24, 1984; Letter from Donald M. Fehr to Leland S. MacPhail, dated May 24, 1984.
111 Letter from Donald M. Fehr to Leland S. MacPhail, dated May 24, 1984.
112 Memorandum of Agreement between 26 Major League Clubs and the Major League Baseball Players Association, dated May 24, 1984, at 3.
clubs agreed that the joint drug program, without mandatory testing, would take the place of any such unilateral contract provision.113
The joint program was criticized by some as insufficiently rigorous, and in any event it was largely ignored. The program was terminated by the owners in October 1985, by which time only three players had submitted to its treatment and rehabilitation provisions.114 While few players were subjected to “reason to believe” drug testing under the joint program, it served as a precedent for the “reasonable cause” testing that was in effect informally thereafter until the 2002 Basic Agreement added a mandatory random drug testing program to the collective bargaining agreement.115
5. Drug Policies Under Peter Ueberroth In October 1984, Peter V. Ueberroth succeeded Bowie Kuhn as Commissioner of Baseball. Even before he began in that position, Ueberroth acknowledged that one of his primary responsibilities as the new Commissioner would be to address the problem of drug use in baseball, and today he recalls accepting the position specifically to address that issue as well as baseball’s challenging economic conditions. To Ueberroth, however, the use of anabolic steroids or similar substances was “not really on the radar” at that time.
In Ueberroth’s first full year as Commissioner, 1985, the “Pittsburgh drug trials” occurred, in which a number of major league players testified in criminal cases against Curtis
113 Wong & Ensor, supra note 82, at 793 (citing Murray Chass, Baseball Settles Drug Issue, N.Y. Times, Jan. 30, 1985, at A16).
114 See Memorandum from Jennifer R. Gefsky to Robert D. Manfred, Jr. Re: 1984 Joint Drug Agreement, dated Mar. 24, 2005, at 2.
115 See Letter from Donald M. Fehr to Sen. George J, Mitchell dated Nov. 30, 2007; see also Rona Memo. at 9.
Strong and Robert McCue, who were charged with selling cocaine to players.116 In their
testimony, several players admitted using cocaine and implicated other players. The
Commissioner interviewed each of the player witnesses and other players who were named
during the trials, and some were subjected to discipline.117
In May 1985, Commissioner Ueberroth established a mandatory drug testing
program covering all employees in the major and minor leagues, including umpires and minor
league players. The program tested for drugs of abuse and amphetamines but did not test for
steroids or other performance enhancing substances. Initial positive tests were to be met with
treatment rather than discipline.118
The May 1985 drug testing program did not include major league players,
however. Ueberroth urged that mandatory drug testing be added to the joint drug program,
which was still in effect at that time.119 He recalled that the Players Association would not
116 See Associated Press, Conviction in Drug Trial, Sept. 27, 1985.
117 According to Ueberroth, no evidence emerged during these interviews relating to the use of anabolic steroids or similar substances. The Commissioner suspended for a year those players who had engaged in a prolonged pattern of drug use and had facilitated drug sales to other players. Players for whom evidence showed some drug use but no involvement in drug distribution were suspended for sixty days. Finally, no discipline was imposed on players for whom there was little or no evidence of drug use. All of the players were subject to follow-up drug testing, and the players who were suspended could avoid suspension by performing community service and donating a portion of their 1986 salaries to a drug abuse prevention program. Rona Memo at 6; see also Wong & Ensor, supra note 82, at 798-804. Eventually, 21 players were disciplined. See Murray Chass, Hernandez and Berra Consider Stances on Ruling, N.Y. Times, Mar. 1, 1986, at Sports 7.
118 See Memorandum from Peter V. Ueberroth to All Major League Clubs Re: Baseball’s Drug Education and Prevention Program, dated June 18, 1985; Telex from the Commissioner’s Office to Distribution List Re: Baseball Drug Education & Prevention Program, dated May 14, 1985.
119 Press Release, Major League Baseball Office of the Commissioner, Ueberroth Institutes Drug Testing for Baseball Personnel, and Urges It Be Included in Joint Drug Agreement with Players (May 7, 1985); Letter from Peter V. Ueberroth to Donald M. Fehr and Leland S. MacPhail, dated May 7, 1985.
consider such a program and rejected his proposed compromise for a program under which only
the Players Association would see the results of drug tests.
After his initial discussions with the Players Association failed, Ueberroth
appealed directly to major league players, urging them to volunteer for confidential testing under
the program with no threat of punishment.120 Days later, the Commissioner announced an
“overwhelming” consensus among players in favor of drug testing; his statement quoted
New York Mets manager Davey Johnson as having said that he “took a team vote which came
out 100 percent in favor of testing.” 121 The Players Association disputed the claims of
overwhelming support from players and objected to the Commissioner making an appeal directly
to them.122
In a 2002 interview, Marvin Miller, former executive director of the Players
Association recalled the events:
. . . one day in 1985 Ueberroth astonished Don Fehr and myself by going on television during a national telecast and announc[ing] that he was voiding the existing drug program because it didn’t have mandatory testing. Don Fehr told him, in essence, to go to hell.
Incredibly, in 1986 he tried again. Without even bothering to consult the union, he sent a letter to every major league player urging them to submit to voluntary drug tests. The test results, he said, would be ‘totally confidential’ – and free of penalties – which made us wonder what
120 Memorandum from Peter V. Ueberroth to All Major League Players, dated Sept. 23, 1985. The Commissioner’s Office publicly announced the issuance of the memorandum the next day. See Press Release, Major League Baseball Office of the Commissioner, Ueberroth Asks Players to Rid Baseball of Drugs (Sept. 24, 1985).
121 Press Release, Major League Baseball Office of the Commissioner, Players Against Drug Us (Sept. 26, 1985). A letter from the Commissioner to Don Fehr that day made the same points and urged Fehr to work with the Player Relations Committee to develop the testing program. See Letter from Peter V. Ueberroth to Donald M. Fehr, dated Sept. 26, 1985.
122 Letters from Donald M. Fehr to Peter V. Ueberroth, dated Sept. 26, 1985.
he hoped to gain. Don suggested to the players that they simply toss the
commissioner’s letter in the garbage.123
During the 1985-86 off-season, the owners tried a different approach to implementing drug testing. Clauses were included in the contracts of approximately 550 players that would have required players who signed the contracts to submit to drug testing upon their club’s request. The Players Association filed a grievance, in which it asserted that the provisions violated the Basic Agreement and that drug testing was a mandatory subject of collective bargaining that could not be implemented unilaterally through individual player contracts.
The owners’ representative countered that the collective bargaining agreement did not speak to drug testing and that the provision benefited players by “permitting [them] to publicly disassociate [themselves] from the specter of drugs.” The arbitrators disagreed with that argument, and they struck down the contract provisions on the ground that they violated the Basic Agreement. The panel did not reach the question of whether drug testing was a mandatory subject of collective bargaining.124
In April 1986, Commissioner Ueberroth again reached out to players directly, urging them to support a drug testing program and proposing that testing be implemented only for the next two seasons.125 The Players Association criticized Ueberroth again for contacting
123 See Allen Barra, Marvin Miller: Don’t Trust Baseball’s Drug-Testing Proposal, salon.com, June 20, 2002. Miller continued: “When they finally got together, Ueberroth asked Fehr if the union would agree to testing ‘even if it was just for the sake of public relations.’ Don told me his jaw dropped; when he told me, mine dropped.” Id.
124
See Arbitration between Major League Baseball Player Relations Comm. and Major League Baseball Players Ass’n, Panel Decision No. 69, at 5-6, 8, (July 30, 1986). At the time, that issue had not been resolved as a matter of federal labor law, but in other cases soon thereafter the National Labor Relations Board concluded that workplace drug testing was a mandatory subject of collective bargaining. See Johnson-Bateman Co., 295 N.L.R.B. 180 (1989); Star Tribune, 295 N.L.R.B. 543 (1989); see Rabuano, supra note 82, at 453; Rippey, supra note 82, at 146 n.18.
125 Memorandum from Peter V. Ueberroth to All Players, dated Apr. 4, 1986.
players directly and “exhorting” them to support the testing plan.126 No agreement was reached with regard to mandatory drug testing of players in Major League Baseball then or for the next sixteen years.
While the drug policy always had required clubs to report evidence of a player’s drug use to the Commissioner’s Office, beginning in November 1986, baseball’s drug policy was amended to provide for a fine of up to $250,000 upon any club that failed to make such a report.127 This reporting requirement was included in every subsequent iteration of the drug policy,128 and since 2002, the potential fine for a club’s failure to report evidence of drug use has been $2,000,000, the maximum fine that the Commissioner may impose on a club under the Major League Constitution.129
When I interviewed them in the course of this investigation, Commissioner Selig and Bob DuPuy, the current president and chief operating officer of Major League Baseball, confirmed that there has been no instance in which a fine for such a failure to report has been levied against any club.
126 Letter from Donald M. Fehr to Peter V. Ueberroth, dated Apr. 7, 1986.
127 Memorandum from Peter V. Ueberroth to All Major League Clubs Re: Baseball’s Drug Abuse Program, dated Nov. 26, 1986, at 3.
