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Sunday, December 16, 2007

The Mitchell Report and Penalties

So now Commissioner Selig must decide what to do about the Mitchell Report's revelation that (surprise!) many MLB players used steriods and other "performance-enhancing substances."  The likely result, at least so far as I've been hearing on ESPN, is the suspension of some or perhaps all of the thirty-three current players named in the report.  The proper result is the banishment from baseball of every player who has done this sort of cheating.

Of course we don't always try for the correct result, and there are plenty of reasons why the Commissioner likely will not try to do the right thing here.  He may be concerned about overstepping his authority vis-a-vis the Players Association.  (But Commissioners have always broadly interpreted the "integrity of the game" clause, and there's a good argument that the integrity of the game has been undermined by the steroid use.)  He may not be sure the people named in the Mitchell Report actually did what they are suspected of doing.  A large amount of the allegations come from two trainers, who may not be credible in all their accusations (though McNamee seems to have hit the mark with Pettitte, leading most to conclude that his remarks about Clemens are accurate as well).  Selig may also be wary of penalizing too harshly the few players named in the report, if they are a small minority of the total number of guilty players, or alternatively of banning half the major league rosters from the last twenty years.  He may also be reluctant to establish a fixed penalty of baseball-death on steroid-users, for doing so would eliminate the incentive for suspected users to cooperate with investigations. 

All this may have led Selig to announce last week that he will act "on a case-by-case basis."  When he does, he should not lose sight of the fact that what the guilty deserve is complete banishment.  They have made us skeptical of a game that is important as a symbol and a pastime to millions of Americans.  They prevented minor leaguers and lesser stars from gaining roster spots and notoriety, and encouraged those trying to make it to the majors to abuse their bodies and the game as well.  They made fools of those of us who watched the sixty-second and seventy-third home runs, and all the other "highlights" achieved artificially.  And they've made dads like me try to explain to our seven-year-old sons what these players did, why it was wrong, and why the kids should never be so stupid or immoral.  Lifetime bans are pretty lenient.

Posted by Michael Dimino on December 16, 2007 at 10:48 PM in Current Affairs | Permalink

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Comments

Accepting your argument, the ban should extend to all the players named, not only the active players. Banning former players would have two effects: First, it keeps them from being in baseball in other capacities (coaches, players, executives, etc). Several of the named players are coaching). And second, it definitively prevents them from being selected into the Hall of Fame (players on the permanent ineligible list are precluded from selection or induction into the Hall). Not that most of them are likely to make it, but that is a substantial related punishment.

Posted by: Howard Wasserman | Dec 16, 2007 11:00:19 PM

(Typepad is being unspeakably silly and flagging my lengthy comment as spam. I'm therefore breaking this up into five chunks, one critique in each chunk, to see if I can deal with the problem that way.)

I think emotions are winning the day here, and that's frankly the last thing I expected at this blog. Five points:

First, some concept of the rule of law ought to be applicable here, right? Lifetime bans for drug use are nearly unprecedented. Fergie Jenkins and Steve Howe were both suspended for life, but both were reinstated within a short enough period of time that they were able to resume their playing careers. Given that the risk players took on when they ran the calculation about whether to use the drugs or not was a suspension that measures in days, or at worst, perhaps one season, it's utterly unfair to amplify the penalty this way.

Posted by: Jason Wojciechowski | Dec 17, 2007 8:10:10 AM

(I'm going to try to do it in three chunks instead of five.)

Second, let's not forget that this is hardly all the fault of the players! The owners blind eye, the union turned a blind eye, field management and executives turned a blind eye, as revenues and popularity kept rising, particularly after the disastrous labor troubles of '94-'95. What penalties ought we be doling out to the various people in charge who are guilty of, at the very least, negligence in this respect? Where's the outrage of their inaction?

