Thursday, Dec. 13, 4:30 p.m. ET

Steroid Use in Baseball: The Mitchell Report

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Howard Wasserman
Sports Attorney, Sports Law Blogger
Thursday, December 13, 2007; 4:30 PM

Some of Major League Baseball's greatest stars, including pitcher Roger Clemens and outfielder Barry Bonds, are linked to the use of steroids and other performance-enhancing drugs in a report released today by former Senate Majority leader George J. Mitchell.

Howard Wasserman, sports attorney and sports law blogger, will be online Thursday, Dec. 13, at 4:45 p.m. ET to discuss and comment on the Mitchell Report and the upcoming news conference by Baseball Commissioner Bud Selig.

Submit your questions and comments before or during today's discussion.

Wasserman is an sssociate professor of law at the Florida International University College of Law. He is writing on the intersection between sports and free expression and has presented on this subject at the Cooperstown Symposium on Baseball and American Culture at the National Baseball Hall of Fame.

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Howard Wasserman: Welcome. As you all know, the Mitchell Commission Report was released today on the use of steroids and other performance-enhancing drugs in Major League Baseball. It identifies a number of players who allegedly used PEDs and made a number of forward-looking recommendations. Bud Selig is holding a press conference now to give MLB's thoughts.

I am here for the next 45 minutes or so to answer your questions about what comes next, legally and within MLB rules.

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Washington, D.C.: What is the culture in baseball and other professional sports that enables/allows steroid use to occur? Do athletes bring it with them when they enter a professional sport or is it somehow acquired after they go pro?

Howard Wasserman: Speculating: I think it is inherent in the competitive nature of great, competitive athletes. The desire to do what it takes to maximize their ability and their performance. And that often may mean disregarding health risks.

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Atlanta, Ga.: Dale Murphy, in his I Won't Cheat Foundation and in interviews, has said the only thing that will work in terms of getting steroids out of the game is a zero tolerance policy. That is, you use/you're out. End of story. He says there is a precedent for that action because of gambling...Black Sox, Pete Rose, etc. The message is heard and more importantly believed. What do you think about a strong zero tolerance policy with regard to steroid use?

Murphy also says he supports moving forward without baseball imposed sanctions on former players who used, along the lines of Sen. Mitchell's recommendations.

Howard Wasserman: Maybe. But you still have the problem of catching people using steroids. And Mitchell made clear that testing is going to catch a relatively small percentage.

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Fairfax, Va.: Does this report just amount to forty lashes with a wet noodle? Does it have any teeth? Will recommendations be carried through?

Howard Wasserman: Listening to Selig right now, he seems intent on at least investigating the possibility of punishing players for past use. The "teeth" of the report depends entirely on Selig and what he decides to do.

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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?

Thanks.

Howard Wasserman: But should the teams that traded for them have known or suspected as well? Did the traded-to teams assume some risk?

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Dupont Circle, Washington, D.C.: What will happen to the active players listed in the report as having taken steriods? Will Paul La Duca be suspended leaving the Nationals having to look for a new everyday catcher?

Howard Wasserman: Selig just said that he will review the report and the factual support for each name and determine, case-by-case, which players to punish and which to leave alone.

A lot will depend on how much evidence there is that a given player used.

Howard Wasserman: More: Listening to Selig, he seems to be planning on going after some players for past use.

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Sherbrooke, Quebec: Sir,

Can Andy Petitte's recently signed contract be nullified as a result of his use of steroids?

Howard Wasserman: Not clear. Two questions: 1) Was the contract based on his steroids-based performance, such that we now are going to be getting (presumably) non-steroids performance? 2) Is Petite going to be punished?

If # 2, there should be an out to the contract. As to #1, did the team assume the risk of signing him?

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Annapolis, Md.: Does this report prove that baseball is serious about cleaning up the sport?

Howard Wasserman: Depends on what MLB does with it. If the Union and league get together and take serious steps moving forward, yes. If there are serious punishments for past use, I suppose. At some level, accounting for your past reflects seriousness.

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Elicott City, Md.: Can we really trust this report considering Mitchell works for the Red Sox and there are no major Sox players involved?

Howard Wasserman: I still can't figure out how much weight to put into that connection with the Sawx. Mitchell has too much on the line with this report to compromise his reputation in that way.

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Washington, D.C.: Do the Mitchell report's revelations preclude Roger Clemens et al from being inducted into the Hall of Fame -- either by rule or simply as a practical effect?

I personally would think that if Pete Rose is prohibited from the Hall due to gambling, it would seem to me that gaining an unfair advantage in terms of performance or longevity through the use of illegal drugs would disqualify a player from the hall as well. What a sad day.

Howard Wasserman: If Selig suspends/bans Clemens (which I seriously doubt he will do), then he will be ineligible for the Hall (for the same reason Pete Rose is--he is on the ineligible list).

Otherwise, it will be up to individual voters to decide not to vote for him because he used steroids (as the voters did with McGwire last year).

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Baltimore, Md.: How do you expect the players who have been exposed will react? Their teams? Will their playing ability be affected now? Will they keep their contracts? Are they stigmatized?

Howard Wasserman: I think they are stigmatized in the media. Maybe not so much with the fans, who do not seem to care about this as much (especially with *their* players).

Again, it all depends on what Selig does with players who were named.

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Alexandria, Va.: In light of the Curt Flood Act and the CBA, is there really any basis for Selig to discipline players who have never failed a drug test and are not under indictment under either the best interests of baseball clause or the integrity/morals clause in the player contracts?

