What Baseball's Comprehensive Steroids Policy Needs

By JCB on Friday, January 25, 2008

Many of the games I’ve attended at Wrigley Field and about two dozen other stadiums blend together. This is inevitable when you attend so many; when baseball consumes a significant part of your life. Certain ones stand out though, and it's one of these on my mind today: Friday the 21st of August, 1998.



It was a hot, hazy, humid afternoon. Typical for Chicago in August. (Miserable.) It was also the weekend I moved in to my non-airconditioned dorm as a freshman in college.



We parked off of Roscoe Street because in those days you could still find free parking off of Roscoe if you got there early enough. Kerry Wood pitched against Orel Hersheiser that afternoon. The Cubs came from behind in the bottom of the ninth. Sammy Sosa singled; Mark Grace walked; Henry Rodriguez singled; Jose Hernandez singled; and the Cubs won 6-5. We stayed until the end and drove away slowly, stuck in traffic, completely drained, but also completely content.



Earlier in the game, Sosa hit his 49th homerun.



Steroids? Not on our radar that day. Not really. Sosa’s and McGwire’s homerun chase? Very much on our radar, as was the Cubs role in the wild card race. How could we have known that soon a cloud would hang over this era, this season, even perhaps this game? That Sosa, while never proven, would become a strongly suspected steroid user? That weeks later, Bonds would see the acclaim for Sosa and McGwire, probably leading to his own steroid use in the following years, and probably now a trial for perjury?



* * *


There’s an analytic concept that has proven useful to me recently in thinking about steroids and baseball. It’s not perfect, but it’s helped me grapple with not only what baseball should do, going forward, but also how I think—and feel—about assessing blame and culpability looking back. The concept is the distinction between rules and standards, a distinction between types and forms of laws that I’ll explain in a moment.

At the least, it’s helped me avoid the temptation of just not thinking about it at all because it’s all just so fouled up. It is, all of it, very very fouled up. Every time there’s new news, like the Mitchell Report or the Tejada investigation or the Clemens case, part of me wants to put on my headphones and listen to the new Iron & Wine album because at least in the steel guitar pickup there’s undeniable purity of quality.

Still, we—those of us who love baseball—have to talk about it because the issue isn’t going anywhere any time soon. A problem in most of these conversations is that there are so many faces to the issue that it’s easy to get confused, and hard to consider them analytically. Ultimately, we all look back at a stain on our pastime and see the colors of guilt from just about everyone involved, including perhaps ourselves, the fans.

It’s a mess that will probably prove impossible to completely unpack. In part, that’s because there are some things that will remain secret; some skeletons will remain hidden. But I think it’s worth thinking about the mess anyway, even from my armchair, thinking about where we all might go from here to fix it, and in the course of doing so, how we got here in the first place. If you agree, read on.

* * *

Over Christmas, talking about the Bonds indictment and rumors of the Mitchell report, one person presented a familiar argument that rubbed me the wrong way: If it wasn’t against the rules at the time, how can we say it was wrong for the players to use?

It’s a tempting argument on its face, but flawed. It’s tempting because it’s constitutional. Article 1 section 9 prohibits ex post facto laws, meaning that you can’t declare doing something illegal and then punish someone for doing it before you declared it illegal. This is one of our cornerstone checks on tyranny, ensuring that our innocent behavior will not be treated as criminal.

The argument as applied to the use of steroids is flawed in two ways. (For me, in this article, I use “steroids” as a representative for the class meant to encompass all the performance enhancing drugs, hormones, amphetamines, chemicals and whatever else you might want to lump in.) The easy flaw: it’s not true because using was against the rules at the time. The hard flaw: it’s not true because it was still wrong even if, in some cases, it was not against the rules, because it was still against the rules in another sense.

Let’s dispense with the easy flaw. Without having the time to go into detailed research, from what I remember and what I’ve gathered in my research, many of the substances currently at issue were not allowed to be taken under MLB’s various drug policies, at least since 2003 when testing began. More importantly, even if the drug policy was absent, or silent on the point, the substances were mainly illegal to use because either they weren’t approved by the FDA yet, or required a prescription, or were only to be used in certain medical procedures and recoveries. For example, that’s one reason—along with the accompanying tax fraud—why the government went after Balco in the first place. Balco’s designer steroid, THG, was new and unapproved. After it was discovered, the FDA promptly banned it.