128 See Memorandum from Edwin M. Durso to All Major League Clubs Re: Baseball’s Drug Abuse Program, dated Mar. 1, 1988, at 3; Memorandum from A. Bartlett Giamatti to All Major League Clubs Re: Baseball’s Drug Use Policy and Drug Use Program, dated Apr. 19, 1989, at 3; Memorandum from Francis T. Vincent, Jr. to All Major League Clubs Re: Baseball’s Drug Use Policy and Drug Use Program, dated Apr. 17, 1990, at 3; Memorandum from Francis
T. Vincent, Jr. to All Major League Clubs Re: Baseball’s Drug Policy and Prevention Program, dated June 7, 1991, at 2.
129 See Memorandum from Allan H. “Bud” Selig to All Major League Clubs, etc. Re: Baseball’s Drug Policy and Prevention Program, dated Apr. 12, 2002, at 3.
6. 1991: Fay Vincent Adds Steroids to Baseball’s Drug Policy In September 1989, Francis T. (“Fay”) Vincent was elected to succeed A. Bartlett
Giamatti as Commissioner, after Giamatti’s sudden death. Vincent was the first Commissioner to expressly include anabolic steroids among the substances prohibited under baseball’s drug policy, which he did in the June 1991 version of the memorandum.130 Steroids were added to the
drug policy at that time, apparently as a result of the enactment of the Anabolic Steroids Control Act of 1990. Under that statute, anabolic steroids had been reclassified as Schedule III controlled substances, and the illegal use of them became subject to substantially increased criminal penalties.131
In July 1992, Vincent suspended New York Yankees pitcher Steve Howe from baseball for life based on his repeated use of cocaine in violation of baseball’s drug policy. The Players Association successfully overturned this order in a grievance that was decided by the arbitrators after Vincent resigned as Commissioner later that year. The arbitrators concluded that the lifetime ban was without just cause and limited the suspension to the remainder of the 1992
132
season. In dissent, management’s representative on the panel, Vincent’s deputy Stephen
130 See Memorandum from Francis T. Vincent, Jr. to All Major League Clubs Re: Baseball’s Drug Policy and Prevention Program, dated June 7, 1991, at 2.
131 Anabolic Steroids Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789 (1990). Although the 1991 drug policy expressly mentioned anabolic steroids as prohibited substances for the first time, the Commissioner’s Office viewed steroids to be covered by baseball’s drug policy before then because of the policy’s prohibition on the use of prescription drugs without a prescription. See Ken Rodriguez and Jorge Ortiz, Canseco Denies Using Steroids, Miami Herald, Sept. 30, 1988, at D1 (quoting spokesman Jim Small that “[a]nabolic steroids and other performance-enhancing drugs are prohibited by Major League Baseball.”).
132 See Arbitration between Major League Baseball Players Ass’n and Comm’r of Major League Baseball, Panel Decision No. 95 (Steven Howe) (Nov. 19, 1992).
Greenberg, called the majority’s decision an example of why “baseball desperately need[ed] a
collectively bargained drug agreement between the clubs and the players.”133
7. Baseball’s Drug Policies Under Bud Selig
In May 1997, then-acting Commissioner Allan H. (“Bud”) Selig reissued
baseball’s drug policy in a memorandum that was substantially unchanged from the 1991 policy
memo that had been issued by Commissioner Vincent.134 The policy was issued again by
Commissioner Selig in memoranda in March 2001 and April 2002.135 In addition, beginning in
2002, even after the drug policy was incorporated into the Basic Agreement, Commissioner Selig
issued annual memoranda reiterating the drug policy as it applied to all non-playing personnel in
Major League Baseball, including the possibility of unannounced drug tests for all such
personnel.136 During his tenure, Selig also unilaterally implemented drug testing in the minor
133 Id., dissent, at 1; see Murray Chass, A Biting Dissent on Howe Decision, N.Y. Times, Nov. 20, 1992, at B12.
134 See Memorandum from Bud Selig, chairman of the Executive Council of Major League Baseball, to All Major League Clubs, etc. Re: Baseball’s Drug Policy and Prevention Program, dated May 15, 1997.
135 See Memorandum from Allan H. “Bud” Selig to All Major League Clubs Re: Baseball’s Drug Policy and Prevention Program, dated Apr. 12, 2002; Memorandum from Allan
H. “Bud” Selig to All Major League Clubs Re: Baseball’s Drug Policy and Prevention Program, dated Mar. 21, 2001.
136 See Memorandum from Commissioner Allan H. “Bud” Selig to All Major League Clubs, etc. Re: Baseball’s Drug Policy and Prevention Program, dated Apr. 15, 2003; Memorandum from Allan H. “Bud” Selig, Chairman of the Executive Council of Major League Baseball, to All Major League Clubs, etc. Re: Baseball’s Drug Policy and Prevention Program, dated Mar. 15, 2005; Memorandum from Allan H. “Bud” Selig, Chairman of the Executive Council of Major League Baseball, to All Major League Clubs, etc. Re: Baseball’s Drug Policy and Prevention Program, dated Mar. 2, 2005; Memorandum from Allan H. “Bud” Selig, Chairman of the Executive Council of Major League Baseball, to All Major League Clubs, etc. Re: Baseball’s Drug Policy and Prevention Program Apr. 13, 2006.
leagues in 2001 and obtained the agreement of both the Players Association, in 2002, and the umpires association, in 2004, to drug treatment and testing programs.137
In early 1994, Selig and the owners proposed that a joint drug program be included in baseball’s collective bargaining agreement. That 1994 proposal would have included steroids among baseball’s prohibited substances and, as with the 1984 joint program, provided for testing of players for whom there was “reasonable cause” to believe drug use was occurring. The proposal did not provide for mandatory random drug testing, but it did include a provision for drug screening tests as part of every player’s physical examination during spring training. Under the proposal, as had been the case under the 1984 joint program, first offenders would not be subject to discipline provided that they agreed to enter a counseling and treatment program. Unlike the 1984 program, however, a second offense would carry a sixty-day suspension without pay, with third and fourth offenses carrying penalties of a one-year suspension and a lifetime ban, respectively.138
The Players Association rejected the proposal, and it was not pursued any further by the owners. Later that year, after the owners and the Players Association were unable to come to agreement on other significant economic issues, a work stoppage resulted in the early end to the 1994 season and the cancellation of the post-season and World Series. A shortened 1995 season was played without a collective bargaining agreement in place. When bargaining resumed, resolution of the economic issues that had led to the stoppage of play took priority, and the owners did not revive the proposal to implement a new joint drug policy.
Officials of the Players Association said that the clubs did not appear to regard the 1994 proposal as a high priority and did not pursue its adoption vigorously. Indeed, Don Fehr 137 See Major League Baseball’s Umpire Drug and Alcohol Testing Program. 138 See Prevention of Drug Use and Distribution (“1994 Proposal on Drugs”).
recalled that the proposal never even reached the main bargaining table during negotiations. At one general session, Fehr inquired about a media report regarding such a proposal. Subsequently, the proposal was presented and discussed only at two subcommittee sessions that occurred in late July and early August 1994. The subject was not raised again after the August 1994 strike began.
Rob Manfred, baseball’s current chief labor negotiator, recalled that anabolic steroids were included in the 1994 proposal to be proactive, and the decision to include steroids in the proposal was not based on any particular concern about the use of those substances in baseball at that time. He acknowledged that at the time the drug program was not as high a priority as economic issues.
8. 2001 Minor League Drug Prevention and Treatment Program The next round of collective bargaining would not occur until 2002. As awareness of the problem grew after the reported discovery of androstenedione in Mark McGwire’s locker, in August 1998, the Commissioner’s Office took a number of steps to lay the foundation for bargaining toward a joint drug program during 2002 negotiations. Those steps included an effort to improve regulation of dietary supplements and the introduction of a steroid education program. Then, in June 2001, Commissioner Selig unilaterally implemented a drug testing program in baseball’s affiliated minor leagues.139 Under the program, minor league players were prohibited from using, selling, or distributing drugs of abuse or anabolic steroids. The program
prohibited all Schedule III steroids and certain other substances (including clenbuterol, a non-anabolic veterinary medication that some athletes abuse in an effort to become leaner), but it did
139 See Major League Baseball’s Minor League Drug Prevention and Treatment Program
(2001).
not include some supplements with anabolic effects that were then legal for over-the-counter sale, including androstenedione and DHEA.
The program applied to all minor league players who were not members of the Players Association bargaining unit (that is, players who were not on the 40-man roster of any major league club). The Commissioner could impose drug testing unilaterally as to minor league players because they were not members of the Players Association and thus not parties to a collective bargaining agreement. The program implemented a system of random urine testing for prohibited substances, subjecting each player to up to three random tests per year in addition to any “reasonable cause” testing that might be justified in the case of any player.
