Chapter[ Appendices ]
Section[ Appendix B - Process of the Investigation ]
Appendix B - Process of the Investigation
On March 30, 2006, Commissioner Selig announced this independent
investigation into the illegal use of performance enhancing substances in Major League Baseball.
As discussed earlier in this report, he asked me “to attempt to determine, as a factual matter,
whether any Major League players associated with BALCO or otherwise used steroids or other
illegal performance enhancing substances at any point after” the 2002 Basic Agreement was
entered into. In his announcement, Commissioner Selig also recognized that “[i]t may be that
conduct before the effective date of the 2002 Basic Agreement will prove helpful in reaching the
necessary factual determinations,” and he therefore authorized me to follow the evidence
wherever it may lead.
The Commissioner agreed that I would have “all of the investigatory powers
available to the Commissioner” for the purposes of the investigation and that I would have “full
discretion with respect to the means and manner of carrying out this investigation.”
The Commissioner and the thirty major league clubs are subject to the provisions
of the Basic Agreement with the Players Association. This imposes certain limitations upon
actions that the Commissioner can take with respect to current players, and to the disclosure of
information arising out of the Major League Baseball Joint Drug Prevention and Treatment
Program. The Commissioner retained the authority to determine whether particular activities in
the course of this investigation might violate his obligations. I agreed to be bound by his
decisions, but I retained the right to state in my report if I disagreed with any such decisions.
I also agreed that the Commissioner’s Office would have the right to review my
report three business days in advance of its release to the public to make certain that I did not
improperly include in it any information that is required to be kept confidential. I retained,
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however, “unhindered discretion to include in… [the] report whatever information [I] deemed
appropriate” subject only to the Commissioner’s right to instruct me to not include information
that the Commissioner concluded he was under a legal duty to keep confidential. The
Commissioner’s Office reviewed this report before it was released. No material changes were
made to the report as a result of that review.
The Investigative Team
I retained DLA Piper US LLP to assist me in this investigation. DLA Piper, in
turn, retained FTI Consulting, Inc. to assist with the collection and search of electronic records
from the Commissioner’s Office and a number of the clubs. DLA Piper also retained three
expert consultants who provided advice in preparing this report and in developing its
conclusions: Richard V. Clark M.D., Ph.D.; Professor James J. Heckman, Ph.D.; and Professor
Richard H. McLaren, HBA, LL.B., LL.M., C.Arb.
Dr. Clark is a research director for a large pharmaceutical company. He is a
respected expert in endocrinology and andrology who has served in leadership positions with
several professional societies in those fields, including the American Society of Andrology. He
has authored a number of articles on studies in endocrinology and andrology and he has peer
reviewed other articles.
Mr. McLaren is a Professor of Law at the University of Western Ontario who also
serves as a sports arbitrator. He is a member of the independent Court of Arbitration for Sport.
He served as an on-site arbitrator for the Winter Olympic Games in 1998 and 2006, the Summer
Olympic Games in 2000 and 2004, and the Commonwealth Games in 2002, and will be an on-
site arbitrator at the 2008 Summer Olympic Games in Beijing.
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Dr. Heckman is the Henry Schultz Distinguished Service Professor in Economics
at the University of Chicago. He is a fellow of the Econometrics Society and a member of the
Academy of Arts and Sciences and of the National Academy of Sciences. Dr. Heckman’s work
has been widely published.
Dr. Heckman and his colleagues at Lexecon, Inc. were retained to conduct a study
of aggregate, non-identifiable data derived from spring training physical examinations to
evaluate trends in certain data, such as cholesterol levels, that can indicate the use of anabolic
steroids. Every player undergoes a spring training physical examination that includes a
comprehensive blood test. Dr. Heckman proposed constructing statistical models involving
these indicators and using “latent variable analysis” to estimate levels of anabolic steroid use in
Major League Baseball over time. In 2000, Dr. Heckman was the co-recipient of the Nobel
Memorial Prize in Economic Sciences for his work on latent variable analysis.
All medical data to be used in this study was to be “de-identified,” that is, stripped
of all information from which a player could be identified. Nevertheless, some of the clubs and
the Players Association raised concerns as to whether such a study would violate state and
federal medical privacy laws. Ultimately, those concerns could not be resolved to the
satisfaction of the Players Association, and the study was not conducted.
Documents Reviewed
This investigation was an independent inquiry on behalf of a private entity. As a
result, I had no subpoena power or any other method of compelling cooperation. I made a
number of requests for the production of documents from the Commissioner’s Office and each of
the thirty clubs. I received over 115,000 pages of documents from the Commissioner’s Office
and the thirty clubs. I also received over 20,000 electronic records retrieved from the computer
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systems of the Commissioner’s Office and some of the clubs. Each of the thirty clubs certified
that it had provided all responsive non-privileged documents that I requested.
I also requested the Players Association to provide documents based on
essentially identical requests. It declined to do so.
