Chapter[ Summary & Recommendations ]
Section[ H. Major League Baseball’s Joint Drug Prevention & Treatment Program ]
H. Major League Baseball’s Joint Drug Prevention and Treatment Program
The joint drug prevention and treatment program was added to the Basic
Agreement in 2002. Under that program, testing has been conducted of players in Major League
Baseball since 2003, first in the form of anonymous survey testing in 2003, and thereafter in
mandatory random testing that now carries with it severe penalties for violations. The program
has been amended formally twice since 2002 as the result of negotiations between the
Commissioner and the Players Association, and other minor modifications also have been made.
As a result, penalties have been increased, the list of prohibited substances has been lengthened,
and some improvements in procedures have been made.
Adoption of the current program was a positive first step. The information
obtained in this investigation suggests that the use of detectable steroids by players in Major
League Baseball has declined but the use of human growth hormone has increased. In some
respects, however, the program still falls short of current best practices in drug testing for the use
of performance enhancing substances.
The drug testing programs in all sports, including the Olympics, have evolved
over time through a process of trial and error, as the programs were modified to address
problems and concerns. In that respect, baseball's program has been like all the others. The
challenge now is to take the program to a new and higher level and to then continue the process
of improvement to deal with the problems and concerns which cannot be foreseen but which
inevitably will arise. Certain characteristics are now widely recognized as essential to an
effective testing program. These are: independence of the program administrator; transparency
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and accountability; effective, year-round, unannounced testing; adherence to best practices as
they develop; due process for athletes; adequate funding; and a robust education program.
Programs based on these principles can more readily adapt to changing
circumstances in the ongoing contest between athletes who compete clean and those who do not,
although even the strongest program by itself cannot entirely eradicate the use of banned
substances. The Major League Baseball joint drug program can be strengthened in several of
these areas. Most notably, the program is not administered by a truly independent authority.
Although in their latest revisions to the program the parties established an “independent program
administrator,” the Commissioner’s Office and the Players Association continue to retain
authority over the program administrator and other important issues.
The current program also lacks transparency, an essential attribute to demonstrate
the integrity and effectiveness of the program to outside observers. Transparency is most often
obtained by issuing periodic reports on a program’s operations, including reporting aggregate
data on testing, and by regular audits, neither of which is now done under the joint program.
Concerns have been raised about the collection procedures used, including
allegations that some players received advance notice of testing. In Game of Shadows, and in an
earlier San Francisco Chronicle article, the authors described a surreptitious recording of a
conversation that reportedly occurred in spring 2003 between Greg Anderson and an unidentified
person. In that conversation, Anderson reportedly claimed that he would receive notice of
upcoming tests between one and two weeks in advance. He also reportedly claimed that testing
was “going to be either at the end of May or beginning of June . . .”
I could not obtain a copy of the recording or otherwise confirm that Anderson
made these statements, or that he made them before late May 2003 as reported by the authors.
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However, records that we obtained from the contractor who administered his tests show that
Bonds was tested on May 28 and June 4, 2003. Therefore, if the report of this conversation is
accurate Anderson correctly predicted the dates of testing, at least for his client Barry Bonds.
We interviewed the relevant personnel from Comprehensive Drug Testing, Inc.,
the company responsible for sample collection under the Major League Baseball joint drug
program. Those witnesses denied that they provided advance notice of test dates to Bonds or
anyone else. CDT witnesses also told us that advance notice of testing dates was never provided
to Quest Diagnostics, Inc., the laboratory that processed test samples, so Quest personnel could
not have been the source of advance notice to anyone else. A Quest spokesman was reported to
have said the same thing in the original news article about the recording.
I also investigated other allegations that some players received advance notice of
tests in 2004. In April 2004 federal agents executed search warrants on the 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, 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.