Third, what is the "good argument" that PED use undermines the integrity of the game? In particular, what's the argument that PED use deserves the same punishment as gambling on the game and/or fixing? The players who used broke the law so that they might perform better (or perform at all) on the field. They did nothing to undermine the essential concept of "A vs. B" that defines sport. I'd even go so far as to argue that the arguable tanking we saw last year in the NBA was more integrity-undermining than PED use could ever be. (The NFL, I'll note, recognizes this: players get their four-game suspensions and then all is basically forgiven. Nobody cares that much.)

Posted by: Jason Wojciechowski | Dec 17, 2007 8:11:12 AM

(Part three.)

Fourth, what, precisely, is there to be skeptical about? Is it skepticism that the players aren't achieving these things inside the law? But that skepticism has been around ever since I can remember! The accusations about Jose Canseco started in the late '80's. Jim Bouton wrote a lot about "greenies" in Ball Four, published in 1970 (I think). People have been whispering about Roger Clemens for almost as long as they have about Barry Bonds. (Remember the outlandish conspiracy theories that Clemens had been caught with drugs, but Selig didn't want to publicly suspend him, so in 2006, they agreed that he'd not come back and pitch until June? Reminiscent of the rumors when Michael Jordan left to play baseball, actually.) In other words, how can "skepticism" justify taking away people's livelihoods *now*?

Fifth, under what code is this immoral? Yes, it's stupid, in terms of the risks for one's body, but I fail to see where morals come in.

Posted by: Jason Wojciechowski | Dec 17, 2007 8:12:01 AM

Thanks to Howard and Jason for their comments. A couple reactions: As to Howard, I agree that all guilty players (and trainers, etc.) should be banned, regardless whether they are currently active. I probably should have made that clearer in the original post. I would not necessarily extend the ban to all "named" players if I was not convinced of their guilt, but as to all those who are guilty, the punishment they deserve is banishment regardless of their current playing status.

As to Jason, I think the "integrity of the game" and "immorality" points go hand-in-hand. In all contests there is a line between playing within the acceptable limits and cheating. For me, cheating is immoral. The cheater is lying to the public about his talents and, as I said before, is stealing a job--a "livelihood"--from minor leaguers who are trying to play the game fairly. Punishment for different types of cheaters may be difficult to assess--corking bats, for example, is "cheating" but has historically not been treated as severely as, for example, gambling--but I it seems undeniable that this cheating has changed the results of games and probably championships, it has stripped certain records of their significance, and it has resulted in the players making more money than they would if they played the game fairly. I think the parallel to gambling is manifest. In both situations the threat to the integrity of the game is that the performance on the field is not what has been advertised. Perhaps steriod use is slightly less of a problem than throwing a game--abandoning even trying to win might be even worse than trying to win the wrong way--but certainly steroid use seems as bad as betting on one's own team to win (for which Pete Rose was, appropriately, banished from baseball).

And though I think the Steve Howe (etc.) "punishments" were terribly lenient, I see a major difference between recreational drug use for the purpose of self-gratification, and drug use for the purpose of altering on-the-field performance. Amphetamines are a difficult case, I recognize. On the one hand, they are taken to enable players to compete better than they would do otherwise. On the other hand, their use does not (I believe) cause the serious health problems that steroids do, and they have no effect on strength but make players less tired. Surely we would not suspend or ban players for caffeine use, and I can see a principled distinction in treatment between the cheating with amphetamines and cheating with steroids.

It is only as to the inflated salary point that I see any relevance to the owners' alleged complicity in the steroid "era." I will not shed many tears that the owners paid money to players they knew or suspected were cheating. I am moderately troubled, though, by the fact that the money ultimately came from the fans, who were not complicit in the fraud.

As a general matter, I don't think it's appropriate to blame anyone else for the players' actions. I don't, for example, excuse drug use among college students on the ground that the colleges tolerate or "turn a blind eye" toward such criminal activity. It may be the very definition of immorality to do the wrong thing because one suspects that he'll be able to get away with it. Of course I would have preferred other parties to have taken a more active role in preventing this problem from taking place. But that does not excuse the conduct of the parties who actually ingested the drugs.

