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Chapter[ III. The Governing Laws and Baseball Policies Regarding Possession or Use of Performance Enhancing Substances ]

Section[ D. The Joint Drug Program Under the Basic Agreement, 2002 to Present ]

D. The Joint Drug Program Under the Basic Agreement, 2002 to Present

By 2002, public scrutiny of baseball and the possibility that players were using

steroids and other performance enhancing substances had grown in intensity since the previous

negotiations with the Players Association had concluded.150 For the first time, negotiations for a

new collective bargaining agreement presented a real opportunity to achieve agreement on

mandatory random drug testing. Selig described the negotiations as a whole as “very tense and

tough.” Ultimately, a joint drug program that included the possibility of a mandatory random

149 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 3(C)

(2006).

150 See infra 60-85 (discussing press reports).

testing component was agreed to just before an August 2002 strike deadline, and that program

has further evolved in the succeeding years.

In March 2002, the Commissioner’s Office proposed a drug program modeled on

the one implemented the previous year in the minor leagues.151 Under the proposal, the use of

anabolic steroids and other substances, including androstenedione, would be prohibited; players

would be subject to up to three random drug tests each year; an initial failed test would be met

with treatment rather than a suspension; and repeat offenders would be subject to discipline.152

The Players Association, which historically had opposed mandatory random drug testing, did not

immediately respond.

In a June 2002 cover story, Sports Illustrated reported that Ken Caminiti had

admitted using anabolic steroids in 1996, the year he won the National League Most Valuable

Player award, and for a number of seasons thereafter.153 In the article, Caminiti also said that

steroid use was widespread in Major League Baseball, an assertion that was supported by others

quoted in the story.154 The Sports Illustrated article, together with allegations by former

American League outfielder (and former American League MVP) Jose Canseco about

widespread steroid use in baseball, spurred a June 2002 hearing of a U.S. Senate subcommittee.

151 See Draft Proposal of Major League Baseball’s Joint Drug Prevention and Treatment

Program, dated Mar. 6, 2002. The Players Association has noted that the proposal was not raised

until negotiations had been ongoing for a year.

152 See Draft Proposal of Major League Baseball’s Joint Drug Prevention and Treatment

Program, dated Mar. 6, 2002; 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) (testimony of

Robert D. Manfred, Jr., executive vice president, labor and human resources, Major League

Baseball).

153 See Tom Verducci, Totally Juiced, Sports Illustrated, June 3, 2002, at 34.

154 Id.

At the Senate hearing, Manfred described a meeting of several team physicians in

January 2001 in which the physicians expressed their concern to Commissioner Selig that

steroids were presenting a threat to players and to the integrity of the game. Manfred noted that

there had been a 16% increase in the number of players going on the disabled list over a three-

year period, and the length of their stays on the disabled list had grown longer. According to

Manfred, the consensus among the team physicians at the meeting was that use of steroids had

been a contributing factor.155

The physicians meeting that Manfred described was held in Milwaukee, and was

attended by, among others, Dr. William Bryan of the Houston Astros, Dr. John Cantwell of the

Atlanta Braves, Dr. John E. Conway of the Texas Rangers, and Dr. Michael Mellman of the

Los Angeles Dodgers. The meeting was convened by the Commissioner in anticipation of the

coming negotiations with the Players Association about a drug program and also to discuss

implementation of the minor league drug testing program that year. Dr. Mellman recalled that

all of the physicians who attended the meeting had suspicions about steroid use on their

respective teams and said “we all had stories” about steroid use by players and its impact on their

health. He remembered that the consensus among the team physicians was that steroid use was

“prevalent” in Major League Baseball at the time.

Dr. Mellman believed that the subject of steroid use in baseball had been under

discussion before the meeting but felt that Commissioner Selig expressed a genuine sense of

concern about the issue at the meeting. Selig recalled that he came away from the meeting being

“deeply troubled about steroids.”

155 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. 5-6 (2002) (testimony of Robert D.

Manfred, Jr., executive vice president, labor and human resources, Major League Baseball).

