Chapter[ III. The Governing Laws and Baseball Policies Regarding Possession or Use
of Performance Enhancing Substances ]
Section[ C. Informal Reasonable Cause Testing ]
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 .
47
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.
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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.
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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
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