Baseball has never held itself above the law on this point: Even after former commissioner Peter Ueberroth got rid of baseball’s formal drug policy in the mid 80s, players like Dwight Gooden were still suspended for violating the commissioner’s drug policy by taking cocaine, an illegal narcotic. (See on this example Claire Smith’s brief article for the New York Times from 1994 titled Drug Use: Still a Hushed-Up Secret in Baseball .) Baseball can add extra banned substances by its own policy, but the base threshold is still what’s illegal. Even in a case like Mark McGwire and Androstenedione—banned at the time McGwire admitted taking it (1998) by the NFL and International Olympic Committee but not by baseball, and not illegal to possess (or sell over the counter) until it became a controlled substance under the Anabolic Steroid Control Act of 2004—if McGwire used anything else, leading to his refusal to testify a few years ago, it was probably illegal. The Commissioner’s office made it clear that baseball’s policy incorporates and includes the law in a memorandum to all the teams from 1997. “The basic drug policy for the game is simply stated: There is no place for illegal drug use in Baseball.”

On to the harder point then: the larger sense of the rules of the sport of baseball that using steroids violated. But first, I think it’s more helpful to begin by looking forward before we look back.

* * *

Here is where the analytic distinction between rules and standards comes in. In comparing forms of laws, loosely a rule is a law whose content is figured out ahead of time; a standard is a law whose content is decided afterward, on a case-by-case sort of basis. An easy example: prohibiting driving in excess of 55 miles per hour on expressways (rule), or prohibiting driving at an excessive speed on expressways (standard). Even though the latter does not tell someone—especially someone unfamiliar with driving—what will be legal, it’s not a violation of the Constitution’s ex post facto clause. It’s just a generally worded law, and we have plenty of those. We need plenty of those.

(The explanation here and throughout and this example comes from Harvard Law Professor Louis Kaplow’s article "Rules Versus Standards: An Economic Analysis" published a little over 15 years ago in the Duke Law Journal, outlining the importance of the distinction, and providing a surface economic-analysis roadmap of considerations to help one determine when a certain form is preferable over the other. Legal citation: 42 Duke L.J. 557.)

As applied to a sport’s drug policy, the rule part comes in listing the banned substances. About these, there can be no mistake: the presence of the chemical = guilt (leaving aside the question of whether it matters if a player used "knowingly"). This list can be exhaustive and comprehensive, like the International Olympic Committee’s or the World Anti-Doping Agency’s, which I studied a little bit last summer in my international sports law class. (WADA’s 2008 list is available on-line, and neatly organized.) The list, many argue, may even go too far, banning things entirely that may not deserve to be banned so strictly.

To a certain extent, Baseball’s current policy (a.k.a. Joint Drug Prevention and Treatment Program) does this as well, although less extensively. Note also that baseball’s policy specifically ties itself to government lists, such that if the government finds and declares a new steroid on the right list, it becomes banned in baseball. Baseball also bans taking steroids that are not on the lists but are obtained unlawfully, which I read to cover prescription-only steroids, etc.

The problem with employing this rule-based approach exclusively is that it creates a potential race between the scientists and the policy-makers. It leaves open a possible time-window, or gap, where technology is ahead of the policy declaring it illegal (or OK). Kaplow talks about this in his article (page 600), saying that in a pretty analogous situation—disposal of hazardous substances—rules may not be appropriate because we cannot foresee all potential hazards; “some hazards, and how best to address them, may become apparent when they arise.”

WADA, for example, tries to minimize this by staying on top of the situation as best it can and banning new things as fast as they appear. It also has a large research budget to expend. I’m guessing our government’s budget for this is pretty sizable as well, although the FDA is probably less concerned with athletes specifically as with the general public health at large.

The problem with the gap is not necessarily in finding new steroids, though, because those may be presumed illegal to take until approved by the FDA; although, this gap might exist in certain other such substances, depending on the facts (such as whether a substance is a derivative of a banned substance, or a new compound altogether). The gap problem in the long term is really in things like blood-doping, or gene therapy, or really, in the methods—technologies—no one’s dreamed of yet. (I mention these two because WADA takes the step of prohibiting methods of doping, like these two, basically saying that blood doping / artificially enhancing oxygen intake, and genetic manipulation, are against the rules however you may figure out how to do it.)