The minor league program has continued to the present, with refinements in the list of prohibited substances, the number of random tests, testing procedures, and the penalties applicable for failed tests. Although the initial revision of the program was to lower the penalties that could result from failed drug tests, since August 2005 the penalties for failing a test for use of a prohibited performance enhancing substance under that program have been the same as those in place in Major League Baseball, which are discussed in more detail below: a suspension of 50 games for the first failed test; a suspension of 100 games for the second failed test; and permanent suspension from baseball for a third failed test.140 Human growth hormone and androstenedione both were added to the minor league prohibited substance list for 2002, years
140 See Memorandum from Jennifer R. Gefsky to All Minor League Clubs Re: 2006 Minor League Drug Program, dated Aug. 25, 2005; Memorandum from Commissioner Selig to All General Managers, Farm Directors, Club Physicians and Employee Assistance Professionals, Re: Minor League Drug and Steroid Testing, dated Jan. 2, 2002.
earlier than either of these substances was added to the prohibited list under the collective bargaining agreement for Major League Baseball.141
Two rounds of in-season testing were conducted on minor league players during 2001, resulting in positive tests for steroids in 439 of 4,850 tests (9.1%). Players who tested positive were not subject to discipline initially but instead were provided treatment and counseling. In 2002, there were 4,719 tests of minor league players, resulting in 227 positive tests for steroids (4.8% of total tests); 20 players were suspended (without public notice) even though in 2002, first-time positive tests resulted in treatment rather than discipline. In 2003, a total of 4,772 tests resulted in 173 positives for steroids (4% of total tests); 20 players were suspended (without public notice).142 In 2004, 4,801 total tests were conducted, resulting in 78 positive tests for “performance enhancing substances” (1.7% of total tests), and 78 suspensions, including 13 suspensions for second-time offenders. For the first time, players were subject to suspensions for first-time positive tests.143 In 2005, a total of 5,961 in-season tests resulted in 106 positive tests for performance enhancing substances (1.78% of total tests) and 106 player suspensions.144 In 2006, 6,433 total tests resulted in 23 positives (0.36% of total tests) and 23 suspensions.145
141 See Memorandum from Commissioner Selig to All General Managers, Farm Directors, Club Physicians and Employee Assistance Professionals Re: Minor League Drug and Steroid Testing, dated Jan. 2, 2002.
142 See Letter from Robert D. Manfred, Jr. to Sen. George J. Mitchell, dated Mar. 28, 2007, at 11-12; Letter from Robert D. Manfred, Jr. to Rep. F. James Sensenbrenner, Jr. and Rep. John Conyers, Jr., dated June 20, 2005, Attachment 1.
143 See Letter from Robert D. Manfred, Jr. to Sen. George J. Mitchell, dated Mar. 28, 2007, at 11-12; Letter from Robert D. Manfred, Jr. to Rep. F. James Sensenbrenner, Jr. and Rep. John Conyers, Jr., dated June 20, 2005, at 7.
144 See Letter from Robert D. Manfred, Jr. to Sen. George J. Mitchell, dated Mar. 28, 2007, at 11-12. The Commissioner’s Office also produced data for testing in the Dominican Summer League in 2004 (97 positives out of 894 tests, an 11% positive rate) and 2005
C. Informal Reasonable Cause Testing From the mid-1980s until the 2002 Basic Agreement, an informal and unwritten agreement existed between the Commissioner’s Office and the Players Association that provided for a player to be subjected to testing for use of drugs such as cocaine or marijuana when there was a “reasonable suspicion” of the player’s use of such drugs. Beginning with an incident in the summer of 2000, this informal understanding was expanded to provide for the possibility of “reasonable cause” testing based on evidence of a player’s involvement with anabolic steroids. No document memorializes the terms of the “reasonable cause” testing program, although the Commissioner’s Office made an unsuccessful effort to document it with the Players Association in 1999. Don Fehr, the executive director of the Players Association, said that the program essentially followed the terms of the “reason to believe” testing that had been agreed to in the 1984 joint drug program in that it contemplated a determination of reasonable cause related to the specific individual tested. “Reasonable cause” testing for steroids was conducted on over 25 major league players between 2000 and 2006, but we were informed that no documents exist with respect to such testing. No player ever tested positive for steroids or for any other performance enhancing substance as a result of those tests. The informal understanding was reached long before Rob Manfred joined the
Commissioner’s Office. He viewed it as a “hat in hand program, it was whatever we could get out of Gene Orza” (associate general counsel and chief operating officer of the Players
(90 positives out of 1,206 tests, a 7% positive rate), and 2005 testing in the Venezuelan Summer League (23 positives out of 272 tests, an 8.4% positive rate). Memorandum from Jennifer R. Gefsky to Robert D. Manfred, Jr., et al., dated Oct. 15, 2004 at 3; Memorandum from Jennifer R. Gefsky to Robert D. Manfred, Jr., dated Sept. 30, 2005, at 2-3.
145 See Letter from Robert D. Manfred, Jr. to Sen. George J. Mitchell, dated Mar. 28, 2007, at 11-12 .
Association). Commissioner Selig also criticized the program because it provided for testing only if the Players Association agreed to it in a specific case.
Under the program, when evidence of a player’s possible use of steroids came to the attention of the Commissioner’s Office, Manfred contacted Orza and requested that testing of that player be conducted. Those negotiations invariably lasted at least several weeks. In those instances in which the Players Association agreed to such testing it occurred only subject to the understanding that: (1) the fact of the testing was to be kept strictly confidential; (2) there would be no discipline for a first positive test; and (3) the Commissioner’s Office would agree to forego any investigatory interview of the player (medical evaluations by a physician were allowed).
Soon after the first incident in which this approach to “reasonable cause” testing was used, Manfred realized that the process was unworkable because it provided a player under suspicion with so much notice of the possibility that he would be tested that he could eliminate any prohibited substance from his system. It is therefore not surprising that none of the more than 25 players who were subjected to “reasonable cause” testing for steroids tested positive. Manfred concluded that seeking the agreement of the Players Association to revise the process before the 2002 negotiations was not worthwhile because it would distract from Commissioner Selig’s top priority in this area – a collectively bargained, mandatory random drug testing program. Manfred also believed that the principal trade-off for the “reasonable cause” testing program – foregoing player interviews in cases where there were grounds for suspicion – was not detrimental. In Manfred’s view, “[i]nterviewing players is not a productive exercise.”
Because of the strict confidentiality of the program, only a few officials of either the Players Association or the Commissioner’s Office even knew of its existence. Commissioner Selig was not informed of the results of any test conducted under the informal program.
Likewise, his director of security, Kevin Hallinan, was unaware of the testing in many instances
until he learned of it through this investigation.
In congressional testimony in June 2002, Don Fehr acknowledged the existence of
the program, referring a Senate subcommittee to a 2001 brochure prepared jointly by Major
League Baseball and the Players Association that alluded to the program.146 At the same
hearing, however, Manfred denied that anything approaching a formal program was in place,
testifying that: Contrary to the impression created by Mr. Fehr’s written statement, we do not have an agreed upon steroid policy in Major League Baseball. The Commissioner has unilaterally promulgated a policy on steroids that the union has consistently said is not binding on the players. While we have worked together in certain situations the current regulation is ad hoc at best, and dysfunctional at worst. To address this problem, we made a comprehensive proposal on steroids to the Players Association last March.147
In March 2005 congressional hearings, Manfred testified that in the summer of
2000 Boston Red Sox infielder Manny Alexander was subjected to “reasonable cause” testing
after Massachusetts state police discovered anabolic steroids and syringes in the glove
compartment of his car, which he had loaned to a clubhouse attendant.148 As discussed in the
146 Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 10 (2002); see Major League Baseball Players Association in Conjunction with Major League Baseball, Steroids and Nutritional Supplements, June 2001, at 2.
147 Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 7 (2002).
148 See Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 335 (2005). Manfred told us that his disclosure of the testing of Alexander was “not appropriate” and that the Players Association criticized him for disclosing it in response to congressional questioning.
following sections of this report, we learned of a number of other instances in which players were tested, all with negative test results.
In every instance in which the Players Association agreed to “reasonable cause” testing for steroids during the years when that understanding was in place, no other investigation was conducted into a player’s possible involvement with steroids or other prohibited performance enhancing substances. No player was disciplined for possession or use of steroids under the Major League Baseball drug policy set forth in the Commissioner’s memoranda, even though several different incidents provided evidence of possible involvement with steroids by a number of major league players. These incidents are discussed in more detail in later chapters.
In 2002, the previously unwritten understanding between Major League Baseball and the Players Association was replaced by the joint drug program that was established under the 2002 Basic Agreement. The current program provides its own formal procedures for “reasonable cause” testing.149
D. The Joint Drug Program Under the Basic Agreement, 2002 to Present
By 2002, public scrutiny of baseball and the possibility that players were using steroids and other performance enhancing substances had grown in intensity since the previous negotiations with the Players Association had concluded.150 For the first time, negotiations for a
new collective bargaining agreement presented a real opportunity to achieve agreement on mandatory random drug testing. Selig described the negotiations as a whole as “very tense and tough.” Ultimately, a joint drug program that included the possibility of a mandatory random
149 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 3(C)
(2006).
150 See infra 60-85 (discussing press reports).
testing component was agreed to just before an August 2002 strike deadline, and that program has further evolved in the succeeding years.
In March 2002, the Commissioner’s Office proposed a drug program modeled on the one implemented the previous year in the minor leagues.151 Under the proposal, the use of anabolic steroids and other substances, including androstenedione, would be prohibited; players would be subject to up to three random drug tests each year; an initial failed test would be met with treatment rather than a suspension; and repeat offenders would be subject to discipline.152 The Players Association, which historically had opposed mandatory random drug testing, did not immediately respond.
In a June 2002 cover story, Sports Illustrated reported that Ken Caminiti had admitted using anabolic steroids in 1996, the year he won the National League Most Valuable Player award, and for a number of seasons thereafter.153 In the article, Caminiti also said that steroid use was widespread in Major League Baseball, an assertion that was supported by others quoted in the story.154 The Sports Illustrated article, together with allegations by former American League outfielder (and former American League MVP) Jose Canseco about widespread steroid use in baseball, spurred a June 2002 hearing of a U.S. Senate subcommittee.
151 See Draft Proposal of Major League Baseball’s Joint Drug Prevention and Treatment Program, dated Mar. 6, 2002. The Players Association has noted that the proposal was not raised until negotiations had been ongoing for a year.