Posted by: Mike Dimino | Dec 17, 2007 10:56:19 AM

In all seriousness, I don't think I could disagree more with Mike. Throughout the history of the game, there is a long tradition of athletes pushing (and breaking) the rules to try and gain a competitive advantage. From trying to maim people with your spikes on the ballfield to corking your bat to doctoring the ball to popping amphetamines as you prepare to bat, the game has tolerated such behavior, indeed has made it a centerpiece of the sport's mythology. But, now, suddenly, we are supposed to believe that taking a different set of drugs that decrease your recovery time from injuries and make it easier to develop muscle mass are so bad that the "integrity of the game" requires a lifetime ban?

Why are we reacting so differently to steroids and related drugs? All I have is hypotheses. First, there is some genuine concern about the health risks of the drugs for the players and the fans who emulate them. Second, there is a sense that the kind of cheating going on this generation is more clinical and less appealing than the kind that went on in eariler generations. True and fair enough.

But then there are the less savory reasons. There is the level of hostility the average fan carries for the players in the modern era due to their salaries; at some level, many fans are looking for reasons to vilify professional athletes. Then, there is the race angle; part of that is general (read Paul Butler at Blackprof on this) and part of it is purely white hostility to Barry Bonds. But more than anything, I think that the steroid panic is just a symptom of the wider drug panic that has pathologized our criminal justice policy and our poloitics for the last 20 years.

If you want to clarify the rules as to what is banned, great. If you want to do more testing, within reason sure. If you want to impose penalties of 30 or 60 or 90 days on guys who broke the laws or broke the rules when they were clear, makes sense to me. But lifetime bans, come on. That's like giving people 25 years for dealing a little crack. Oh wait, nevermind.

Posted by: Andrew Siegel | Dec 17, 2007 11:23:00 AM

At the time Pete Rose gambled, gambling was clearly prohibited by baseball and punishable by a lifetime ban. Had that not been the case, Rose's lifetime suspension would have been unfair. In contrast, there has never been a lifetime ban for first-time steroids offenders.

Posted by: AF | Dec 17, 2007 11:32:04 AM

So were the lifetime bans imposed on Shoeless Joe, Buck Weaver, et al., unfair because there was no explicit rule providing that punishment would be for a lifetime ban?

I think Andrew is onto something with this being another example of "drugs are bad" hysteria (a theme that pervades the Mitchell Report) and that we have not really come up with a good explanation why steroid use is worse than other cheating. And I have framed the same question slightly differently: Why is using steroids different than taking advantage of the type of medical treatments (Tommy John Surgery as the most prominent example) that enable players to come back from what used to be career-ending injuries.

I do not see the racial component to baseball's hot pursuit of steroids. Most of the prominent new names in the Mitchell Report are white(Clemens, Pettitte, Knoblauch, Gagne, LoDuca, Kevin Brown).

Posted by: Howard Wasserman | Dec 17, 2007 12:07:31 PM

Michael:

Without minimizing the wrong involved in using performance-enhancing substances, lifetime bans based on the Mitchell Report would be a cruel, unusual, and unethical punishment, grounded in a level of rigidity that fails to consider the underlying environment of MLB.

(1) First, because the commissioner of baseball exerts control over an entire North American baseball industry, a lifetime ban would substantially restrain trade in the labor for baseball players. As the respected arbitrator George Nicolau explained in reinstating Steve Howe into baseball despite his drug use, "the Commissioner is not an employer who has decided for himself that he will no longer retain an employee who is then free to go elsewhere in the same industry." The Commissioner rather rules employment prospects for an entire industry. Therefore, "[d]eterrence, however laudable an objective, should not be achieved at the expense of fairness."

(2) Second, a lifetime ban does not seem to meet any of the generally accepted reasons for punishment that exist in a developed society. The lifetime ban fails from a retributive justice perspective because it singles out a small segment of potential wrongdoers rather than the entire universe, and it makes no attempt to differentiate based on the degree of purported wrongdoing. A lifetime ban also fails based based on a deterrence rationale because from an ex ante perspective many of these players (especially those using HGH) had no reason to expect punishment and therefore no reason to have been deterred.

