Chapter[ Summary & Recommendations ]
Section[ I. Recommendations ]
I. Recommendations
To prevent the illegal use of performance enhancing substances in Major League
Baseball, I make a series of recommendations. Some can be implemented by the Commissioner
unilaterally; some are subject to collective bargaining and therefore will require the agreement of
the Players Association.
The recommendations below focus on three principal areas: investigations based
upon non-testing evidence; player education; and further improvements in the testing program.
These recommendations are designed to work in combination with one another to more
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effectively combat performance enhancing substance violations. It bears emphasis that no
testing program, standing alone, is enough. Certain illegal substances are difficult or virtually
impossible to detect, and law enforcement investigations of Kirk Radomski and compounding
pharmacies and anti-aging clinics show that, even in this era of testing, players can continue to
use performance enhancing substances while avoiding detection. Indeed, one leading expert has
argued that “testing only scratches the surface.” The ability to investigate vigorously allegations
of performance enhancing substance violations is an essential part of any meaningful drug
prevention program.
First, the Commissioner should create a Department of Investigations, led by a
senior executive who reports directly to the president of Major League Baseball, to respond
promptly and aggressively to allegations of the illegal use or possession of performance
enhancing substances. The success of that official will depend in part upon his interaction with
law enforcement officials, who in the course of their own investigations obtain evidence of
athletes’ possession or use of illegal substances that, under appropriate circumstances, can be
shared with sports leagues, as recent events in both Major League Baseball and other sports have
demonstrated.
The Commissioner also should strengthen existing efforts to keep illegal
substances out of major league clubhouses. Given the evidence that many players have had
steroids and human growth hormone shipped to them at major league ballparks, packages
delivered to players through their clubs should be logged and tracked. Clubs also should be
required to adopt policies to ensure that allegations of a player’s possession or use of
performance enhancing substances are reported promptly to the Department of Investigations.
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Second, improved educational programs about the dangers of substance use are
critical to any effort to deter performance enhancing substance use. Over the last several years,
the Commissioner’s Office and the Players Association have made an increased effort to provide
players and some club personnel with educational materials on performance enhancing
substances. Some of these efforts have been effective, but we heard criticism from both former
players and club personnel about the anti-steroids education programs.
Most of the educational programs we reviewed address the side effects of
performance enhancing substance use and the deleterious health effects of long-term use.
According to Dr. Jay Hoffman, a former professional athlete and expert in the field, discussions
of health risks alone, although important, generally will not deter a player from using these
substances because players who consider using performance enhancing substances do not view
them as dangerous if used properly. To counter this skepticism, Dr. Hoffman proposes that
education about the dangers of performance enhancing substances be combined with education
on how to achieve the same results through proper training, nutrition, and supplements that are
legal and safe.
Another health risk associated with performance enhancing substances is the
unknown nature and origin of the substances. Players need to be aware of the risks associated
with buying black market drugs.
The public outcry over the use of performance enhancing substances in
professional sports has provided the substance dealer with an opportunity to exploit his
relationship with a player. Those players who buy and use illegal performance enhancing
substances place their livelihoods and reputations in the hands of drug dealers. Players also
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should be reminded of their responsibilities as role models to young athletes, who in emulating
major league players’ illegal substance use will place themselves at risk.
Third, although it is clear that even the best drug testing program is, by itself, not
sufficient, drug testing remains an important element of a comprehensive approach to combatting
the illegal use of performance enhancing substances. In Major League Baseball, however, the
Commissioner does not have the authority to act unilaterally on drug testing; the agreement of
the Players Association is required. The current joint drug program is part of the Basic
Agreement that was agreed to in 2006 and will remain in effect until 2011. Any changes to the
program therefore must be negotiated with and agreed to by the Players Association. Neither
party is obligated to agree to reopen the Basic Agreement to address the program, even though
that is what happened in 2005. There is no way for me to know whether that will happen again.
In recognition of the uncertainties associated with both the timing of further
action on drug testing and the position of the parties when that action does take place, I set forth
in this report the principles that presently characterize a state-of-the-art drug testing program.
Every program should be updated regularly to keep pace with constantly changing challenges
and best practices. It will be for the clubs and the Players Association to decide when to
undertake a fresh review of these issues. When they do, I urge them to incorporate into the
Major League Baseball joint drug program the principles described in this report.
The program should be administered by a truly independent authority that holds
exclusive authority over its structure and administration. This could be in the form of an
independent expert who cannot be removed except for good cause, an independent non-profit
corporation, or another structure devised and agreed to by the Players Association and the major
league clubs.
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The program should be transparent to the public, by allowing for periodic audits
of its operations and providing regular reports of aggregate data on testing and test results. The
program should include adequate year-round, unannounced testing and employ best practices as
they develop. How the program achieves those objectives is best left to a truly independent
administrator to decide. To ensure that he can accomplish these objectives, the program should
receive sufficient funding. The program should continue to respect the legitimate privacy and
due process rights of the players.
***
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.
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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.
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.
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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.13
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.
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.
13 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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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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