152 See Draft Proposal of Major League Baseball’s Joint Drug Prevention and Treatment Program, dated Mar. 6, 2002; Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the S. Comm. on Commerce, Science and Transp., 107th Cong. 7 (2002) (testimony of Robert D. Manfred, Jr., executive vice president, labor and human resources, Major League Baseball).
153 See Tom Verducci, Totally Juiced, Sports Illustrated, June 3, 2002, at 34.
154 Id.
At the Senate hearing, Manfred described a meeting of several team physicians in January 2001 in which the physicians expressed their concern to Commissioner Selig that steroids were presenting a threat to players and to the integrity of the game. Manfred noted that there had been a 16% increase in the number of players going on the disabled list over a three-year period, and the length of their stays on the disabled list had grown longer. According to Manfred, the consensus among the team physicians at the meeting was that use of steroids had been a contributing factor.155
The physicians meeting that Manfred described was held in Milwaukee, and was attended by, among others, Dr. William Bryan of the Houston Astros, Dr. John Cantwell of the Atlanta Braves, Dr. John E. Conway of the Texas Rangers, and Dr. Michael Mellman of the Los Angeles Dodgers. The meeting was convened by the Commissioner in anticipation of the coming negotiations with the Players Association about a drug program and also to discuss implementation of the minor league drug testing program that year. Dr. Mellman recalled that all of the physicians who attended the meeting had suspicions about steroid use on their respective teams and said “we all had stories” about steroid use by players and its impact on their health. He remembered that the consensus among the team physicians was that steroid use was “prevalent” in Major League Baseball at the time.
Dr. Mellman believed that the subject of steroid use in baseball had been under discussion before the meeting but felt that Commissioner Selig expressed a genuine sense of concern about the issue at the meeting. Selig recalled that he came away from the meeting being “deeply troubled about steroids.”
155 See Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 5-6 (2002) (testimony of Robert D. Manfred, Jr., executive vice president, labor and human resources, Major League Baseball).
At the June 2002 hearing, several Senators pressed Don Fehr of the Players Association to commit that drug testing for steroids would be included in baseball’s new collective bargaining agreement.156 He responded that the Association would consider in good faith the issues raised by the Commissioner’s March 2002 drug program proposal, but he added that testing raised a number of difficult issues, including the invasion of players’ privacy rights. In an article published two days later, Marvin Miller, the former executive director of the Players Association, asserted that the Commissioner’s proposal was unworkable and amounted to “moral grandstanding” intended to make it appear that the Players Association was the obstacle to drug testing in baseball rather than to effect real reform.157
Discussions continued, however, and on August 30, 2002, the clubs and the Players Association reached agreement on the terms of a new Basic Agreement for the period 2003-06. In addition to a number of new economic provisions, for the first time the collective bargaining agreement included a form of mandatory random drug testing as part of a new joint drug prevention and treatment program.158
Commissioner Selig has stated that the drug testing program was the last item on which the parties reached agreement and that, while the compromise reached was not perfect, “at least it was a start.”159 In his interview for this investigation, Selig expressed the view that the 2002 program was a necessary step toward achieving the joint drug program that is in effect in
156 See Steroid Use in Professional Baseball and Anti-Doping Issues in Amateur Sports: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the
S. Comm. on Commerce, Science and Transp., 107th Cong. 20-31 (2002).
157 See Allen Barra, Marvin Miller: Don’t Trust Baseball’s Drug-Testing Proposal, salon.com, June 20, 2002.
158 See Major League Baseball’s Joint Drug Prevention and Treatment Program (2002) at Attachment 18 to Basic Agreement.
159 See Barry M. Bloom, Selig: Drug Use Drops Below 1 Percent, mlb.com, Feb. 1, 2006.
Major League Baseball today. Don Fehr of the Players Association said that the 2002 negotiations were the first time the owners seriously pursued a proposal that called for random testing of players.
The 2002 joint drug program prohibited the use, possession, distribution, or sale of a number of drugs, including all steroids listed on Schedule III of the Controlled Substances Act or any substances that later were added to that schedule or to Schedule II of the Act. (This provision resulted in the automatic addition of androstenedione and other steroid precursors, other than DHEA, to baseball’s prohibited list when Congress enacted the Anabolic Steroids Control Act of 2004. It also meant that human growth hormone was not automatically included because it is not a “controlled substance” under current federal law.) The program also provided for the possible automatic addition of a number of other substances, which were listed in an addendum, based on congressional action to regulate them generally.160
Drug testing beyond 2003 was not automatic under the program. Random testing only would be implemented beginning in 2004 if 5% or more of the players tested during anonymous “survey testing” in 2003 tested positive for steroids, with a refusal to submit to a test counting as a positive result.161 If the 5% threshold was met, however, mandatory random testing would begin with the 2004 season, carrying with it the possibility of discipline if a player failed a second steroids test (after being placed on a treatment track following a first positive test).162
160 Major League Baseball’s Joint Drug Prevention and Treatment Program, §§ 1(D)(2), 2 & Addendum C (2002).
161 Id., §§ 3(A), (F).
162 Id., §§ 3(A), 9(B).
In November 2003, Major League Baseball announced that between 5% and 7%
of players who participated in the survey testing in 2003 had tested positive for steroids;
mandatory random testing therefore was triggered to begin in the 2004 season.163 In 2004,
1,133 tests were conducted under the program, resulting in 12 undisputed positive results for
steroids.164 No players were suspended as a result of these positive tests because the program did
not provide for discipline for a first-time offender at that time.
During late 2003 and into 2004, the issue of steroids in baseball again attracted
attention after the offices of BALCO were raided by federal agents and news stories appeared
reporting that several baseball players had appeared before a federal grand jury that was
investigating BALCO.165 In his January 2004 state of the union address, President George W.
Bush denounced the use of steroids in elite sports and called on athletes, owners, and unions to
163 1,369 tests were conducted in 2003, and 96 of those tests were positive for steroids. Although 13 of the 96 positives were disputed by the Players Association, the disputes were never resolved because the positive rate was above the 5% threshold under either calculation. See Letter from Robert D. Manfred, Jr. to Rep. Thomas Davis and Rep. Henry A. Waxman, dated Mar. 14, 2005, at 3; Letter from Robert D. Manfred, Jr. to Rep. F. James Sensenbrenner, Jr. and Rep. John Conyers, Jr., dated June 20, 2005, at Attachment 1.
In early 2004, federal law enforcement agents seized data concerning players who the agents concluded had tested positive in 2003 survey testing. A later appellate court decision stated that the names of “over one-hundred” players other than players who were implicated in the BALCO investigation were identified by law enforcement agents. See United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 924 (9th Cir. 2006). The government’s reported list and the data that it was based on remain under seal. As a result, we did not have access to the list or the data.
164 See Letter from Robert D. Manfred, Jr. to Rep. Thomas Davis and Rep. Henry A. Waxman, dated Mar. 14, 2005, at 2; see also Letter from Robert D. Manfred, Jr. to Rep. F. James Sensenbrenner, Jr. and Rep. John Conyers, Jr., dated June 20, 2005, at Attachment 1. For an additional 27 tests, the results either were disputed or raised the possibility that the players were ingesting steroid precursors that were not banned at the time. See id.
165 See infra 112-20.
address the issue.166 Three weeks later, U.S. Attorney General John Ashcroft announced an indictment against several individuals involved with BALCO.167 In February 2004, Commissioner Selig issued a directive to all major league owners, front office executives, and managers to refrain from commenting on “the BALCO proceedings specifically and performance-enhancing drugs generally,” and asked that the same request be conveyed to active major league players.168
In March 2004, the Senate subcommittee held another hearing on the subject of steroids in baseball. Senator John McCain addressed Don Fehr of the Players Association about perceived weaknesses in baseball’s steroids policy, telling him:
Your failure to commit to addressing this issue straight on and immediately will motivate this committee to search for legislative remedies. . . . I can tell you and your players that you represent the status quo is not acceptable. And we will have to act in some way unless the players at Major League Players Association act in affirmative and rapid fashion. . . . [T]he integrity of the sport, and the American people, demand a certain level of adherence [to] standards that, frankly, is not being met at this time.169
Fehr responded: “We’re certainly willing to sit down and discuss any new and different ideas and to look at matters in light of new information.” At the same hearing, Commissioner Selig
166 State of the Union Address, President George W. Bush, The White House Office of Communications (Jan. 20, 2004).
167 Press Release, Department of Justice, Four Individuals Charged in Bay Area with Money Laundering and Distribution of Illegal Steroids (Feb. 12, 2004).
168 See Memorandum from Commissioner Allan H. Selig to All Major League Owners, Club Presidents, Chief Executive Officers, General Managers and Field Managers Re: Performance-Enhancing Substances and BALCO, dated Feb. 26, 2004.
169
Effectiveness of Drug Testing in Preventing Steroid Use, Hearing Before the S. Comm. on Commerce, Science and Transp., 108th Cong. 73 (2004).
said: “I realize that we have work to do. We need more frequent and year-round testing of players. We need immediate penalties for those caught using illegal substances.”170
Less than a year later, Major League Baseball and the Players Association agreed to revisions to the joint drug program, which they described in a January 2005 joint press release.171 For the first time, human growth hormone was added as a prohibited substance under the program (together with seventeen other compounds).172 In addition, the parties agreed to more stringent penalties for positive steroids tests, including: a 10-day suspension for the first positive test; a 30-day suspension for the second positive test; a 60-day suspension for the third positive test; a one-year suspension for a fourth positive test; and additional, progressive discipline for any further positive tests.173
Even as the 2005 revisions to the joint drug program were being finalized, however, the February 2005 release of Jose Canseco’s memoir, Juiced, led to a March 17, 2005 hearing on the issue before the U.S. House of Representatives Committee on Government Reform.174 One month later, Commissioner Selig sought the Players Association’s agreement to
170 Id. at 67, 74.
171 Press Release, Major League Baseball, MLB and Players Association Reach Tentative Agreement on New Steroid Policy (Jan. 13, 2005).
