Chapter[ II. MLB & Other Sports Must Combat Illegal Use of Performance Enhancing
Substances ]
Section[ B. Threat to the Integrity of Baseball Posed by the Illegal Use of Performance Enhancing Substances ]
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).
11
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).
12
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).
13
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).
14
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.
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