That’s where a system employing both rules and standards comes in, because a standard can give you a lot more flexibility in deciding that something was against the rules even though at the time the rule was made one could not even comprehend the situation’s existence. Copyright law has something of a mixture like this, for example, by giving copyright protection not to specific types of works, but to categories of works. It protects “literary works” instead of specifically books, newspapers, etc.; “motion pictures” not film reels. That’s why even though the statute was passed in 1976, it had no problem protecting DVDs when they arrived on the scene.

So what would a standard look like for a baseball drug policy? Think about what the policy is trying to achieve. In its simplest then, it could look something like this: A player may not (knowingly) use any substance, or employ any procedure or method, that will (A) put any player’s health unreasonably in danger; (B) give a player an unfair advantage over another player; (C) undermine the integrity of the sport of baseball because its use or employment is contrary to baseball’s values.

(The case for (C) is weaker than the other two, one may argue, because it invites giving too much power to an adjudicator to take the focus away from the facts at hand in any specific situation. Whether or not you like having (C) depends on how much you trust the adjudicator, I suppose. Also, I put “knowingly” in parentheses because that’s a debate for another day. WADA, for example, imposes strict liability, saying in its Article 2.1.1 that it’s the athlete’s duty to ensure that no prohibited substance enters his or her body, and saying explicitly that intent, fault, negligence, or knowing use is not necessary to find a violation. One rationale is that for a world-class athlete, even if the athlete doesn't know what's in something the athlete uses, it's at least negligent or even reckless for an athlete to let anything in his body without being certain it's approved. It’s certainly a simpler rule to enforce, anyway, even if it runs counter to many of our proper instincts about justice.)

Now, I’m not saying that this type of standard should be the only policy. It should exist alongside the rules, as a way of plugging the gap. The rules then also serve as a guideline to help inform someone guessing whether a new substance or procedure will be determined illegal. For that matter, having the threat of an open-ended policy encourages someone who’s unsure to request a preliminary ruling before using. (Assuming the baseball policy-makers allow for preliminary rulings, which I’d strongly suggest they should.) Combined with strict penalties, you begin to have a much more comprehensive policy this way.

Another point worth making is that chances are, because the specific rules are (and will be) fairly comprehensive, there will not be very many instances that have to be considered under this part of the policy, the standard. As Kaplow points out, this is when standards work best: if the frequency of adjudicating is low, why bother expending a lot of effort determining what the answer will be in a lot of situations that will never even come up? Granted, in the case of baseball, if we didn’t have a good list of what’s illegal from the government, and what’s further illegal for baseball, we would have a lot of cases to decide. The amount of money at stake guarantees this. But, given those lists we’ve already developed, what we’re concerned about is the gap, the inevitable race against technology, and for that I think we need a standard.

* * *

Next comes the more interesting part, at least for me, looking back and considering blame. How can all this business about having a standard to fill in the gap help us think about the ethical aspect of the last era? I think it’s easy: just pretend that the standard I suggest actually was in the policy. To the extent that you think this was the implied policy, then, you can see who followed it. (Call it what you like: an unwritten rule, an implied agreement, a necessary ingredient of sports as sports.)

Quite specifically: if you admit that throughout its history, past present and future, because of the nature and integrity of the sport or for any other reason, a baseball player should never do anything to gain an unfair advantage over his opponent, especially something that risks his or another player’s health, and that players knew or should have known this, then some people—I’d conclude—stand guilty in one sense regardless of what the policy said, or whether a policy even existed.

It doesn’t give you definite, objective answers. It may not even give you personal answers. I just happen to think it’s a useful way of asking the question.

Two points up front.

One, I don’t want to get stuck on “unfair.” Doctoring the baseball is unfair; hiring a trainer to coach you through the latest exercise techniques to improve your strength is probably not. Stealing signs is unfair; using the brand new cleats that slip less frequently is almost certainly not (at least as long as they’re available to the public). Between these boundaries there’s a lot of shades of gray, and I don’t have the wherewithal to try and parse them. Suffice it to say that I think secretly using steroids in the way many of these players did is unfair.

Second, it’s not just the players who stand guilty in this thought exercise, at least in my mind, because on this, a whole lot of people were complicit by various degrees of letting unfair advantages happen, or even encouraging them.

It’s on this second point that I wish to dwell for a minute. I have said several times in the past years, when asked, that I don’t know what to think about it, all of the blame for the steroids mess, because there’s about 8 different levels of complicity. 8’s not just an arbitrary number though. On the one line, there’s American culture at large, the federal government, MLB, the player’s union, the teams themselves, and the players, and on another line under culture at large, there’s the media as an institution, and fans. To varying degrees that we let unfair advantages happen, or didn’t try to stop them, or even wanted them to exist on some level for our own enjoyment or gain—to whatever extent we knew or should have known and didn’t at least question, we’re all complicit. Like I said: a mess.