172 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 2(B) (2005).
173 See id. at § 9(B). The initial draft of the program suggested the possibility that a first-time offender could be fined and not suspended, but in testimony and a follow-up letter, Rob Manfred stated that this reading was not consistent with the parties’ agreement and that a 10-day suspension would be automatic for any first-time positive test for steroids. See Letter from Robert D. Manfred, Jr. to Rep. Joseph Barton, Rep. Cliff Stearns and Rep. Nathan Deal, dated Mar. 24, 2005.
174
See Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 2, 10-11 (2005); see also Letter from Robert D. Manfred, Jr. to Rep. Joseph Barton, Rep. Cliff Stearns and Rep. Nathan Deal, dated Mar. 24, 2005.
increased penalties of a 50-game suspension for first-time offenders, a 100-game suspension for second-time offenders, and a permanent ban for third-time offenders. The Commissioner also recommended other changes, including adding amphetamines as banned substances.175 On November 15, 2005, the Commissioner and the Players Association jointly announced revisions to the program that implemented many of Selig’s proposals.176 The program in effect today remains essentially unchanged from that revised program.177
The 2005 amendments added a new provision permitting either party to suspend drug testing in the event of a “governmental investigation” that sought drug testing data as to particular players (as opposed to data regarding testing as a whole).178 To date, neither party has exercised its prerogative to suspend testing under this provision.
Before the provision was added to the program, however, testing was suspended for some players for a period during 2004. In April 2004, federal agents executed search warrants on two private firms involved in the 2003 survey testing, Comprehensive Drug Testing, Inc. and Quest Diagnostics, Inc.; the warrants sought drug testing records and samples for ten major league players connected with the BALCO investigation. In the course of those searches,
175 See Letter from Commissioner Allan H. (Bud) Selig to Donald M. Fehr, dated Apr. 25, 2005.
176 See Press Release, Major League Baseball Office of the Commissioner and Major League Players Association, MLB, MLBPA Announce New Drug Agreement, dated Nov. 15, 2005; Major League Baseball’s Joint Drug Prevention and Treatment Program (2006). Amphetamines and other stimulants were added to the joint drug program, but positive tests for these substances were subject to a different scheme of penalties, with no penalty for the first failed test, a 25-game suspension for the second failed test, an 80-game suspension for the third failed test, and permanent suspension for a fourth failed test. See Major League Baseball’s Joint Drug Prevention and Treatment Program §§ 2(C), 3(A), 8(C) (2006).
177 See 2007 Basic Agreement Between the 30 Major League Clubs and the Major League Baseball Players Association, Art. XXVII.
178 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 6(E) (2006); Major League Baseball’s Joint Drug Prevention and Treatment Program, § 6(E) (2005).
the agents seized data from which they believed they could determine the identities of the major league players who had tested positive during the anonymous survey testing.179 As discussed in more detail below, a moratorium on testing was agreed to between the Commissioner’s Office and the Players Association to provide the Players Association the opportunity to notify the affected players that the information was in the hands of the government.180
The Players Association filed motions in federal court seeking the return of all of the property seized and quashing certain other grand jury subpoenas issued after the initial search warrants were executed. The district court granted those motions, but the U.S. Court of Appeals for the Ninth Circuit reversed those orders, finding that the government’s seizure of the information was appropriate and lawful. The appellate court remanded the case for further proceedings in the district court as to certain of the seized information.181 As of the date of this report, a motion by the Players Association for reconsideration of the decision is still pending.
179 See United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 920-24 (9th Cir. 2006).
180 See infra at 281-84.
181 See Comprehensive Drug Testing, Inc., 473 F.3d at 943.
IV. Early Indications of Steroid Use in Baseball (1988 to August 1998) As noted earlier in this report, in 1994 Congress passed and the President signed into law the Dietary Supplement Heath and Education Act. It was approved unanimously by the Senate, without objection. I was the Majority Leader of the Senate when DSHEA was approved. It was one of thousands of measures that the Senate considered during my tenure. Today, thirteen years later, I have only a vague recollection of the Senate’s consideration of the Act. However, with the benefit of hindsight, knowing what I now know, I regret that I did not speak out against the manner of regulating supplements that resulted from enactment of that law. I have had other similar experiences. As a result, I am well aware of the difficulty, the complexity, and sometimes the unfairness of judging past actions with the benefit of knowledge of later events. Nonetheless, when properly and carefully done, analysis of the past can be a useful, sometimes indispensable, guide for avoiding mistakes in the future. As the discussion in the following sections demonstrates, baseball’s response to the use of performance enhancing substances was slow to develop and was initially ineffective, but it gained momentum after 2002. A review of the early warning signals can be valuable in evaluating the current program and, most importantly, in helping guide future actions. Many baseball officials have pointed to the intense media scrutiny in August 1998 that followed the discovery of androstenedione in Mark McGwire’s locker as the event that focused their attention on whether baseball had a problem with the use of performance enhancing substances. There were earlier incidents and many published reports, but they were scattered across several years and around the country. Collecting and reading them all at once, as I have done, makes it obvious in hindsight what was happening.
There have been many estimates of use. In 2002, former National League Most Valuable Player Ken Caminiti estimated that “at least half” of major league players were using anabolic steroids. Dave McKay, a longtime coach for the St. Louis Cardinals and the Oakland Athletics, estimated that at one time 30% of players were using them. Within the past week, the former Cincinnati Reds pitcher Jack Armstrong estimated that between 20% and 30% of players in his era, 1988 to 1994, were using large doses of steroids while an even higher percentage of players were using lower, maintenance doses of steroids.182 There have been other estimates, a few higher, many lower, all impossible to verify.
The players who used performance enhancing substances bear an obvious share of the responsibility for the problem; but others, both in and out of baseball, share in that responsibility. Even before 1998 many in baseball were aware of the problem; indeed, several baseball officials talked publicly about it then. Those who knew about it should have insisted that something be done. The issue did not receive the same degree of attention that later followed the McGwire incident.
A. Jose Canseco and the First Public Speculation About Steroids in Baseball
In a widely reported incident during the Summer Olympics in September of 1988, the Canadian sprinter Ben Johnson was stripped of a gold medal in the 100-meter sprint for testing positive for stanozolol, an anabolic steroid sold under the brand name Winstrol.183 Days later, the first public speculation appeared about a player’s use of steroids in Major League Baseball.
In an appearance on the CBS program Nightwatch on September 28, 1998, Washington Post baseball writer Thomas Boswell described Jose Canseco as “the most conspicuous example of a player who has made himself great with steroids.” Boswell said he
182 See Wayne Coffey, Former All-Star Jack Armstrong Hoping to Set the Record Straight on Steroid Era, N.Y. Daily News, Dec. 9, 2007. 183 Michael Janofsky, Johnson Loses Gold to Lewis After Drug Test, N.Y. Times, Sept. 27, 1988, at A1.
based this assertion on comments made by Tony La Russa, then the manager of the Oakland Athletics, to the effect that Canseco had made “some mistakes” earlier in his career. La Russa said in response that he had not intended to imply that Canseco had used steroids, and Canseco denied that he had done so.184
Soon after Boswell’s remarks, the Oakland Athletics began the American League Championship Series against the Boston Red Sox in Fenway Park. Canseco was met with loud chants deriding him for his alleged steroid use, prompting Canseco to flex his biceps and tip his cap to the Fenway fans for “their originality.”185 A spokesman for the Commissioner’s Office said that baseball would not investigate Canseco’s possible steroid use because baseball had “no information about his usage or the usage of any other player in the major leagues.”186
Sandy Alderson, Oakland’s general manager at the time, remembered the chanting, but in our interview he said that he did not then believe that Canseco had used steroids. Later, as one of the most senior executives in Major League Baseball, Alderson came to believe that baseball had a problem with steroid use, but he did not come to that conclusion until sometime after the 1998 articles appeared about McGwire’s use of androstenedione.187 In congressional testimony in 2005, Alderson said that during the 1990s, other factors “obscured a steroid problem”:
184 See Report That He Used Steroids Denied by Athletics’ Canseco, St. Louis Post-Dispatch, Oct. 1, 1988, at C3.
185 Peter Gammons, Socking it to the Red Sox: With an All-Around Performance Worthy of the A's of the 1970s, Oakland Beat Boston for the Pennant in Four Straight, Sports Illustrated, Oct. 17, 1988, at 34.
186 Ken Rodriguez and Jorge Ortiz, Canseco Denies Using Steroids, Miami Herald, Sept. 30, 1998, at D1.
187 See Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 307 (2005) (statement of Sandy Alderson, then-executive vice president for baseball operations, Major League Baseball).