At the June 2002 hearing, several Senators pressed Don Fehr of the Players

Association to commit that drug testing for steroids would be included in baseball’s new

collective bargaining agreement.156 He responded that the Association would consider in good

faith the issues raised by the Commissioner’s March 2002 drug program proposal, but he added

that testing raised a number of difficult issues, including the invasion of players’ privacy rights.

In an article published two days later, Marvin Miller, the former executive director of the Players

Association, asserted that the Commissioner’s proposal was unworkable and amounted to “moral

grandstanding” intended to make it appear that the Players Association was the obstacle to drug

testing in baseball rather than to effect real reform.157

Discussions continued, however, and on August 30, 2002, the clubs and the

Players Association reached agreement on the terms of a new Basic Agreement for the period

2003-06. In addition to a number of new economic provisions, for the first time the collective

bargaining agreement included a form of mandatory random drug testing as part of a new joint

drug prevention and treatment program.158

Commissioner Selig has stated that the drug testing program was the last item on

which the parties reached agreement and that, while the compromise reached was not perfect, “at

least it was a start.”159 In his interview for this investigation, Selig expressed the view that the

2002 program was a necessary step toward achieving the joint drug program that is in effect in

156 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. 20-31 (2002).

157 See Allen Barra, Marvin Miller: Don’t Trust Baseball’s Drug-Testing Proposal,

salon.com, June 20, 2002.

158 See Major League Baseball’s Joint Drug Prevention and Treatment Program (2002) at

Attachment 18 to Basic Agreement.

159 See Barry M. Bloom, Selig: Drug Use Drops Below 1 Percent, mlb.com, Feb. 1,

2006.

Major League Baseball today. Don Fehr of the Players Association said that the 2002

negotiations were the first time the owners seriously pursued a proposal that called for random

testing of players.

The 2002 joint drug program prohibited the use, possession, distribution, or sale

of a number of drugs, including all steroids listed on Schedule III of the Controlled Substances

Act or any substances that later were added to that schedule or to Schedule II of the Act. (This

provision resulted in the automatic addition of androstenedione and other steroid precursors,

other than DHEA, to baseball’s prohibited list when Congress enacted the Anabolic Steroids

Control Act of 2004. It also meant that human growth hormone was not automatically included

because it is not a “controlled substance” under current federal law.) The program also provided

for the possible automatic addition of a number of other substances, which were listed in an

addendum, based on congressional action to regulate them generally.160

Drug testing beyond 2003 was not automatic under the program. Random testing

only would be implemented beginning in 2004 if 5% or more of the players tested during

anonymous “survey testing” in 2003 tested positive for steroids, with a refusal to submit to a test

counting as a positive result.161 If the 5% threshold was met, however, mandatory random

testing would begin with the 2004 season, carrying with it the possibility of discipline if a player

failed a second steroids test (after being placed on a treatment track following a first positive

test).162

160 Major League Baseball’s Joint Drug Prevention and Treatment Program, §§ 1(D)(2), 2

& Addendum C (2002).

161 Id., §§ 3(A), (F).

162 Id., §§ 3(A), 9(B).

In November 2003, Major League Baseball announced that between 5% and 7%

of players who participated in the survey testing in 2003 had tested positive for steroids;

mandatory random testing therefore was triggered to begin in the 2004 season.163 In 2004,

1,133 tests were conducted under the program, resulting in 12 undisputed positive results for

steroids.164 No players were suspended as a result of these positive tests because the program did

not provide for discipline for a first-time offender at that time.

During late 2003 and into 2004, the issue of steroids in baseball again attracted

attention after the offices of BALCO were raided by federal agents and news stories appeared

reporting that several baseball players had appeared before a federal grand jury that was

investigating BALCO.165 In his January 2004 state of the union address, President George W.

Bush denounced the use of steroids in elite sports and called on athletes, owners, and unions to

163 1,369 tests were conducted in 2003, and 96 of those tests were positive for steroids.

Although 13 of the 96 positives were disputed by the Players Association, the disputes were

never resolved because the positive rate was above the 5% threshold under either calculation.

