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A Defensive Shift
In the interview, Mitchell dismissed as speculation a question regarding possible lawsuits stemming from his report, but he confirmed he has been indemnified by Major League Baseball, which commissioned the report in March 2006 -- an arrangement he described as a "standard provision" in such cases.[an error occurred while processing this directive]
Mitchell said there were only three instances in which he decided not to include a player's name despite evidence of wrongdoing. In two cases, it was because the violations occurred after the player in question had retired, and in a third case the player argued that he had only purchased and possessed the drugs, but did not use them, and was able to produce credible corroborating evidence.
In every other case in which there was credible evidence, Mitchell said he included the names. Baltimore Orioles second baseman Brian Roberts was included in the report. The evidence against him was a statement from former teammate Larry Bigbie, who said Roberts told him on one occasion that he had experimented "once or twice" with steroids.
Asked about the strength of that evidence, Mitchell said, "That's a direct admission, by Roberts to Bigbie."
Players who want to contest the findings can sue Major League Baseball, which indemnified Mitchell and the committee from legal action.
Jim Cohen, a law professor at Fordham University, said any player who is guilty and chooses to sue Major League Baseball over Mitchell's report would face the risk of additional revelations coming to light.
"Absolutely, [discovery] could be a problem," Cohen said. "If I'm representing Major League Baseball, I would . . . want to find out everything I possibly could about the person bringing the suit."
John Dowd, a Washington attorney who led baseball's investigation of Pete Rose on gambling charges in 1989, said the legal standards for proving libel or slander would be almost impossible to meet.
"I don't know what they could sue for," Dowd said. "Number one, [the players] are public figures. Number two, I don't think there is malice [on the part of Mitchell] at all. As long as they've been careful with proof and information . . . [and] as long as people are treated fairly and given the opportunity to respond, that's all [that's required].
"In administrative and civil law, if you decline to respond, the agency or court is entitled to" draw a negative inference.
Mitchell has made clear that he believes the players named in his report were not the only performance-enhancing drug users in baseball -- only the ones he could uncover -- acknowledging that his efforts were hampered by a "largely uncooperative" players' association and a reliance upon law enforcement agencies with open investigations.
Mitchell's report criticized baseball's leadership for what it termed a slow and ineffective response once steroids began taking hold, in some cases highlighting instances in which club officials failed to report evidence of drug use by players.
Mitchell also revealed instances in which players were apparently tipped off to upcoming drug tests, as well as a previously undisclosed period in 2004 when the league's drug testing program was secretly suspended -- as provided for by the collective bargaining agreement -- after results from the 2003 "survey" testing were subpoenaed as part of the federal investigation into a steroids ring operated by the Bay Area Laboratory Cooperative, or Balco.
Asked about the program's suspension on Friday, Rob Manfred, baseball's executive vice president for labor relations, said in an e-mail: "The suspension of testing was short; the players were not aware of it and all of the testing required by the agreement was done in a timely manner. We agreed to the suspension in order to give the union an opportunity to notify its members that test results that were supposed to be both anonymous and confidential had been seized by the government. I felt this was fair and necessary to maintain the players confidence . . . long term."
On balance, though, Mitchell's report was less harsh on management and union officials than some expected it to be, as he commended the sides for the steps that led to the start of mandatory testing in 2002, as well as the subsequent improvements to the policy. "My hope is that the motivation and attitude that led them to [start testing] and the further steps in the intervening five years will carry forward in a new program," Mitchell said. "You can look at the history and find something to criticize, which I did. I did not pull any punches. But in fairness, if you look at their history you have to acknowledge that some steps were taken, and they were significant steps."
Staff writers Amy Shipley in New York and Barry Svrluga and Michael Abramowitz in Washington contributed to this report.