January 09, 2007

The 9th Circuit Reminds Us How Ugly Steroids May Still Be

On December 27, 2006, the United States 9th Circuit Court ruled that the Federal Government may access the identities of those Major League Baseball players who tested positive for steroids in the spring of 2003 under a confidential MLB screening. This magic list was seized by Federal agents in an April 2004 raid as part of the ongoing BALCO case. The list has remained under lock-and-key as the government argues in court with the Major League Baseball Players’ Association over access. Federal agents want to question the players who tested positive to gather more info for their larger case. The MLBPA is appealing the decision of the 9th Circuit which will keep the identities concealed for the time being. However, as it almost always happens, the names will be released in time which will trigger a fresh round of Major League-caliber steroid dramatics.

Did Barry Bonds test positive in 2003? Did Garry Sheffield test positive? This will be more compelling than Mark McGwire’s self-incriminating testimony before the U.S. House Government Reform Committee in March 2005. It will be juicier than Rafael Palmeiro testing positive in August 2005 and then blaming teammate Miguel Tejeda. We thought the soap opera was thick when Palmeiro tested positive even after swearing before Congress that he was clean. Then he went and turned on a teammate. We are watching a huge messy car-crash in slow motion, exacerbated by MLB’s proven track record of missteps in this ongoing sharp edged steroid-crisis.

It was all pretty simple in the spring of 2003. Everyone outside of MLB was clamoring for steroid testing only the players did not want it and the owners did not want it. So the sides made a deal. The owners would contract with an independent testing agency who would test 100-players. All names would be kept secret. If more than 5% tested positive, then testing would begin across Baseball in 2004. Then, the players would be on notice, have one year to clean their systems, and the names of those who tested positive would be forever deleted. Only the Feds made it to the list of names before the names made it to the shredder.

The players are angry and they are scared. Players who agreed to be tested only under condition that such testing was confidential may soon be revealed to have been using. The players are angry because the condition by which they agreed may be violated. The players are scared because players who have tested positive have been exiled including Palmeiro, Jason Grimsley, and McGwire.

Baseball's steroids soap-opera has developed in stages, even with the Congressional hearings and the lament of innocence-lost that followed, and on which this column commented on December 12, 2006 in “George Mitchell Strikes-out on MLB Steroids“. Time passed and Palmeiro fell five months later and Grimsley in June 2006. Let us suppose that that these revelations, player stammerings, public shock, government murmurings, and media finger-waggings all happened at-once. Imagine we learned all the dirt in one clean press-release. This is what is going to happen with this list. We will be at work or at school or listening to the radio – even National Public Radio will cover this story, not just the all-sports AM stations – and we will all know who kissed who and when.

The current presidential administration did a lot of double-speak in their original claim of Iraqi weapons of mass destruction. We now know the administration to have been lying. But man, the Bush-Cheney White House can give lessons on staying on message and speaking with a unified voice. They are models of effective communication.

The players better be paying attention to the model of crisis management at 1600 Pennsylvania because when the news breaks, we are going to hear a multiplicity of player responses. We will have the players who denied but actually were using. We will have the players who we never asked but were in fact using (“Joey Joe-Joe Junior Shabadoo used steroids?! But he had a 6.32 ERA for the 1998 Devil Rays!”) Everyone will have a statement and opinion from players’ union attorneys, shocked former teammates, supportive current teammates, team spokespersons, the Commissioner’s office, even the Phillie Phanatic will have an opinion. (Well, maybe not the Commissioner’s office.) ESPN will not have enough microphones to record it all and Commissioner Selig will wish he had retired after the magic 1998 season when the going was great rather than his planned 2009.

Union head Donald Fehr is fighting the ruling of the 9th Circuit very hard. Legally, Fehr is petitioning the 9th Circuit to rehear the case or for the U.S. Supreme Court to accept it on appeal. The players who took this test did so only on condition that it was confidential and would be confidential until the test-results were destroyed. They almost were destroyed.

U.S. agents raided and took possession of the results on April 8, 2004 the day before they were scheduled to be destroyed. On the one hand, this is unfair to the players, legal issues of evidence and privacy aside. We are punishing the players for honoring an agreement.

On the other hand, these players were using a controlled substance and we assume – which is the interest of U.S. government prosecutors – obtaining it not by legal prescription channels. Who is the Commissioner’s office to guarantee the players legal privacy?

My grandfather, Albert Levin, of blessed memory, taught me never to gamble more than I could afford to lose. This advice has saved me plenty in Las Vegas on multiple occasions. We gamble with the law all the time in our society. We park our cars illegally and most of the time we do not receive the $15 or $35 ticket. As 19-year olds, we drink alcohol because such a low percentage of underage-drinkers face legal charges. We gamble with the law when we buy or sell tickets above the legal limit; in Pennsylvania, a ticket may only be resold for as much as 25% above the face-value. We can argue that any disregard for the law is unethical but pragmatically, we all live within gray areas of conduct on which society does not fall. We may yet fall as a nation for other reasons but these reasons will not be illegal parking, alcohol consumption by those under 21-years old, recreational drug use, ticket scalping, or steroid use.

Still, using steroids is illegal and as much as the players will want to remind us that it was not banned by Major League Baseball until the 2005 and that the test was to be confidential, the players broke the law. There is no going around this.

The players gambled with steroids for many years and did very well. A lot of players made a lot of money through their use. Now a number of players will pay the price because they will have the dumb-luck of being caught. The soap opera is still unfolding and there is a lot of ugliness still to be seen.


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