See Letter from Robert D. Manfred, Jr. to Rep. Thomas Davis and Rep. Henry A. Waxman,

dated Mar. 14, 2005, at 3; Letter from Robert D. Manfred, Jr. to Rep. F. James Sensenbrenner,

Jr. and Rep. John Conyers, Jr., dated June 20, 2005, at Attachment 1.

In early 2004, federal law enforcement agents seized data concerning players who the

agents concluded had tested positive in 2003 survey testing. A later appellate court decision

stated that the names of “over one-hundred” players other than players who were implicated in

the BALCO investigation were identified by law enforcement agents. See United States v.

Comprehensive Drug Testing, Inc., 473 F.3d 915, 924 (9th Cir. 2006). The government’s

reported list and the data that it was based on remain under seal. As a result, we did not have

access to the list or the data.

164 See Letter from Robert D. Manfred, Jr. to Rep. Thomas Davis and Rep. Henry A.

Waxman, dated Mar. 14, 2005, at 2; see also Letter from Robert D. Manfred, Jr. to Rep. F. James

Sensenbrenner, Jr. and Rep. John Conyers, Jr., dated June 20, 2005, at Attachment 1. For an

additional 27 tests, the results either were disputed or raised the possibility that the players were

ingesting steroid precursors that were not banned at the time. See id.

165 See infra 112-20.

address the issue.166 Three weeks later, U.S. Attorney General John Ashcroft announced an

indictment against several individuals involved with BALCO.167 In February 2004,

Commissioner Selig issued a directive to all major league owners, front office executives, and

managers to refrain from commenting on “the BALCO proceedings specifically and

performance-enhancing drugs generally,” and asked that the same request be conveyed to active

major league players.168

In March 2004, the Senate subcommittee held another hearing on the subject of

steroids in baseball. Senator John McCain addressed Don Fehr of the Players Association about

perceived weaknesses in baseball’s steroids policy, telling him:

Your failure to commit to addressing this issue straight on and

immediately will motivate this committee to search for legislative

remedies. . . . I can tell you and your players that you represent the status

quo is not acceptable. And we will have to act in some way unless the

players at Major League Players Association act in affirmative and rapid

fashion. . . . [T]he integrity of the sport, and the American people,

demand a certain level of adherence [to] standards that, frankly, is not

being met at this time.169

Fehr responded: “We’re certainly willing to sit down and discuss any new and different ideas

and to look at matters in light of new information.” At the same hearing, Commissioner Selig

166 State of the Union Address, President George W. Bush, The White House Office of

Communications (Jan. 20, 2004).

167 Press Release, Department of Justice, Four Individuals Charged in Bay Area with

Money Laundering and Distribution of Illegal Steroids (Feb. 12, 2004).

168 See Memorandum from Commissioner Allan H. Selig to All Major League Owners,

Club Presidents, Chief Executive Officers, General Managers and Field Managers Re:

Performance-Enhancing Substances and BALCO, dated Feb. 26, 2004.

169 Effectiveness of Drug Testing in Preventing Steroid Use, Hearing Before the S. Comm.

on Commerce, Science and Transp., 108th Cong. 73 (2004).

said: “I realize that we have work to do. We need more frequent and year-round testing of

players. We need immediate penalties for those caught using illegal substances.”170

Less than a year later, Major League Baseball and the Players Association agreed

to revisions to the joint drug program, which they described in a January 2005 joint press

release.171 For the first time, human growth hormone was added as a prohibited substance under

the program (together with seventeen other compounds).172 In addition, the parties agreed to

more stringent penalties for positive steroids tests, including: a 10-day suspension for the first

positive test; a 30-day suspension for the second positive test; a 60-day suspension for the third

positive test; a one-year suspension for a fourth positive test; and additional, progressive

discipline for any further positive tests.173

Even as the 2005 revisions to the joint drug program were being finalized,

however, the February 2005 release of Jose Canseco’s memoir, Juiced, led to a March 17, 2005

hearing on the issue before the U.S. House of Representatives Committee on Government

Reform.174 One month later, Commissioner Selig sought the Players Association’s agreement to

170 Id. at 67, 74.

171 Press Release, Major League Baseball, MLB and Players Association Reach Tentative

Agreement on New Steroid Policy (Jan. 13, 2005).