But at least this concept of a standard alongside the rules gives us a lens through which to ask the question. It lets me have a reason to justify why I remain upset at a player who violated the spirit of baseball even if he did not violate a technical policy.

And there’s more. This looking back matters because as a sport—with a hall of fame, but more—baseball and all of its fans have to decide how posterity will view the players of this era. Obviously we can’t retroactively punish the players who took steroids directly with fines or suspensions or expulsions, at least in the legally gray area cases; this is the ex post facto concern. We don’t literally punish anyone for breaking “unwritten” laws. But I have no problem saying that if I were a hall of fame voter, I would not vote in someone who I believed to have an unfair advantage over his peers because of steroid use. And in a few extreme cases, I don’t mind the asterisk if it stands for “had an unfair advantage.”

I think for posterity there are three categories of players, then, in this light. Players, like Bonds, who definitely used, who definitely had an unfair advantage. (Remember, Bonds definitely used; the litigation involves whether he used “knowingly.”) Players, like utility players, about whom posterity will not care very much either way. And players about whom we will always wonder. On this last category, innocent until proven guilty remains my instinct. I’m also inclined to think that strong circumstantial evidence, even if not conclusive proof, matters in my calculations. But it gets more difficult when there’s only suspicion, not even strong circumstantial evidence. I guess it’s those situations that will always leave the era itself marked with an asterisk.

At the top level of culpability, our culture at large, this brings me to something I’ve been mulling over: is it proper to say that (especially) because of the unique value of baseball’s history and statistics, we should outlaw any unfair advantage a player has over players of another era? This is a tricky one, because it forces us to admit that some things, like advances in proper training technique and surgery for injury, definitely give players of our era an advantage over players of another, earlier era. We don’t want to say those things are outlawed because, in fact, they improve health. The answer comes if we say that any comparison is by the numbers, and if everyone in the era has these advantages, the numbers will even themselves out. The problem with this answer is that once we go this step, why not give everyone the same advantages with steroids?

Why not make steroids legal? Or, admitting the distinction, why not allow at least those substances and techniques that do not threaten health? (Assuming there are any.)

The only answer I can think of is that of cost. Advances in technology are expensive. As a result, players at the top salaries, or playing for the best-funded teams, will employ those resources to take advantage of the newest technology technically available to everyone. More, even if players in the major leagues can all afford something, players in the minors, or in college, cannot, except for a few, and if not banned, the problem of unfair advantage will just trickle down.

But that’s not an insurmountable challenge, this one, to ensure that a substance or technique is available to everyone (affordable) for it to be allowed. Ultimately though, and more importantly, I think it betrays the tension between our belief that in fact our society is improving with technology, but that sports are better in some sense without it. That the game was purer in simpler times.

But really, absent concerns for health, the problem with performance-enhancers is not the performance-enhancer per se, it’s the unfair advantage it gives one player over another. So, unless as a culture we want to slow our thirst for technology, we’d all do well to try, proactively, to encourage across-the-board improvement in performance enhancers so far as—a very big “if”—they meet the threshold health concerns. In doing so, though, at the same time we have to make sure certain players do not receive an unfair advantage.

In a culture like ours, where technology inevitably will improve and where in most cases we want it to, I think this is the only way to actually preserve the integrity of the sport. As much as a part of me wishes we could, we cannot put a fence around baseball with a sign saying “No technology allowed.” Instead, it’s a matter of making sure that as technology advances, the way sports leverage it remains positive: healthily, and fairly.

* * *

What happens if baseball doesn’t undertake a sort of policy like I suggest, incorporating a standard alongisde its rules?

Maybe nothing. Maybe no one cares if some players have an unfair advantage. Or, maybe the market will force the players to police themselves in ensuring no one has unfair advantages because otherwise fans will stop paying to watch. Maybe it will be a factor, anyway, to the point that baseball, and its players and teams, police themselves with a standard because they stand to make less money without one as a certain group of fans leave. It may turn out to matter, then, how many of us turn out to care.

I’d rather baseball were proactive, though, and not wait to find out.

