Chapter[ XI. Recommendations ]
Section[ E. We Need to Look to the Future ]
E. We Need to Look to the Future
All of these recommendations are prospective. The onset of mandatory random
drug testing, the single most important step taken so far to combat the problem, was delayed for
years by the opposition of the Players Association. However, there is validity to the assertion by
the Players Association that, prior to 2002, the owners did not push hard for mandatory random
drug testing because they were much more concerned about the serious economic issues facing
baseball.
To prolong this debate will not resolve it; each side will dig in its heels even
further. But it could seriously and perhaps fatally detract from what I believe to be a critical
necessity: the need for everyone in baseball to work together to devise and implement the
strongest possible strategy to combat the illegal use of performance enhancing substances,
including the recommendations set forth in this report.
I was asked to investigate the use of performance enhancing substances by major
league players and to report what I found as fairly, as accurately, and as thoroughly as I could.
I have done so.
Only the Commissioner is vested with authority to take disciplinary action. Any
such determination is properly for the Commissioner to make, subject to the players’ right to a
hearing.
I urge the Commissioner to forego imposing discipline on players for past
violations of baseball’s rules on performance enhancing substances, including the players named
in this report, except in those cases where he determines that the conduct is so serious that
discipline is necessary to maintain the integrity of the game. I make this recommendation fully
aware that there are valid arguments both for and against it; but I believe that those in favor are
compelling.
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First, a principal goal of this investigation is to bring to a close this troubling
chapter in baseball’s history and to use the lessons learned from the past to prevent the future use
of performance enhancing substances. While that requires us to look back, as this report
necessarily does, all efforts should now be directed to the future. That is why the
recommendations I make are prospective. Spending more months, or even years, in contentious
disciplinary proceedings will keep everyone mired in the past.
Second, most of the alleged violations in this report are distant in time. For
current players, the allegations of possession or use are at least two, and as many as nine years
old. This covers a period when Major League Baseball made numerous changes in its drug
policies and program: it went from limited probable cause testing to mandatory random testing;
since 2002, the penalties under the program have been increased several times; human growth
hormone was not included as a prohibited substance under the joint drug program until 2005.
Under basic principles of labor and employment law, an employer must apply the policies in
place at the time of the conduct in question in determining what, if any, discipline is appropriate.
Until 2005, there was no penalty for a first positive drug test under the joint drug program,
although the Commissioner has always had the authority to impose discipline for “just cause” for
evidence obtained outside of the program.583
Third, and related, more than half of the players mentioned in this report are no
longer playing in Major League Baseball or its affiliated minor leagues and thus are beyond the
authority of the Commissioner to impose discipline.
583 It should be noted, however, that the rule that there would be no discipline for the first
positive test was part of the quid pro quo for the Players Association’s agreement to mandatory
random drug testing. Indeed, the Basic Agreement protects a “First Positive Test Result” from
discipline but does not similarly protect the first use of steroids from discipline. The primary
evidence of wrongdoing in this report was not obtained from baseball’s testing program but
rather from an independent investigation.
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Fourth, I have reported what I learned. But I acknowledge and even emphasize
the obvious: there is much about the illegal use of performance enhancing substances in baseball
that I did not learn. There were other suppliers and there have been other users, past and present.
Many of those named in this report were supplied by Kirk Radomski. Yet plainly he was not the
only supplier of illegal substances to major league players. Radomski himself said that some
players told him they had other sources. And the evidence demonstrates that a number of players
have obtained performance enhancing substances through so-called “rejuvenation centers” using
prescriptions of doubtful validity.
Fifth, the Commissioner promised, and I agreed, that the public should know what
I learned from this investigation. Perhaps the most important lesson I learned is that this is a
serious problem that cannot be solved by anything less than a well-conceived, well-executed, and
cooperative effort by everyone involved in baseball. From my experience in Northern Ireland
I learned that letting go of the past and looking to the future is a very hard but necessary step
toward dealing with an ongoing problem. That is what baseball now needs.
The Commissioner should give the players the chance to make a fresh start,
except where the conduct is so serious that he must act to protect the integrity of the game. This
would be a tangible and positive way for him to demonstrate to the players, to the clubs, to the
fans, and to the general public his desire for the cooperative effort that baseball needs to deal
effectively with this problem. It also would give him a clear and convincing basis for imposing
meaningful discipline for future violations.
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