Friday, December 14, 2007
The Roger Clemens Report
The Mitchell Report came out yesterday, and it dominated both sports and general media. If you haven't seen it yet, you should check out Howard Wasserman's chat session at the Washington Post. He had a chance to respond to a lot of thoughtful and/or pointed questions, and I enjoyed his Socratic responses to a few of them, such as this exchange:
Beltsville, Md.: How do these revelations and the suspensions that may result affect recent trades (like Tejada and Lo Duca)? Is legal action likely because of the perception that the teams that traded them should have known that these players had these issues?
Howard Wasserman: But should the teams that traded for them have known or suspected as well? Did the traded-to teams assume some risk?
I have to admit, my own response to the Report is somewhat mixed. As an Orioles fan, I've long hated the Yankees, and there was some pleasure in seeing the Report name prominent Yankees -- particularly Roger Clemens. (For those enjoying the schadenfreude, you can listen to this for old time's sake.) It's almost akin to the Starr Report, in terms of the graphic details it provides about Clemens' alleged use of steriods. The Report will undoubtedly taint Clemens' career, and it may even cost him entrance to the Hall of Fame. As Thomas Boswell writes, "Now, Roger Clemens joins Barry Bonds in baseball's version of hell. It's a slow burn that lasts a lifetime, then, after death, lingers as long as the game is played and tongues can wag."
Sure, there are a lot of folks who may be happy to see Clemens's reputation in flames. But given the effect on all the named players, and Clemens in particular, the law professor in me winces at the process. First, you have George Mitchell, a director of the Boston Red Sox, as the author and face of the Report. I don't care how many times Mitchell and others insist that he's a good person who acts with complete impartiality. It's a blatant conflict of interest. For a corporate law prof, the conflict is so basic that it's hard to get past it. (I can only imagine what Leo Strine would say.)
Compounding the problem, the Report is exactly what someone with a Red Sox agenda would write. It names many prominent former and current Yankees (Clemens, Knobloch, Giambi, Sheffield, Stanton, Brown, Pettitte) but no prominent Red Sox. (Oh, I'm sorry -- he did name Eric Gagne.) It also named several prominent Orioles, a team that is in Boston's division. It may be, of course, that Mitchell simply followed the evidence, and that Red Sox players simply did not use illegal substances. But the conflict of interest leaves a haze of doubt and suspicion.
Finally, I have concerns with how the media is handling the Report. Basically, if you were named in the Report, you're guilty. The first things to come out were the "names" -- the players listed anywhere in the Report. But the evidence as to each player varies widely. For example, here's the evidence on Oriole player Brian Roberts (p. 158 of the Report):
Roberts and Larry Bigbie were both [Orioles] rookies in 2001. According to Bigbie, both he and Roberts lived in [former Oriole David] Segui's house in the Baltimore area during the latter part of that season. When Bigbie and Segui used steriods in the house, Roberts did not participate. According to Bigbie, however, in 2004 Roberts admitted to him that he had injected himself once or twice with steroids in 2003. Until this admission, Bigbie had never suspected Roberts of using steroids. In order to provide Roberts with information about these allegations and to give him an opportunity to respond, I asked him to meet with me; he declined.
This evidence seems pretty weak to me. But Roberts is now one of those "named" in the Report.
The Report may have no concrete legal consequences for players; Selig has noted that he will only discipline egregious cases, and the players' association could take such discipline to arbitration. But because of Mitchell's integrity, and because the Report is an official MLB publication, players named in the Report will have the black mark for the rest of their lives. It seems reckless for the MLB to put out this Report based on evidence culled by one conflicted investigator.
There's no denying that baseball had (and still has) a steroid and HGH problem. But this Report seems a very flawed way of attacking the problem. Somehow, I think the NBA's David Stern would have handled such a problem very differently.
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The standard for inclusion does seem pretty low, but consider this: if a player feels he has been wrongfully accused he has access to a defamation action to clear his name. Does anyone think we will see any defamation lawsuits?
It is also interesting to think about how different this whole thing would look if we were operating in the legal universe of the UK....
Posted by: Bill Altreuter | Dec 14, 2007 4:25:58 PM
The defamation question is broached today by Jack Balkin over at Balikinization (link at right below).
Posted by: Patrick S. O'Donnell | Dec 14, 2007 4:41:57 PM
erratum: Balkinization (although Balikinization sounds intriguing).
Posted by: Patrick S. O'Donnell | Dec 14, 2007 4:43:17 PM
A defamation claim to clear one's name is not a viable option. Pretty much any Major League baseball player is a public figure who would have to establish knowledge or recklessness as to the falsity of including him in the Report. That is a high standard that plaintiffs rarely clear, regardless of whether what has been said about them is false. The fact that the player does not bring the suit does not really tell us anything about whether he has been falsely accused of using steroids.
It definitely would be different in the U.K.--or just about anywhere else in the world, as most countries have rejected the NYT rule.
Posted by: Howard Wasserman | Dec 14, 2007 4:48:16 PM
"but no prominent Red Sox"
Actually, there's quite a few notable Sox players: Mo Vaughn (the best or second-best Sox hitter of the 1990s) and Jose Canseco, as well as current Sox Brendan Donnelly (and, as you note, recent Sox Eric Gagne).