(3) Finally, as a basic matter of contract construction, the more narrowly worded clause in a contract trumps the more general. Given that baseball has long maintained collective bargaining provisions related to drug testing (however weak these provisions may have been), any attempt to circumvent these principles and instead punish players based on a more general "best interest" clause seems not only legally suspect, but morally questionable.

I do not have children yet; however, when I do, I am not concerned about how I will explain this era of baseball to them. I would be far more concerned, however, and if all of these players were banned for life as you suggest, that I would have to explain to my future children how we live in a society that singles out a small segment of wrongdoers (most of whom young in age) and made them pay an extreme price simply to deter others. What a cold and scary place that would be!

Posted by: Marc Edelman | Dec 17, 2007 12:55:04 PM

There are at least two aspects to the fairness of punishment in baseball: how serious the offense was, and how clear the rule against it was ex ante. The more serious the offense, the clearer the ex ante rule, the harsher the justified penalty.

Banning the Black Sox for life was arguably justified, even in the absence of an ex ante rule, because of the seriousness of the offense. But nobody has argued that using steroids is as serious an offense as intentionally throwing games. Professor Dimino has argued, however, that using steroids is as serious as betting on one's own team as Pete Rose did. However, what justified Pete Rose's suspension was not the inherent seriousness of the offense, but the ex ante clarity of the rule and applicable penalty. Since there is no such rule imposing a lifetime ban for first-time steroids offenders, the Pete Rose analogy is inapposite.

So in answer to the properly posed question: Yes, had the Black Sox bet on themselves to win, banning them for life in the absence of a rule against gambling would have been very unfair.

Posted by: AF | Dec 17, 2007 1:14:45 PM

I have a slightly different point, but it overlaps a bit with what Mr. Wojciechowski said. Basically, it's that baseball never had a hell of a lot of integrity to begin with, and that people are getting rather bent out of shape over something that shouldn't be a surprise to anyone.

Take this quote from the post, for example:

When he does, he should not lose sight of the fact that what the guilty deserve is complete banishment. They have made us skeptical of a game that is important as a symbol and a pastime to millions of Americans. They prevented minor leaguers and lesser stars from gaining roster spots and notoriety, and encouraged those trying to make it to the majors to abuse their bodies and the game as well. They made fools of those of us who watched the sixty-second and seventy-third home runs, and all the other "highlights" achieved artificially. And they've made dads like me try to explain to our seven-year-old sons what these players did, why it was wrong, and why the kids should never be so stupid or immoral. Lifetime bans are pretty lenient.

This is more than a little sanctimonious. Whatever Rockwellesque images one may associate with baseball, it's a business, and little more than pretension divides it from pro wrestling. Those who watched the 62nd and 73rd homeruns and didn't know that steroids had been a major part of baseball since the 80s were fools already and didn't need the help of anyone who's currently playing baseball. Bud Selig's responsibility is to further the business of baseball, and lifetime bans probably wouldn't do that. Yes, things have gotten to the point where the MLB's lax attitude toward steroids may be bad for business, but Selig will probably make a few adjustments, and life will go on.

Those players cheated, and the victims were the "clean" players, but the "clean" players likely learned in college or AAA that they were playing a generally dirty sport.

Perhaps baseball *should* expel steroid users, but that's like saying that the Mafia should expel murderers or that Congress should expel people who say things they don't actually believe.

Posted by: Humbug | Dec 17, 2007 1:43:54 PM

(Spam filter got me again. Let's try this in pieces.)

(1) I like that you've made the analogy to corking bats, because I think it's quite apt: neither PED's nor corking has been shown to actually enhance performance. As Howard (re: Tommy John surgery) and Andrew alluded to, the major gain seems to be getting back onto the field more quickly from injuries and surgeries. The poster-boy for increased muscle mass, Jose Canseco, saw his batting performance improve not a whit over his age-23 season, when he was thinner than the hulking mass he ended up.