172 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 2(B)

(2005).

173 See id. at § 9(B). The initial draft of the program suggested the possibility that a first-

time offender could be fined and not suspended, but in testimony and a follow-up letter, Rob

Manfred stated that this reading was not consistent with the parties’ agreement and that a 10-day

suspension would be automatic for any first-time positive test for steroids. See Letter from

Robert D. Manfred, Jr. to Rep. Joseph Barton, Rep. Cliff Stearns and Rep. Nathan Deal, dated

Mar. 24, 2005.

174 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. 2,

10-11 (2005); see also Letter from Robert D. Manfred, Jr. to Rep. Joseph Barton, Rep. Cliff

Stearns and Rep. Nathan Deal, dated Mar. 24, 2005.

increased penalties of a 50-game suspension for first-time offenders, a 100-game suspension for

second-time offenders, and a permanent ban for third-time offenders. The Commissioner also

recommended other changes, including adding amphetamines as banned substances.175 On

November 15, 2005, the Commissioner and the Players Association jointly announced revisions

to the program that implemented many of Selig’s proposals.176 The program in effect today

remains essentially unchanged from that revised program.177

The 2005 amendments added a new provision permitting either party to suspend

drug testing in the event of a “governmental investigation” that sought drug testing data as to

particular players (as opposed to data regarding testing as a whole).178 To date, neither party has

exercised its prerogative to suspend testing under this provision.

Before the provision was added to the program, however, testing was suspended

for some players for a period during 2004. In April 2004, federal agents executed search

warrants on two private firms involved in the 2003 survey testing, Comprehensive Drug Testing,

Inc. and Quest Diagnostics, Inc.; the warrants sought drug testing records and samples for ten

major league players connected with the BALCO investigation. In the course of those searches,

175 See Letter from Commissioner Allan H. (Bud) Selig to Donald M. Fehr, dated

Apr. 25, 2005.

176 See Press Release, Major League Baseball Office of the Commissioner and Major

League Players Association, MLB, MLBPA Announce New Drug Agreement, dated Nov. 15,

2005; Major League Baseball’s Joint Drug Prevention and Treatment Program (2006).

Amphetamines and other stimulants were added to the joint drug program, but positive tests for

these substances were subject to a different scheme of penalties, with no penalty for the first

failed test, a 25-game suspension for the second failed test, an 80-game suspension for the third

failed test, and permanent suspension for a fourth failed test. See Major League Baseball’s Joint

Drug Prevention and Treatment Program §§ 2(C), 3(A), 8(C) (2006).

177 See 2007 Basic Agreement Between the 30 Major League Clubs and the Major

League Baseball Players Association, Art. XXVII.

178 See Major League Baseball’s Joint Drug Prevention and Treatment Program, § 6(E)

(2006); Major League Baseball’s Joint Drug Prevention and Treatment Program, § 6(E) (2005).

the agents seized data from which they believed they could determine the identities of the major

league players who had tested positive during the anonymous survey testing.179 As discussed in

more detail below, a moratorium on testing was agreed to between the Commissioner’s Office

and the Players Association to provide the Players Association the opportunity to notify the

affected players that the information was in the hands of the government.180

The Players Association filed motions in federal court seeking the return of all of

the property seized and quashing certain other grand jury subpoenas issued after the initial search

warrants were executed. The district court granted those motions, but the U.S. Court of Appeals

for the Ninth Circuit reversed those orders, finding that the government’s seizure of the

information was appropriate and lawful. The appellate court remanded the case for further

proceedings in the district court as to certain of the seized information.181 As of the date of this

report, a motion by the Players Association for reconsideration of the decision is still pending.

179 See United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 920-24

(9th Cir. 2006).

180 See infra at 281-84.

181 See Comprehensive Drug Testing, Inc., 473 F.3d at 943.

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