And, of course, Roger Clemens, whose greatest seasons with with the Red Sox.
I think you're going well overboard when you write, "It's a blatant conflict of interest. For a corporate law prof, the conflict is so basic that it's hard to get past it." Mitchell, of course, was not the only person working on this investigation. And, as the results make clear, he didn't hesitate to name more than a few Sox players in his report.
The report is what it is: Given the available leads, the investigators identified certain players' alleged ties to PEDs. They sketched out the evidence they had; the public can draw its own conclusions from that information. Importantly, the report nowhere suggested that its results were exclusive or exhaustive. No doubt many players with similar PED connections avoided detection. But the fact that the report named (by my brief count) five current and former Sox makes clear to me that Mitchell's participation was hardly improper.
I must note that you simultaneously give the report too much and not enough credit: On the one hand, you say that all mentioned players will carry a "black mark." On the other, you note that the report's standards for inclusion were in fact quite low. I suggest that you're first conclusion is overblown, because all of us following the issue agree with your second conclusion. Baseball fans understand the report's limitations and won't rush to assign "black marks." Non-baseball fans won't care anyway.
Posted by: Adam | Dec 15, 2007 4:05:24 PM
Giving the list a closer look, and checking with some news articles, I find quite a few other former Sox mentioned in the report:
Along with a former Sox Cy Young (Clemens) and MVP (Vaughn), and Canseco/Gagne/Donnelly, I think we can safely say that the Sox didn't fare that much worse than the Yankees.
Posted by: Adam | Dec 15, 2007 4:11:10 PM
Well, the true test of a conflict of interest is if there are any CURRENT Red Sox players named. How can the naming of Mo Vaughn or Canseco hurt the Sox franchise? Get real.
Posted by: James | Dec 15, 2007 11:23:50 PM
The David Stern line is funny. Given Stern's history, and the fact that the league might have the itchiest trigger finger with regard to its own image of any of the major sports leagues (dress code, large fines for criticism of refs), Stern probably would ban anybody mentioned in the report for life.
Furthermore, the two issues with regard to steroid use are: influencing the kids; undermining the integrity of the game. As to the second, given the large base of evidence that PED's don't seem to work that well (especially HGH), if at all, I'm completely ready to dismiss it. Especially if the pool of players using is so large (as has been intimated) that it all just evens out anyway.
As to the first ... well, who knew that 80% of these guys had used anything until the report came out? Can we really worry about the health of kids who look up to Brian Roberts and Mo Vaughn when nobody had any idea they were doing anything wrong?
Posted by: Jason | Dec 16, 2007 12:36:16 AM
"the true test of a conflict of interest is if there are any CURRENT Red Sox players named"
By my count, there were only one current Yankees newly named in this report: Pettitte. There was one current Sox newly named (Donnelly, who while non-tendered is assuredly returning under some sort of reduced contract during his injury). To suggest that the Yankees were dramatically more hurt by the report's new revelations as to current players (and to attribute that to some sort of bias by Mitchell) is just silly.
Furthermore, I fail to see how the naming of, say, Clemens and Sheffield hurts the Yankees anymore than the naming of Clemens (Cy Young) and Vaughn (MVP) hurts the Sox.
Posted by: Adam | Dec 16, 2007 11:03:53 AM
Just a few responses.
First, the conflict of interest is there, and Mitchell's report does not help matters. Clemens may have been on the Sox at one point, but to claim he should be counted as a Red Sox player is "silly," in your words. Have you no familiarity with Red Sox fans? Plus, the report is all about his use of steroids while on the Blue Jays and Yankees. The discussion of Clemens in the report is a boon to Sox fans, and it taints the Yankees' championships with him.
Besides Mo Vaughn, who left the Sox before their championship runs, there are no Red Sox of note in the report. Jose Canseco? Jeremy Giambi? C'mon. The report is clearly more favorable to the Sox than the Yankees. As I said, this may be just be the truth. But Mitchell's conflict leaves it open to question.
Finally, I'm not sure how Stern would have handled this. He's very image conscious, so instead of banning all involved for life, he might have handled the report more discreetly. He might not have even had a report. More likely, he would have done what he did in the NBA, which is to impose stricter testing much earlier. But now MLB is in this disciplinary no-man's land. It will be interesting to see what Selig does from here. My prediction: not much.
Posted by: Matt Bodie | Dec 17, 2007 11:38:59 AM
Ever since the George Mitchell report came out, this has just been ridiculous! He did a poor job on the report overall. He was supposed to investigate steroids in baseball, and he just cut it short when he got Roger Clemens. Once he got him, he felt he had enough to make sure he had an impact on this issue and his part in it. ver poor job to do this and absolutely single someone out like this. This was a report to single out many players, but this is just one really, Rocket. I dont even remember 10 other names on the report!?! So when u feel that, you will realize this was a poor report! Thanks!
Posted by: Sachin Amin | Jan 28, 2008 2:33:30 PM