I also obtained documents from a variety of third parties and from public sources.
Interviews
We interviewed more than 700 witnesses in the United States, Canada, and the
Dominican Republic.
The Commissioner required the clubs to make their non-playing personnel
available for interviews, and the clubs complied. In all, we conducted interviews of over
550 individuals who are current or former club officials, managers or 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, senior vice president
for security and facility management Kevin Hallinan and executive vice president for labor
relations Robert D. Manfred, Jr., who was interviewed formally on three separate occasions.
During the investigation, we also had some meetings and telephone calls with Rob Manfred, Bob
DuPuy, and on a few occasions with Commissioner Selig that, while not formal interviews, often
included some discussion of the relevant issues.
Under the Basic Agreement, any request for an interview with a current player
must be made through his representative, the Players Association.584 Through the Players
584 See 2006 Basic Agreement, Art. XII(E).
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Association, I asked to interview more than 50 players who were at the time on the 40-man roster
of a major league club. Almost without exception, those players declined to meet with me.
In addition, I prepared a memorandum to all current players that was distributed
to them at my request by the Commissioner’s Office. In it, I invited any player to speak with me
who had relevant information or who otherwise wanted to do so. The Players Association also
prepared a memorandum that was distributed to players at the same time. Copies of both
memoranda are included at the end of this Appendix. No player responded to my memorandum.
We spoke with a number of former players, some of whom were forthcoming
about the prevalence of performance enhancing substances in Major League Baseball, and also
about their own use. We attempted to contact almost 500 former players and conducted
substantive interviews of over 70 of them.585
I asked to interview Donald Fehr, the executive director of the Players
Association, and Gene Orza, its chief operating officer. Mr. Fehr agreed to an interview;
Mr. Orza did not.
We also received significant cooperation from individuals who are no longer
employed in Major League Baseball, including executives, managers, coaches, athletic trainers,
doctors, and clubhouse personnel. We interviewed over 100 former club employees and other
individuals with relevant knowledge.
We interviewed or consulted with many others whose views and information were
very helpful, including: former Commissioners of Baseball Peter V. Ueberroth and Francis T.
(“Fay”) Vincent; numerous law enforcement and other officials; experts from the United States
585 Former players are not members of the bargaining unit, but even though I was not
required to do so I nevertheless agreed to provide the Players Association with advance notice of
my intent to request an interview with any former player for whom I had received allegations of
his illegal use of performance enhancing substances.
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Anti-Doping Agency, the World Anti-Doping Agency and the Australian Sports Anti-Doping
Authority; John Dowd, who conducted the Pete Rose investigation; Don Hooton, chairman of
The Taylor Hooton Foundation; Dr. Gary Green; Dr. Jay Hoffman; Frank Thomas of the Toronto
Blue Jays; and many others.
Many persons declined our requests for an interview, including many former
players who are alleged to have used banned substances; central figures in the BALCO
investigation; and, as noted earlier, over fifty current players from whom we sought interviews.
The persons we did interview were not under oath.
Although I was not able to obtain every relevant fact, I did receive enough
information to be able to describe the history and current status of the illegal use of performance
enhancing substances in Major League Baseball.
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To: ALL MAJOR LEAGUE BASEBALL PLAYERS
From: Senator George J. Mitchell
Date: September 6, 2007
Subject: Independent Investigation of Performance Enhancing Substance Use
I have been retained by the Commissioner of Baseball to conduct an independent
investigation into the alleged illegal use of performance enhancing substances in Major League
Baseball. I have pledged to conduct an investigation and to complete a report that is
independent, thorough, and fair. I believe it’s in your interest to help me achieve those
objectives.
The illegal use of performance enhancing substances is a serious violation of the
rules of Major League Baseball which directly affects the integrity of the game. The
principal victims are the majority of players who don’t use such substances.
That reality is too often overlooked in discussions about steroids. Much has been said
and written about the adverse effect on the integrity of the game, on the fans, and on the general
public. All are important. But those who are most harmed, those whose careers and livelihoods
are put at risk, are the players who don’t use such substances. They rely on their talent, skill, and
hard work, as should all players. And a younger generation of aspiring major league players is
affected as well, as young players may be led to believe that, even though Baseball currently has
a tough drug policy, they cannot succeed without violating that policy and the law.
No one has a stronger interest in dealing with this issue than major league players.
Accordingly, I am inviting all current Major League Baseball players who believe they may have
relevant information, or who for any reason wish to speak to me or to a senior member of my
team, to contact me.
If you wish to provide information on a confidential basis, I assure you that I will
fully honor your request for confidentiality in my report.
As has been announced publicly, Kirk Radomski has agreed to cooperate with my
investigation at the direction of the United States Attorneys Office for the Northern District of
California (“USAO”). Under our agreement with the USAO, neither I nor my staff are required
to supply any information to that Office. The USAO has not made any request that we supply
them with information nor do we anticipate receiving any such request. I previously served as a
United States Attorney and can confirm from direct personal experience that the USAO has at its
disposal a vast array of investigative tools – subpoena power, search warrants, the use of agents
from several federal agencies, to name just a few – which eliminate any need on their part for
my assistance.