Home runs and run production were increasing during the time but not always year to year. At the same time, strength programs were in vogue across baseball. Hitter-friendly ballparks were being built. Expansion had occurred in 1993 and again in 1998. Two seasons, ’94 and ’95, had been shortened by a players’ strike. Bat design had changed and there was an emphasis with many clubs on having more offensive players even at traditionally defensive positions.188
Just before the 1989 season began, David Valdez, Jose Canseco’s assistant and traveling companion, pleaded guilty to possession of a handgun while clearing security in Detroit Metropolitan Wayne County Airport. He was alleged to have been in possession of steroids when the gun was seized. Canseco had been with Valdez at the time, but he later denied any connection to the steroids or even knowing that Valdez was carrying steroids, explaining to a reporter that: “From what I know when he was young he was anemic and they did prescribe some pills for weight gain.”189 Valdez said that he admitted the gun charges to spare Canseco embarrassment about the steroids. He explained that the steroids belonged to him, not Canseco, but Valdez added that he did not know the pills he was carrying were steroids at the time of his arrest.190
Given Canseco’s more recent and highly publicized admissions of his own steroid use, the connection between Canseco and the steroids Valdez was carrying while traveling with him now appears obvious. At the time, however, a report in the San Francisco Chronicle described the connection as “tenuous” (although soon thereafter a Chronicle sports columnist expressed some skepticism and also stated that baseball did “not even have a rule against steroid
188 Id.
189 David Bush, Steroids Found on Canseco’s Friend Incident at Detroit Airport, S.F. Chron., Mar. 22, 1989, at D1.
190 John Castine, Friend Says He Pleaded Guilty to Protect A’s Canseco, New Orleans Times-Picayune, Mar. 22, 1989, at C10.
use” and “[t]heoretically, a baseball player could keep a bottle of steroids in his locker in the clubhouse and eat them during interviews”).191
Fay Vincent, who served as Commissioner from September 1989 to September 1992, said years later that he was “wrong not to jump all over the steroids issue”:
There were signs. There were rumors. We all heard about Canseco. But
the baseball world – and I was one of them – thought steroids was a
football problem, not a baseball problem. We were totally wrong.192 In hindsight, Vincent told me that he failed to notice the emergence of steroids because he was focused on cleaning up the problem of cocaine use by major league players.193
In 2005, after Canseco’s memoir Juiced was published, former Oakland manager Tony La Russa told “60 Minutes Wednesday” that when Canseco played for Oakland he “would laugh about the time that other guys were spending [in the gym] and how he didn’t have to, because he was, he was doing the other ‘helper.’ He was having help in a different way. You know, the easy way.”194 The San Francisco Chronicle reported that La Russa said that when Canseco got his contract, “he changed. He’d talk about the juice, and others would talk to him about his health.”195 La Russa also reportedly said that in 1990 or 1991, Canseco “stopped
191 David Bush, Steroids Found on Canseco’s Friend Incident at Detroit Airport, S.F. Chron., Mar. 22, 1989, at D1; C.W. Nevius, Thank you, Ben Johnson, S.F. Chron., Mar. 24, 1989, at D1.
192 Jay Mariotti, Pleading the Fifth Can’t Hide the Truth, Chicago Sun-Times, Mar. 17, 2005, at 119.
193 In addition to Steve Howe, whose lifetime ban was overturned after Vincent was removed as Commissioner, Vincent suspended pitcher Rick Leach, catcher Gilberto Reyes, outfielder Otis Nixon, first baseman Leon Durham, and pitcher Pascual Perez for violating the Commissioner’s drug policy. As mentioned above, Vincent amended baseball’s drug policy in June 1991 to add anabolic steroids as prohibited substances, soon after the Anabolic Steroids Control Act of 1990 became effective.
194 Associated Press, La Russa: Canseco Had Helper, Wash. Post, Feb. 17, 2005, at D9.
195 John Shea, Steroid Accusations Leave Former Teammates, La Russa Livid,
S.F. Chron., Feb. 7, 2005, at D1.
working, he got bigger than ever, and the coaches and I got suspicious and actually confronted him.”196 Similarly, Dave McKay, an Oakland coach from 1984 to 1995, told the New York Times that Canseco would speak openly about steroids and ignore advice to stop using them.197 He was also quoted in the Toronto Sun as having said that: “We had one guy who talked about steroids and that was Jose. . . . The most common question I was asked was: ‘I won’t get too big, will I?’”198
But when La Russa and McKay were interviewed in connection with this investigation, they both denied having direct knowledge that Canseco had used steroids. La Russa claimed that he had “exaggerated” in his CBS interview, that Canseco had never used the word “helper,” and that, in fact, La Russa had never confronted Canseco about his use of steroids. When asked why he would “exaggerate” on national television, La Russa said that he questioned Canseco’s motives in making the statements he had made and he felt that Canseco was trying to impugn the achievements of his former Oakland teammate Mark McGwire and the Oakland teams of the late 1980s. McKay did not deny the accuracy of his reported statements, but he claimed that the statements did not amount to an acknowledgment that he had first-hand knowledge of Canseco’s use of steroids. McKay said that when he stated that “we had one guy who talked about steroids and that was Jose,” he meant only that if any player might have used steroids it was Canseco. McKay also heard other people mention that Canseco might have used steroids.
196 Bernie Miklasz, Previous Defense of Canseco Hurts La Russa’s Case, St. Louis Post-Dispatch, Feb. 14, 2005, at D1.
197 Tyler Kepner, La Russa Disputes Claims in Canseco’s Book, N.Y. Times, Feb. 7, 2005, at D1.
198 Bob Elliot, McKay: Anger to Pity: Ex-A’s Coach Tells Bob Elliot that He Expects to Be Named in Canseco’s Controversial Book, Toronto Sun, Feb. 10, 2005, at Sports 6.
Even while providing these explanations of their prior statements, both La Russa and McKay acknowledged that they had suspected Canseco of using steroids when he was playing with Oakland. McKay said: “It just got to the point where you knew he [used them].” Neither La Russa nor McKay shared their concerns with the Oakland front office, however. According to La Russa, “I thought, what’s the use? So I didn’t say anything.”
Former Oakland general manager Sandy Alderson strongly denied a statement in the book Juicing the Game that “[b]y 1992, even Alderson thought Canseco was a steroid user.” Alderson had been familiar with the incidents reported in the media, but he still did not believe at the time that Canseco was using steroids and did not look into it. Alderson did, at one point, consider testing one or two players for steroids, possibly including Canseco (but, Alderson made clear, not Mark McGwire). The club obtained testing equipment and arranged for a testing laboratory, but the idea was abandoned out of a concern that the testing would violate baseball’s collective bargaining agreement. Canseco was traded to the Texas Rangers in 1992 but, according to Alderson, not out of any concern relating to his alleged involvement with steroids.
B. Lenny Dykstra Evokes Suspicions of Steroid Use
As with Jose Canseco, Philadelphia Phillies center fielder Lenny Dykstra was the subject of several articles speculating about his possible use of steroids.199 The first appeared at the start of the 1990 season, when Dykstra credited “real good vitamins” for adding 30 pounds of muscle to his frame during the off-season. Similar articles appeared early in 1991 and after a break-out season in 1993.200 During our investigation, Philadelphia’s then-general manager Lee
199 Dykstra’s name would come up years later in connection with a government investigation of Kirk Radomski. See infra at 149-50.
200 See Rick Hummel and Dan O’Neil, Cox Hopes to Be Back in Month . . . Says 25 Starts Are Possible This Season, St. Louis Post-Dispatch, Apr. 16, 1990, at 4C; Ray Ratto, Opponents Sense Giants Out-of-Kilter Rosen, Craig Suddenly Have Been Forced to Patch Roster with
Thomas confirmed that he had suspicions that Dykstra might have been using performance enhancing substances when he arrived at spring training in 1993 noticeably bigger. Thomas told Dykstra he hoped he had not done anything to jeopardize his health, and in response Dykstra denied using steroids.
Philadelphia’s then-head athletic trainer Jeff Cooper told us that during this period he observed a Phillies player whose use of steroids was “obvious.” Cooper would not divulge the player’s identity to us. He told us that he approached the general manager (apparently Thomas) to report his concerns, and the general manager advised Cooper that he should raise the subject with the player directly. Cooper then did raise the issue with the player, who said it was none of Cooper’s business. The matter went no further.
C. The 1991 Major League Baseball Alcohol and Drug Use Survey
In 1990, Major League Baseball commissioned a survey of alcohol and drug use among player and non-player personnel. The project was a joint effort of the Players Association and the owners’ Player Relations Committee. Most of the responses were gathered during spring training in 1991.201
Approximately 80% of major league players participated in the survey. Of the 880 players who responded (including some minor league players), only 1.5% reported using anabolic steroids during their lifetime, and only 0.5% reported use of steroids in the preceding
Bodies from Waiver Wire, National League Notebook, S.F. Chron., Apr. 7, 1990, at D3 (“Center fielder Len Dykstra, who was supposed to be trade bait last winter, came back 26 pounds heavier and proceeded to go 4-for-4 with a double Sunday in his first official game of the season. Reason: ‘I did a lot of lifting and free weights. And I took some very good vitamins.’ Uh-oh.”); Stan Hochman, Thomas: Blame Union, Not Phils, Phila. Daily News, Mar. 16, 1991, at 45 (“Guys saying that if Lenny Dykstra hits .325 we’re not worried about what happens off the field. We are very concerned. But our hands are tied. We’re handcuffed by the union.”); Ross Newhan, In Your Face if Not Your Hair, L.A. Times, Mar. 20, 1994, at Sports 3.
201 George De Leon, Ph.D., and Stanley Sack, Ph.D., Major League Baseball Alcohol and Drug Use Survey, 1991, Final Report (Draft 3/93).
