By Stacey B. Evans
(On April 16, 2008, the West Virginia University College of Law hosted a Forum entitled “False/Positives: The Current State of Performance Enhancing Drugs in Sports.” This forum explored many of the legal issues facing professional athletes across the NFL, MLB, and collegiate athletes and the growing epidemic of the illegal use of performance enhancing drugs. What follows is a distillation from that Forum into an editorial)
Ever since Major League Baseball Commissioner Bud Selig enlisted Senator George Mitchell to investigate steroid use in baseball, the use of performance-enhancing drugs in sports has become a hotly debated issue. The far-reaching effects of the Mitchell report have yet to be seen. Allegations have been raised that the steroid problem in the National Football League is far worse than the problem in baseball. Some MLB executives are maddeningly frustrated by the overwhelming attention given to steroid use in baseball, when many other sports have had problems with performance-enhancing drugs. This is the blessing and the curse of being “America’s Pastime.” Currently, MLB employs the strictest drug testing among the four major professional sports. A first offense carries a 50-game suspension all the way to a lifetime ban for a third drug offense.
Steroid use is illegal in the United States. Interestingly enough, professional athletes are not being prosecuted for using these substances. The legal system comes into the picture for players like Barry Bonds who faces federal perjury charges for lying about his use of performance enhancing drugs while under oath with a federal grand jury. If Barry Bonds was not a high profile, future Hall of Famer, would people be as interested in his case? Most likely, the answer is “no.” Former Olympic runner Marion Jones was not jailed for her illegal steroid use, but instead for committing check fraud and for perjury.
Arguably the biggest names to come out of the Mitchell Report were Roger Clemens and Andy Pettitte. Clemens testified before Congress that despite being named in the report, and despite the testimony of trainer Brian McNamee, he never used performance enhancing drugs. This testimony may very well find Clemens in the same boat as Barry Bonds; under investigation for perjury, and omitted from the Baseball Hall of Fame. Whereas Bonds and Clemens were surefire first ballot Hall of Famers, their futures are now far less certain.
Typically, the American public is a forgiving one. Players such as Jason Giambi and Andy Pettitte offered “mea culpas” and have largely been forgiven by the fans and the media for their errors in judgment in using steroids and human growth hormone. As two players who have been prone to injuries, getting back on the field is tantamount, and steroids and human growth hormone can both aid this process. Bonds and Clemens may have been able to save their reputation and Hall of Fame status if they publicly apologized for being human and for wanting to beat the time clock.
The impact of the Mitchell report is debatable. Players, front office executives and other team personnel were not under oath when interviewed by the Mitchell committee. In many instances, attorneys advised players against cooperating with the investigation. Being investigated on steroid use was not (and is still not) part of MLB’s Collective Bargaining Agreement, and therefore, players were under no obligation to be interviewed by Senator Mitchell. It seemed that in trying to coerce players into cooperating, all notions of due process went out the window. Additionally, the names in the report came from East Coast trainers and drug suppliers. Had Senator Mitchell been able to get Barry Bonds’ former trainer, Greg Anderson to cooperate, or other trainers throughout baseball, who knows how many hundreds of additional players would have been implicated. According to the new drug testing agreement put in place by MLB and the Players’ Union, players named in the report cannot be retroactively punished. So other than tightening an already strict drug policy, what did the Mitchell Report really offer to MLB or as a precedent for any other sport?
With the tremendous temptation of becoming a star athlete and the lure of million dollar contracts and endorsement deals, it really is not all that surprising that many athletes across many sports turn to a pill, a cream, or shot in order to gain a competitive advantage. If steroids were not illegal, would more people take them? Can the same argument be made that caffeine users have a certain edge or advantage in performing work or staying awake over non-caffeine users? If a drug were made available that would the enhance intelligence and performance of law students, how many students would rush out to buy this drug? It would seem that if there was a magic pill that would enable law student to stay awake for hours on end in order to study for finals or the bar exam, give tremendous focus, and the ability to perform better, there would be a run on this pill. If this same pill was made illegal, but there was no chance of getting caught, maybe 75 percent of those same students would still run out to get the pill. However, if law schools and State Bar Associations began to conduct random tests to detect the use of this magic pill, and punishment for getting caught would be expulsion from law school, or being denied admittance to the Bar, the number of students who would risk being caught in order to outperform their peers would decrease significantly. It is no different in the realm of professional sports where the stakes are high, but the payoffs higher.
It might be several years before the effects of the Mitchell Report or stricter drug testing policies are known. Since an MLB player must be retired for five years before they are eligible for the Hall of Fame, it will be at least 2013 before we know whether the steroids era prevents Roger Clemens and Barry Bonds from achieving the pinnacle of baseball success. Bonds’ perjury trial has not yet started, and it remains to be seen whether Clemens also finds himself on trial. In a year or two, we might see them sharing a jail cell with each other. Bonds and Clemens undoubtedly possessed phenomenal talents without the use of any performance enhancing drug. This begs the question of why these players would risk so much to lose so much. While Bonds, Clemens and others cheated to get ahead and cheated to win, the ones they may have cheated most of all is themselves.
*Evans is the President of the West Virginia University College of Law Sports & Entertainment Society