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So any allegation that the USAO is using me or my investigation to do their work for
them, or to obtain information from me, is simply untrue.
The Players Association understandably has expressed concern about possible criminal
prosecutions of players for the illegal use of steroids. As you evaluate that concern please keep
in mind that through the 2006 season 221 professional baseball players (14 major leaguers and
207 minor leaguers) have been suspended after testing positive for steroids or other performance
enhancing substances, including stimulants, but not one of them was ever convicted in a criminal
prosecution. I asked the Players Association and the Commissioner’s office to provide me with
the name of any player who has been prosecuted and convicted for the illegal use or possession
of steroids. Both said that they are not aware of that ever happening. This is because
prosecuting authorities generally follow practices like those of the U.S. Department of Justice
which pursues prosecution of the manufacturers and distributors of such substances, not the
athletes who use them.
You or your representative may reach me at 212-XXX-XXXX or Charlie Scheeler of my
staff (XXX-XXX-XXXX or [email address]) and we will arrange a meeting at a time and place
convenient for you. Of course, if you choose to so volunteer, you will have the right to bring
representatives to the meeting, including your personal counsel and/or a representative of the
Major League Baseball Players Association. Under the Basic Agreement, the Players
Association also has the right to receive prior notice of any interview that we conduct with a
major league player.
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MAJOR LEAGUE BASEBALL
PLAYERS ASSOCIATION
MAJOR LEAGUE BASEBALL
MEMORANDUM
To: All Players
From: Donald Fehr & Michael Weiner
Date: 6 September 2007
Re: Mitchell Investigation
***************************************************
As you know, in early 2006, shortly after the players had agreed to the new Joint Drug
Agreement, Commissioner Selig hired former Senator George Mitchell and his law firm (DLA
Piper) to conduct an investigation into the use of steroids and other illegal performance-
enhancing drugs in baseball. We write today regarding a memo Senator Mitchell is sending to all
players, in which he encourages players to meet with his investigative team.
Any player who wishes to speak to Senator Mitchell in response to this request has the
right to do so. Any such player has the right to be represented by the MLBPA and his own
lawyer in arranging any such meeting and during the meeting itself. Given the serious legal
issues which may be involved here, both inside and outside of baseball, we strongly encourage
you to seek the advice of MLBPA counsel and a qualified private attorney before proceeding.
Commissioner Selig has not ruled out disciplining (suspending and/or fining) players as a
result of information gathered by the Mitchell investigation. Therefore, you should be aware that
any information provided could lead to discipline of you and/or others. (Any discipline imposed
could be challenged by grievance.) Remember also that there are a number of ongoing federal and
state criminal investigations in this area, and any information gathered by Senator Mitchell in
player interviews is not legally privileged. What this means is that while Senator Mitchell
pledges in his memo that he will honor any player request for confidentiality in his report, he
does not pledge, because he cannot pledge, that any information you provide will actually remain
confidential and not be disclosed without your consent. For example, Senator Mitchell cannot
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promise that information you disclose will not be given to a federal or state prosecutor, a
Congressional committee, or even turned over in a private lawsuit in response to a request or a
subpoena (a legally enforceable order).
Senator Mitchell points out that no player has yet been prosecuted for illegal use of
steroids and that prosecutors "generally follow practices" of pursuing manufacturers and
distributors, not users. Be aware, though, that a federal prosecutor recently stated in court that the
nationwide federal criminal investigation of steroids in sports is ongoing and clearly indicated
that the investigation could lead to prosecution of individual athletes for use.
Senator Mitchell mentions his agreement with the United States Attorney's office in
California (USAO), and states that his agreement with the USAO does not require him to provide
information to the prosecutor. (Senator Mitchell has refused to provide us with a copy of this
agreement, which we asked for so that we can understand the relationship of his investigation to
the US Attorney's Office.) But Senator Mitchell does not promise, because, again, he cannot
promise, that he will not disclose the information to the USAO (or another prosecutor,
Congressional committee, or other governmental entity) in response to a request or subpoena.
Finally, as you know, the owners and the players have bargained long and hard over the
subject of performance-enhancing drugs several times over the past five years. The positions
adopted by the union in those talks reflect a consensus among all players after numerous
meetings, discussions and conference calls. Any comments made to Senator Mitchell -Commissioner
Selig's lawyer --by an individual player regarding the operation of the Program
might well be used by the owners in future bargaining with the union.
It is in light of these considerations that we recommend that you first consult with
MLBPA counsel and your own private counsel before responding to Senator Mitchell.
If you have any questions, please call Michael or another MLBPA lawyer at XXX-XXXXXXX.
End Memorandum
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