Chapter[ III. The Governing Laws and Baseball Policies Regarding Possession or Use
of Performance Enhancing Substances ]
Section[ B. Baseball’s Drug Policies Before 2002 ]
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.
24
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.
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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
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