12 months. While the study’s authors acknowledged that underreporting was certainly a possibility, participating players admitted use of amphetamines and certain serious drugs of abuse at much higher rates. The study’s authors concluded that “there is little indication of lying and the obtained rates should be taken as reliable but conservative estimates.”202
The survey, and the cooperation between owners and the Players Association that brought it about, reflected an admirable joint commitment to self-examination of drug use in the game at the time. The authors concluded that “[t]he major purpose of this project has been accomplished. MLB has established a scientific data base to inform alcohol and drug policy and planning.”203 The study’s authors made several recommendations, most notably that “MLB should develop a comprehensive integrated health-oriented preventive education, treatment, and aftercare program for the entire MLB community” and that “MLB should launch periodic surveys to monitor changes and trends in substance use . . .”204
D. Baseball Writers Address the Issue, 1992-95
In March 1992, Pittsburgh columnist Gene Collier addressed the perception that baseball was not a sport for steroids users. Collier derided the suggestion that the game of baseball “is simply too complex to be positively augmented by some injectable.” He quoted Penn State professor Charles Yesalis, an outspoken critic of steroid use, who said that steroids were a “natural” fit for baseball:
I don’t know how common it is, but I have colleagues in the sports medicine community who say “Yeah, they’re doing it. . . . You know baseball players are lifting weights. They’re in gyms where the steroids are, and pro baseball players know pro football players.”
202 Id. at 53 (emphasis in original). 203 Id. at 70. 204 George De Leon, Ph.D., and Stanley Sack, Ph.D., Major League Baseball Alcohol and
Drug Use Survey, 1991, Presentation Report, at 23.
After discussing the problems posed by human growth hormone and other substances that were difficult to detect in drug tests, Collier concluded that baseball “should consider testing if only to show how it feels about a level field being mandatory.”205
In August 1992, Peter Gammons reported in the Boston Globe that while there was not much discussion of steroid use in baseball, “there’s a growing suspicion that it’s much greater than anyone lets on.” Ten years before Rob Manfred’s 2002 Senate testimony, Gammons wrote that a recent increase in injuries in Major League Baseball could be the result of steroid use, as “players’ muscle mass becomes too great for their bodies, resulting in the odd back and leg breakdowns . . .”206
The issue was mentioned from time to time in articles over the next several years. One Long Beach, California reporter asserted in June 1993 that the use of steroids in baseball was “starting to run rampant.” A law review article in spring 1994 argued for separate drug testing programs in baseball for drugs of abuse and performance enhancing substances.207
A vocal early observer of the growing steroids problem in baseball was Bob Nightengale, who was then a baseball writer with the Los Angeles Times (and now covers baseball for USA Today). In a July 1995 article entitled “Baseball Still Doesn’t Get It,” Nightengale observed:
205 Gene Collier, Baseball’s Field May Not Be Level, Pittsburgh Post-Gazette, Mar. 22, 1992, at C1.
206 Peter Gammons, They’ve Met Disappointment, Boston Globe, Aug. 16, 1992, at 48.
207 See David Cunningham, More Than a Few Make Much Ado Over Voodoo, Long Beach Press-Telegram, June 28, 1993, at E3; Edward Rippey, Contractual Freedom Over Substance-Related Issues in Major League Baseball, 1 Sports Lawyers J. 143, 156 (Spring 1994); see also Bob Nightengale, Herzog, Others Say Lamont Was Right to Look for Cheating,
L.A. Times, July 20, 1994, at Sports 1 (“Said Angel second baseman Harold Reynolds: ‘You hear about some guys using steroids for some extra pop, but not cork.’”).
Come on, you know there’s no steroid use in baseball. Those bodies and dramatic increases in strength and bat speed are only the byproducts of these athletes dedicating their bodies to the gym all winter. That’s what baseball tells us.208
Several weeks later, a Nightengale story quoted a number of major league players and front office executives who expressed concern over the prevalence of steroid use in Major League Baseball.209 Originally published in the Los Angeles Times, the story was picked up by wire services over the next few days and a revised version ran in the next issue of the Sporting News, in which steroid use was called “baseball’s deep, dark, sinister secret.”210
In the article, Randy Smith, then the general manager of the Padres, was quoted as having said that “[w]e all know there’s steroid use, and it’s definitely become more prevalent.” He estimated that “10% to 20%” of players were using steroids. Another unnamed general manager said that he “wouldn’t be surprised if it’s closer to 30%” and that he thought the entire lineup of one American League team a few years earlier “may have been on it.” He said he was “seeing guys now who were washed up five years ago, and now they’ve got bat speed that they’ve never had before. It’s insane.” Kevin Malone, then-general manager of the Montreal Expos, said that he heard “rumors that usage is way up, and it would be nice to know if those are accurate.” Players also were quoted in the article, with Frank Thomas of the Chicago White Sox
208 Bob Nightengale, Baseball Still Doesn’t Get It, Palm Beach Post, July 2, 1995, at C13.
209 Bob Nightengale, Steroids Become an Issue, Baseball: Many Fear Performance-Enhancing Drugs Is Becoming Prevalent and Believe Something Must Be Done, L.A. Times, July 15, 1995, at C1.
210 Bob Nightengale, Steroids in baseball? Say it ain’t so, Bud., Sporting News, July 24, 1995, at 16; see, e.g., Bob Nightengale, Steroid Use Said Rampant in Baseball, New Orleans Times-Picayune, July 16, 1995, at C1; Bob Nightengale, Steroids Muscling Their Way Into Baseball, Lack of Testing Fuels Suspicions Among Players, N.J. Record, July 18, 1995, at Sports 3.
saying that he’d “love to see testing” and future Hall of Fame member Tony Gwynn of the Padres calling steroids “the big secret we’re not supposed to talk about . . . .”211
Commissioner Selig was quoted in the article as having said that “[i]f baseball has a problem, I must say candidly that we were not aware of it . . . .It certainly hasn’t been talked about much.” Nightengale reported that, according to Selig, the issue had been discussed among the owners at a meeting eighteen months earlier and that “no one had any evidence that steroid use should be a concern.”212 Kevin Hallinan, baseball’s longtime security director who retired in 2007, confirmed that no inquiry was conducted in the wake of this article or other early press reports about the issue.
E. The 1996 Offensive Explosion and Ken Caminiti’s MVP
The 1996 season began with an outbreak of hitting so dramatic that Commissioner Selig considered it to be “startling.”213 Immediately, speculation turned to the use of steroids by baseball’s big hitters, with pitcher Tim Belcher saying: “Everybody’s blaming the pitchers, but it’s smaller strike zones, smaller parks and steroids. That’s not a good combination.”214
In a May 1996 article, Sporting News writer Steve Marantz compared baseball’s drug policy to the policies of other sports, concluding that baseball’s “failure to screen for
211 See Bob Nightengale, Steroids Becomes an Issue, Baseball: Many Fear Performance-Enhancing Drugs Is Becoming Prevalent and Believe Something Must Be Done, L.A. Times, July 15, 1995, at C1.
212 Id. 213 Ross Newman, Pitchers Hit the Showers in April, L.A. Times, May 5, 1996, at Sports
10. On the phenomenon generally, see Chuck Johnson, Season Starts with a Bang, USA Today, May 1, 1996, at C3; Howard Thomas, Baseball’s Offensive Punch Too Much?, Capital Times (Madison, WI), May 1, 1996, at B1; John Steigerwald, Power Play Aren’t All These Home Runs Exactly What Baseball Needs?, Pittsburgh Post-Gazette, May 4, 1996, at B3; Jack Etkin, Is All This Scoring Good for Baseball? Offense Runs Game in 1990s, Denver Rocky Mountain News, May 30, 1996, at C15.
214 Ross Newhan, Pitchers Hit the Showers in April, L.A. Times, May 5, 1996, at Sports
10.
steroids” was the most glaring failure of its drug policy. “Look around at baseballs flying over fences, and at the pumped-up torsos swinging bats, and ask yourself if everybody is playing fair.” He quoted Dr. Robert Voy, formerly the physician for the U.S. Olympic team and the author of a book published after the 1988 games that analyzed the steroids problem, who said: “One has to question the sudden prowess of certain athletes. . . . It may come from the weight room, but in my experience weight rooms are where steroid use starts.”215
In a July 1996 article in the Pittsburgh Post-Gazette, Ron Cook analyzed the possible explanations for the season of dramatic power hitting. Among other possible reasons, Cook wrote: “There are other factors, to be sure. Hitters are bigger and stronger. (Can you say steroids, ladies and gentlemen).” He quoted Jim Leyland, then the manager of the Pittsburgh Pirates, as saying: “I’d swear on a stack of bibles we don’t have steroids on this team . . . but I wouldn’t know about the rest of baseball.” The article also reported estimates that as many as 35% of major-league players were using steroids and noted that Jose Canseco and Lenny Dykstra had been taunted by fans for their alleged steroid use.216
Years later, in a summer 2002 Sports Illustrated article, Ken Caminiti would acknowledge that his breakout offensive performance in 1996 was aided by the use of anabolic steroids.217 But that revelation was six years in the future in November 1996, when Caminiti was chosen the National League Most Valuable Player in a unanimous vote after hitting 40 home runs and driving in 130 runs.218
215 Steve Marantz, Addiction by Distraction, Sporting News, May 27, 1996, at 10; see Robert Voy, M.D., Drugs, Sport, and Politics (Leisure Press 1991). 216 Ron Cook, Slam Dance, Pittsburgh Post-Gazette, June 9, 1996, at D3. 217 Tom Verducci, Totally Juiced, Sports Illustrated, June 3, 2002, at 34. 218 See Murray Chass, Caminiti Gets MVP; Williams Gets Traded, N.Y. Times, Nov. 14, 1996, at 17.