As for why, I’m thinking about a book I read recently, In the Shadow of the Law, a novel by Kermit Roosevelt (2005). Among other things, with most characters easily separable in the end as good or evil, it recalls the evolution of a fictional law-firm itself from good to evil, a change that occurred in the era when hostile corporate takeovers became the catapult for big law firms to reach a new level of stature. Stature, and wealth, but at the expense of becoming evil, as Roosevelt depicts it for this firm. (Although, we may need to take any such depiction with a grain of salt. For the drama to work, in order for certain of his characters to be good, as the story unfolds the firm and its corporate client must be evil in a flat, simplistic way. Over-simplistic, compared to real firms, certainly.)

To do some over-simplifying myself, the transition of the firm coincided with the transition in leadership from father Archie (good) to son Peter (evil). In a flashback, the mind and voice of Archie uses the distinction between rules and standards to explain what—in his mind—went wrong with the big firms, and the law itself to a certain extent. As the systems governing the behavior of lawyers transitioned from standards to only rules, so the practice of law devolved. A couple of quotes from chapter 21:


[At first, good lawyers stayed away from helping corporations with hostile takeovers.]

“The recent mergers created nothing, as far as he could see, beyond fees for the bankers. And they were accomplished in a different manner—a sudden offer to buy up outstanding shares, a veiled threat that those who held on would be squeezed out at a lower price once the acquisition was complete, the devouring in an instant of a company built through years of toil and sacrifice. . . . Takeovers were something no self-respecting lawyer would touch. Reputation was hard to come by and easy to lose.”


[But the pressure for lawyers to participate in hostile takeovers was growing, especially as the law began to take shape in establishing rules regulating such takeovers. With this, implicitly, rules took shape regulating what lawyers could do for their part to ensure such takeovers were legal.]

“The unspoken understandings that had guided generations of lawyers were unraveling; the bar’s attempts at self-regulation were increasingly in effective. Then discipline was farmed out to the courts, and that, Archie thought, was the last straw. We handed our ethics to the courts, and the courts gave us back law. And who better than a lawyer to get around the law, to exploit the elasticity of a phrase, to dance along the knife edge of the permissible? That was what ethical canons had instructed them not to do, and ethics resisted casuistry—at least, the bar’s Protestant ethics did. But law did not; law would never constrain lawyers in the way professional norms had. No rule of professional conduct would tell you not to participate in a hostile takeover. There was only the understanding that such things just weren’t done.
And then they were done, even by the best firms, and the lawyers of Morgan Stevens began to wonder if they could afford to stand aside.”


[Looking back, Archie summarizes his regret for what transpired to his son.]

“There used to be standards, Peter. That’s all. There used to be standards, and now there are only rules. There used to be work that gentlemen wouldn’t do. If you don’t have that, how can you have gentlemen?”


The caveats: again, it’s an over-simplification to call hostile takeovers evil; though in many cases, especially in that era, undoubtedly they were at least sketchy. And, of course many lawyers must have and must still resist the temptation to dance around the technicalities of the law; many lawyers still follow, and many always will follow, the spirit of the law. Most lawyers, I'd even suggest. For that matter, at least as I've studied them, there are plenty of both rules and standards governing the behavior of lawyers. More, it’s not a perfect comparison between the ethics of lawyers, and the ethics of baseball players; undoubtedly we want to hold lawyers to the highest ethical criterion, and I’m not going to get into the criterion to which we want to hold ballplayers, even if it's also very high in some respects such as steroid use.

But the point stands: if you take away the standards, and the consequences of violating them, leaving only rules, you create the temptation for many to find ways to get around the rules, rather than follow the rules’ spirit.

In the case of baseball, I’m suggesting instead adding a standard alongside the rules comprising baseball’s drug policy with tangible consequences for violating it. A reason is that I fear that the impact of intangible consequences—loss of reputation—will erode as the monetary gains from employing tactics to gain an unfair advantage continue to grow. That’s in one sense what we see in reading Archie's account of what happened to lawyers in the era of hostile takeovers, as the notion of “unfair” evaporated, replaced by a set of increasingly complex rules and a race to find ways around them. Even if the account is not perfectly accurate, I suspect many would say there’s probably some truth in it nonetheless.

To me, it’s all the more important because I happen to think the standard has existed as an unwritten rule in baseball from the beginning. In our era, then, as our culture changes, it may now be time to write it down. You know, before it’s too late.

(Editor’s note: MLB.com has a fine drug policy timeline on its website. )
Posted Friday, January 25, 2008 by JCB
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