Shortly after these events, the Players Association initiated discussions with the
Commissioner’s Office regarding a possible suspension of drug testing while the federal
investigation proceeded. Manfred said the parties were concerned at the time that test results that
they believed until then raised only employment issues had now become an issue in a pending
criminal investigation. Ultimately, the Commissioner’s Office and the Players Association
agreed to a moratorium on 2004 drug testing. While the exact date and length of this moratorium
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is uncertain, and the relevant 2004 testing records have been destroyed, Manfred stated that the
moratorium commenced very early in the season, prior to the testing of any significant number of
players. Manfred stated that the Players Association was not authorized to advise its members of
the existence of the moratorium.
According to Manfred, the moratorium lasted for a short period. For most
players, drug tests then resumed. With respect to the players who the federal agents believed had
tested positive during 2003 survey testing, however, the Commissioner’s Office and the Players
Association agreed that: (1) the Players Association would be permitted to advise those players
of this fact, since that information was now in the hands of the government; (2) the testing
moratorium would continue with respect to those players until the Players Association had an
opportunity to notify them; and (3) the Players Association would not advise any of the players
of the limited moratorium.
Sometime between mid-August and early September 2004, Manfred contacted
Orza because the Players Association had not yet notified the players involved. The 2004 season
was drawing to a close without those players having been tested because they remained under the
moratorium. Manfred said that he pressed Orza to notify the players as soon as possible so that
they could be tested. All of the players were notified by early September 2004.
A former major league player stated that in 2003 he was tested as part of the
survey testing program. He said that in September 2004, Gene Orza of the Players Association
told him that he had tested positive in 2003 and that he would be tested in the next two weeks.
Independently, Kirk Radomski told us that this former player had earlier told him the same thing
about Orza’s statements shortly after the conversation between Orza and the former player
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occurred. In addition, the former player Larry Bigbie told us that the same former player had
told him the same thing about his conversation with Orza.
Furthermore, according to Bigbie, in 2004 a current player admitted to Bigbie that
he also had been told by a representative of the Players Association that he had tested positive
for steroids in 2003.
I am not permitted to identify either the former player with whom we spoke or the
current player who made the admission to Bigbie because the Commissioner’s Office and the
Players Association have concluded that for me to do so would violate the confidentiality
provisions of the joint program.
According to the redacted affidavit filed in support of a search warrant sought for
Jason Grimsley’s residence, Grimsley told federal agents that he, too, was informed that he had
tested positive for anabolic steroids in 2003. The identity of the person who so advised Grimsley
is redacted in the public version of the affidavit, and I did not have access to the unredacted
version.12
Other players may have received similar notice, since (1) the program required
that each player be tested once during the 2004 season, (2) the Commissioner’s Office and the
Players Association agreed that, since the government had the names of the players who they
believed had tested positive in 2003, those players should be notified and should not be tested in
2004 until that notification had taken place, and (3) that notification did not take place until late
August or early September 2004, just weeks before the season ended.
Orza declined my request for an interview.
12 Affidavit of IRS Special Agent Jeff Novitzky in Support of Search Warrant, sworn to
on May 31, 2006, ¶ 16.
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Officials of the Commissioner’s Office emphasized that the circumstances
described above represented an emergency response to an unforeseen event: a government
investigation that obtained the names of players who had tested positive in the 2003 survey
testing, information that the parties had agreed in advance would be anonymous. Consequently,
they assert that it does not describe the normal operation of the program.
The Players Association objected to my making any reference to this matter in
this report. I offered to include a statement by the Association and they provided me with the
following:
Because of certain actions by the Government in 2004 (which led to
litigation, much of which has been under seal), the parties were forced to
confront a serious threat to the confidentiality and integrity of our
program. To combat that threat, and indeed to save the credibility of our
program, the parties undertook certain measures in that year only. These
were not unilateral actions undertaken by the MLBPA, but actions
discussed and agreed upon between the MLBPA and the Commissioner’s
Office. Each party was fully aware and in agreement with the steps the
other was taking.
The MLBPA believes that, by publishing in this Report anything related to
these subjects, Senator Mitchell and the Commissioner’s Office are
breaching promises of confidentiality made to the MLBPA and to its
members.
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