Both Kevin Towers, the Padres general manager at the time, and Larry Lucchino, then the Padres’ chief executive officer and president (who is now chief executive officer and president of the Boston Red Sox), said that they were surprised by the 2002 Sports Illustrated revelations of Caminiti’s use of steroids. The Padres manager at the time, Bruce Bochy, also claimed never to have suspected Caminiti of using steroids before the 2002 article (although in another article he was quoted saying that the revelations were “certainly not a big surprise”).219 During our investigation, however, a number of Caminiti’s former teammates recounted incidents describing his open use of steroids as early as 1995. It appears that Caminiti began researching the possibility of using steroids as early as 1993 or 1994, when he discussed the issue with one of his teammates on the Houston Astros.
One of Caminiti’s later Padres teammates, Wally Joyner, acknowledged that he discussed using steroids with Caminiti in 1998, when Joyner was feeling the effects of the game on his aging body. In an interview for this investigation, Joyner told us that he struggled with the decision whether to try steroids, but eventually he decided to use them. After taking the drugs three times, Joyner decided that he had made a mistake, discarded the rest of the pills, and never tried illegal performance enhancing substances again.220
F. Reporting on the Issue Continues, 1996-98
Days before the results were announced of voting for the 1996 most valuable
player awards, Bob Nightengale wrote another article on the topic, asserting that baseball needed
219 See Nick Canepa, Caminiti’s Admission to Sports Illustrated Taints MVP Season, San-Diego Union-Tribune, May 29, 2002, at D1 (“‘I’m not surprised – maybe a little bit, I guess, but it’s certainly not a big surprise,’ says Padres manager Bruce Bochy, who was on the bridge during the ’96 season when Caminiti carried his team to the NL West title. ‘Players are using steroids. With Cammy’s injuries that year, that rotator cuff injury, and his build no, it doesn’t shock me.’”).
220 See also Shaun Assael and Peter Keating, Who Knew? Part II: the Tipping Point, the Friend, ESPN the Magazine, Nov. 9, 2005.
to “pull its head out of the sand and start checking for steroids” and that the problem was “raging
out of control.” “Want to know why there were so many home runs this season?,” Nightengale
asked. “It’s not that the pitching is so bad, but that the players are so juiced.” Nightengale
observed that the “ones being penalized are the players who refuse to use steroids . . .”221
Peter Gammons also revisited the issue in a pre-season roundup before the 1997
season began, reporting that “physicians and GMs are increasingly concerned about steroid use
in baseball. As one team physician said last week, ‘The owners won’t do anything about it
because the cost of testing for steroids is very high, and they don’t want to face the costs or the
circumstances.’” Gammons criticized the Commissioner’s Office for “turn[ing] its back on such
issues.”222
Other articles appeared throughout the 1997 season.223 An April 1997 Sports
Illustrated article called the use of steroids and other performance enhancing substances,
including human growth hormone, the “dirty and universal secret of sports, amateur and pro, as
the millennium draws near.” It listed Major League Baseball among the sports where that use
221 Bob Nightengale, Baseball Is One Industry Badly in Need of a CEO, Sporting News, Mar. 24, 1997, at 22.
222 Peter Gammons, Birds Have Feathered Their Nest, Boston Globe, Mar. 2, 1997, at C8. The suggestion that owners avoided testing because of its high cost has been repeated since then by others who write about baseball. Despite extensive inquiry I found no evidence to support this assertion. All of the owners and other baseball officials I interviewed strongly denied it.
223
See, e.g., Bob Molinaro, Steroid Alert: Some Might Be Corking Their Biceps, Virginia Pilot and Ledger-Star, Mar. 7, 1997, at C1 (“The next scandal in Major League Baseball may relate to steroid use by players, a story that is starting to leak out.”); Bob Nightengale, Baseball Is One Industry Badly in Need of a CEO, Sporting News, Mar. 24, 1997, at 22 (“This is an industry so naïve that it still believes steroid use is not a problem when, in fact, it rages out of control.”); John Steigerwald, Lemieux’s Way Out Mario Just Got Tired of Waiting for NHL to Open Up Game, Pittsburgh Post-Gazette, Mar. 29, 1997, at C3 (“It has taken longer than it should have, but more and more the media are beginning to realize that Major League Baseball has another major problem beyond the familiar ones: Steroids.”).
was an issue.224 In a July 1997 article, Ken Caminiti reportedly told the Denver Post that:
“There’s a lot of monsters (muscular players) in baseball. You don’t want to tarnish the
reputation of the sport, but I don’t think the fans are naïve either.”225 In August, Jim Bowden,
then the general manager of the Cincinnati Reds, told the Rocky Mountain News that there
should be testing for steroids in baseball: “I think there’s a lot of people in baseball using
steroids, and that’s not fair to those who don’t use steroids.”226 And a November 1997 article in
the Los Angeles Times cited a “well connected source” for the assertion that “half the position
players in the major leagues use steroids . . . .”227
The public speculation continued into the 1998 season. In a first-person article in
the Birmingham News, Detroit Tigers pitcher Todd Jones wrote:
This week’s topic is a tough one to write. I enjoy the game so much it hurts me to defame it, but as a somewhat member of the media, I believe it is my job to tell you the stuff that is uncomfortable for me as a player. I’m talking today about the use and abuse of steroids and uppers. In my time in the big leagues, I’ve never seen anyone take steroids. But I have seen teammates come to spring training 40 pounds heavier, then tell me: ‘Not me, man, I used creatine.’ Yeah, right! I don’t know the exact number, but probably two or three players on every team take ‘roids. More position players take them than pitchers. Steroids I don’t think help arm speed.228
224 Michael Bamberger and Don Yeager, Over the Edge: Aware that Drug Testing Is a Sham, Athletes to Rely More than Ever on Banned Performance Enhancers, Sports Illustrated, Apr. 14, 1997, at 60.
225 Jerry Crasnick, Get a Load of This! Baseball Players Are Taking a Powder – Creatine, Denver Post, July 28, 1997, at D1.
226 Tracy Ringolsby with Jim Bowden and Alan Meersand, Drug Policy Skirts the Issue Should Baseball Test for Steroids?, Denver Rocky Mountain News, Aug. 28, 1997.
227 Randy Harvey, The Inside Track, L.A. Times, Nov. 4, 1997, at Sports 2.
228 Todd Jones, Using Drugs Same as Deal with Devil, Birmingham News, May 31, 1998, at Sports 11.
Similarly, in an article that appeared in early August, days before stories first appeared about Mark McGwire’s use of androstenedione, then-Milwaukee Brewers manager Phil Garner told a reporter of his first-hand knowledge of a player’s steroid use:
There was one kid, 27, who was cycling steroids, and I asked him, ‘Do you realize you could need an artificial heart when you’re 40 years old?’. . . He said, ‘I don’t care what happens at 40. All I want to do is be the biggest, baddest, guy I can be right now.’229
In his interview with our investigation, Garner acknowledged that he had known one major league player who used steroids while playing for him, but Garner refused to identify the player because it was more than five years prior to the interview and Garner did not believe it was necessary for this investigation to look that far back in time.
In the same August 1998 article, Mike Spinelli, a former Boston Red Sox minor league player, admitted his use of steroids and was quoted as having said: “I just thank God I was able to get out of this . . . before it killed me.” The article noted the lack of a drug-testing program in baseball and reported that “some say, anonymously, that about 30 percent of the hitters include [steroids] in their muscle-building program.”230
229 Alan Truex, The Creatine Craze / Steroids Mortgage Future for Muscles, Glory, Hous. Chron., Aug. 11, 1998, at A1.
230 Id.
V. Androstenedione and Baseball’s Broadening Awareness of the Use of Performance Enhancing Substances In late August 1998, Steve Wilstein, an Associated Press reporter who was following Mark McGwire’s progress toward a new single-season home run record, noticed a bottle in McGwire’s locker labeled “Androstenedione.” The ensuing AP news story led to renewed scrutiny of the use of “andro” and other substances by major league players. As previously mentioned, Commissioner Selig and others in baseball have said that this incident more than any other caused them to focus on the use of performance enhancing substances as a possible problem.231 Androstenedione is a steroid hormone produced in the body, where it is converted into testosterone.232 In 1998, “andro” was sold in the United States as a dietary supplement and was available without a prescription. The use of andro was not illegal in the United States, nor was it a prohibited substance under baseball’s drug policy at the time.233 There was debate,
however, about whether androstenedione should be considered an anabolic steroid. In 1998, it already was classified as such under Canadian drug laws,234 and the National Football League,
231 See Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use: Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. 277, 333 (2005) (statement of Allan H. Selig, Commissioner, Major League Baseball); id. at 324 (statement of Sandy Alderson, then-executive vice president for baseball operations, Major League Baseball).
232 Benjamin Z. Leder, et al., Oral Androstenedione Administration and Serum Testosterone Concentrations in Young Men, 283 JAMA 779, 779 (2000). As a result, androstenedione is referred to as a steroid “precursor.”
233 The Dietary Supplement Health and Education Act of 1994 expanded the definition of “dietary supplements,” eased restrictions on the sale of certain dietary supplements and placed limitations on the claims that could be made as to the potential benefits of using such substances. See