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Take Me Out to the Gall Game

By Sally Jenkins
Saturday, March 12, 2005; Page D01

Congress is the clumsy, grandstanding mechanism We the People have for asking damn good questions of evasive subjects. Why shouldn't seven active and former major leaguers, and a few officials, come to the nation's capital and speak plainly into a microphone before Congress on the subject of steroids?

This would be instructive, and it's a perfectly reasonable request. All Congress is really asking is that Major League Baseball explain itself to a much-abused public. MLB has responded with arrogance, refusing to return phone calls, to furnish documents and to obey subpoenas. It's threatened contempt of Congress, and counseled its players to do the same. This is instructive in and of itself. Congress, in this case, represents a deeply annoyed public, and therefore MLB's contempt is really for you and me.

Commissioner Bud Selig wouldn't have a problem on his hands if he had done his job as an owner. (Keith Birmingham -- Pasadena (calif.) Star News Via Ap)

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Fine. The House Government Reform Committee should send federal marshals with TV cameras in tow to serve each one of its subpoenas . . . and while they are at it, they should issue a couple for Bud Selig and George Steinbrenner and a few other owners and let them explain why they never noticed these guys with Popeye arms and back acne.

"I'll resist the urge to comment on baseball's lack of cooperation other than to say that there has clearly been lack of cooperation -- that's why subpoenas were issued," said David Marin, spokesman for the committee chairman, Rep. Thomas M. Davis III (R-Va.). "They are not an avenue of first resort. We first tried the nice way."

There's a reason MLB and the players' union has formed a rare alliance and jointly hired a lawyer to fight the committee, and it has nothing to do with jurisdiction: They don't want to talk.

"We're not going to be forced to have our players questioned about their knowledge of specific steroid use," MLB attorney Stanley M. Brand said.

And why, exactly, not?

If baseball wanted an exemption from political grandstanding, it should have cleaned itself up years ago. Now not one but two congressional committees will hold C-Span parties at baseball's expense, to express in droning sound bites their moral indignation at the harm done to our youth. "Ironically, baseball's efforts to thwart these hearings by opposing congressional subpoenas simply reinforces in the public's mind the need for action and thus the legitimacy of congressional action," says Andy Abram, a professor of Legal Studies at the College of Charleston who teaches a class titled "Baseball, Mythology and the Meaning of Life." "To the average person in the street, it seems pretty clear -- if you have nothing to hide, why aren't you willing to testify?"

Why would baseball do this to itself? Because one of the things that's happening in this mushrooming feud is that baseball officials are astonished and outraged that, for once, they aren't receiving the kind of favoritism from the federal government they've become accustomed to over a century and a half. A preferential line in the tax code lets baseball owners treat players not as employees but as depreciable assets. Congress has been quiescent (to the point of venality) on matters of antitrust. The Supreme Court has been overtly fawning, adhering to "the time-honored tradition of judges losing their judicial bearing under the influence of baseball," as baseball labor historian John Helyar puts it. When Curt Flood sued baseball over unfair labor practices in 1970, Justice Harry Blackmun delivered a notoriously pro-baseball decision so soft-headed and partisan that it started off with, not the Sherman Antitrust Act or the 13th Amendment, but quotes from "Casey at Bat" and "Tinker to Evers to Chance."

No wonder MLB is screaming "witch-hunt."

"I think government officials should ask themselves whether they've helped created a Frankenstein," says Marin. "We need to keep reminding ourselves baseball has an antitrust exemption, not an accountability exemption."

Baseball won't win any sympathy from the public, not after years of willfully ignoring steroids. This is a legitimate issue of national health, and valid governmental inquiry, and drug policy is part of the appointed business of the Government Reform Committee. Half a million American teenagers admit they've tried steroids. Forty percent of 12th graders surveyed in a recent University of Michigan study said steroids are easy to obtain. If that's not the business of Congress, what is?

"Drug policy is within our specific jurisdiction," Marin says. "Oversight is one of the things we do. We do more than just write law. Oversight itself often produces the effect desired, which is an educated public."

Baseball should be very, very careful how it conducts itself from this point forward. The only thing that has kept it from serious scrutiny thus far is that government officials are suckers for pastoral romance. But you get the distinct impression that Davis is not a baseball sentimentalist, and that he's irked. The fiscal backbone of baseball is its preferential tax status and its congressional antitrust exemption -- an exemption not granted to any other league and based on the outdated notion that baseball is sport and not commerce. So where does Selig get off ignoring the committee's calls? The hubris of it is astounding.

Ironically enough, a justification for the committee's rude and unsentimental inquiry into baseball was written years ago by one of those judges so shamelessly partisan to the game, New York District Court Judge Irving Ben Cooper, who handled Flood's initial suit. In delivering a profound injustice to Flood, he penned something that might be turned against baseball today.

"Baseball has been the national pastime for over one hundred years and enjoys a unique place in our American heritage," Cooper wrote. "Major league professional baseball is avidly followed by millions of fans, looked upon with fervor and pride and provides a special source of inspiration and team spirit, especially for the young.

"Baseball's status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody's business."

You bet it is.

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