In other words, the things that you say "seem[] undeniable" are actually empirical, and unproven. I'm 99% sure the Mitchell Report itself studiously avoids this point. In fact, from the executive summary: "Players who use human growth hormone apparently believe that it assists their ability to recover from injuries and fatigue during the long baseball season; this also is a major reason why players used steroids."

Posted by: Jason Wojciechowski | Dec 17, 2007 4:54:44 PM

(2) Given that, is there still the same argument that there's some kind of misleading of the public as to what is happening on the field? Hell, isn't the opposite happening? Andy Pettite tried HGH to see if it'd help him heal faster after an injury. Didn't season-ticket holders buy their tickets in the expectation of seeing Pettite?

That's probably a silly argument, but my main point is that it's not clear whether there's any value in these drugs other than getting back on the field / staying on the field.

Now, players below "juicers" on the depth charts still get less chance to play even if injury-recovery is the only value of the drugs, but that strikes me as a much more legitimate method of maintaining your position in the major leagues. This is again related to Howard's point about new surgical and rehabilitation innovations.

Posted by: Jason Wojciechowski | Dec 17, 2007 4:56:10 PM

(3) Steroid use is not slightly less of a problem than throwing a game. It is not that it might be worse than trying to win the wrong way. It is far, far worse. It undermines the entire reason the fans came to see the game. It undermines the reason for the other players and the officials to show up. It undermines the reasons why the executives in the front office do their jobs. It undermines the reasons why the coaches show up and throw batting practice and build strategies. This was always the worst part about the Black Sox apologists: they don't understand that what they did is the very worst thing anyone can ever do in sports, much less professional sports.

Put it this way: if you use Mystery Drug X to give you six more inches on your vertical leap in your pickup game at the YMCA, that's not very fair. But people can still come play the game, because Mystery Drug X doesn't determine the outcome of the game, it simply makes you a better player and thus makes your team more likely to win. If, on the other hand, you decide to actively throw the game (not just not play hard -- let's not get confused about that distinction), then why did everybody come to play the game? What's the point, if you've already predetermined what the outcome will be?

Posted by: Jason Wojciechowski | Dec 17, 2007 4:56:56 PM

"So were the lifetime bans imposed on Shoeless Joe, Buck Weaver, et al., unfair because there was no explicit rule providing that punishment would be for a lifetime ban?"

Perhaps, but that's not the right question.

There are at least two aspects to the fairness of punishment in baseball: how serious the offense was, and how clear the rule against it was. The more serious the offense, the clearer the ex ante rule, the harsher the justified penalty.

Banning the Black Sox for life was arguably justified, even in the absence of an ex ante rule, because of the seriousness of the offense. But nobody has argued that using steroids is as serious an offense as intentionally throwing games. Professor Dimino has argued, however, that using steroids is as serious as betting on one's own team as Pete Rose did. However, what justified Pete Rose's suspension was not the inherent seriousness of the offense, but the ex ante clarity of the rule and applicable penalty. Since there is no such rule imposing a lifetime ban for first-time steroids offenders, the Pete Rose analogy is inapposite.

So in answer to the properly posed question: Yes, had the Black Sox bet on themselves to win, banning them for life in the absence of a rule against gambling would have been very unfair.

Posted by: AF | Dec 17, 2007 6:02:33 PM

I'm not 100% sure there was an explicit, written rule that stated that Jackson, Weaver and the other Black Sox would be banned for life, but there was most definitely a precedent for it. The 1877 Louisville scandal involved throwing games at the end of the season, and several members of the team were banned for life. Star pitcher Jim Devlin was one of these players and he spent the rest of his life destitute, hanging around the National League offices begging for reinstatement. It never came.

There has never been a standing rule nor precedent for lifetime bans for drug use.

Posted by: Jon | Dec 18, 2007 9:59:17 AM

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