Howard Wasserman: Selig has the power to act in the best interests under the rules of Major League Baseball, based on his own findings and conclusions about wrongdoing. It appears that anything he does is going to be subject to arbitration under the CBA and possible reduciton in the penalty.

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Atlanta, GA: Going back to the zero tolerance point...my question is, given the current testing possibility and the potential that blood tests could (albeit an iffy could at this point) be used in the future to detect HGH, would zero tolerance work? I think the answer is yes, as long as it was enforced across the board.

And even if it caught a relative few, wouldn't the harsher penalty have a sobering effect on those tempted to use?

Howard Wasserman: Maybe. But if we go back to my earlier point about the competitive nature of the players, some may be willing to take a chance that they can get away with it, that they will not get caught

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Howard Wasserman: Note that zero tolerance is fine, but you still have to have some way to prove the players are engaged in the wrongdiong.

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Mt. Vernon, Va.: So, how is it that Mitchell is so incredibly sure of Barry Bonds's steroid use, yet MLB and the federal government have never been able to prove it? Does he have proof, or accusations?

Howard Wasserman: There is no difference between proof and accusations until they have been submitted to a jury or some other person to act as fact-finder. Testimony accusing someone, if accepted, becomes proof.

And the federal government is going to have to prove Bonds used steroids in order to convict him of perjury. So stay tuned.

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No Penalties?!: How can Mitchell even advocate that MLB should not impose penalties on players that have used steroids in the past? That seems ludicrous to me! These men are/were earning millions and millions of dollars to do their job and they lied cheated while doing it and will now be held harmless for their actions?

I know that if my boss caught me lying or cheating to get my job done, I'd be fired on the spot, and potentially sued. And my 5-figure salary is pennies to my employer.

You know Selig is too wimpy to punish them in anyway and will do the bare minimum to ensure this doesn't happen again. He's not the best commissioner out there.

What a great example for the kids.

Howard Wasserman: Well, in part the difference between wrongdoing by one person and wrongdoing by 50+ makes a difference. Matters of proof make a difference--should baseball suspend someone just on the evidence of Kirk Radomski?

And we have ample evidence that people cheat at work all the time and do not get fired for it--if it helps their performance. Which steroid use did. Selig cannot simultaneously tout the popularity of the game and call this the darkest period ever.

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Laurel, Md.: I was actually surprised by the lack of concrete evidence relating to many players. I'm no lawyer (unlike yourself) but buying is one thing and using is another. The report contains a lot of hearsay, how reliable is that? Also, it seems likely that there will be a subcommittee hearing in the House, will they be able to compel testimony that Mitchell wasn't? And if so, who?

Howard Wasserman: The concrete evidence is the testimony from Radomski. That is "concrete"--whether you cna believe Radomski is another story. Yeah, buy and using are different--but if someone buys steroids, does that allow you to conclude that they used them? This would make a great final exam question for an Evidence class.

Yeah, the House can compel testimony--the House committee has the power to subpoena and failure to comply could be contempt of Congress. Players also will be under oath and subject to perjury. But they also could assert their 5th Amendment privilege. Or, like McGwire, decide "not to talk about the past."

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Washington, D.C.: I've only glanced over the report, but there didn't seem to be much information about McGwire in there. The stuff that was included was either about his use of andro or the allegations in Canseco's book. What should we take this lack of evidence about McGwire to mean?

Howard Wasserman: Perhaps nothing more than that the witnesses whom the Commission was able to get to talk did not know anything more about McGwire. This Report cannot be taken as the final word, because the Commission was working from a relatively narrow pool of witnesses--only those few (mainly Radomski and a couple players) who were willing to talk.

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And we have ample evidence that people cheat at work all the time and do not get fired for it -- if it helps their performance.: Maybe...but that doesn't make it right.

The more people condone that type of behavior -- it's okay to cheat, as long as it yields good results -- the more people will do it. Sorry, but I prefer people to be held to higher standards than that.

Howard Wasserman: Not saying I condone the behavior. I merely was responding to the suggestion that if someone else cheated on his job, he would be fired. That is just not so, as a factual matter.

There are a lot of considerations that factor into the decision on whether or not to punish--some are nefarious (this guy is making us a lot of money through his cheating, let's let him continue doing it), some less so(is it worth the cost).

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Washington, D.C.: So will hearings be conducted in Washington on this again?

Howard Wasserman: Probably. Which will make for more great circus and will do absolutely nothing at getting to the truth.

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washingtonpost.com: The Mitchell Report: Naming Names

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Washington, D.C.: I had speculated Clemens was using steroids. No power pitcher in the modern, except for Nolan Ryan, has lasted as long as Clemens. Also, Clemens's final 4 years in Boston were marred by injury and poor performance. Then miraculously he start playing better than before, a la Mark McGwire, Rafael Palmeiro and Barry Bonds. I have never liked him, and I am not sad he was exposed.

Do you think people will have more sympathy for Bonds, knowing that steroids use was so widespread it was almost stupid not to take advantage of performance enhancing drugs?

Howard Wasserman: Any sympathy will run with what you thought of the player to begin with--if you didn't like Clemens before (i.e., if you lived anywhere near New England), now you just really don't like him. Is Bonds less culpable because everyone else was doing it? I doubt it. Bonds had the misfortune to have (allegedly) lied about it under oath).

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St. Louis, Mo.: Can the criminal violations truly be ignored? Is there a statute of limitations on pressing charges? By going public with this information, does that make it harder to prosecute and have a fair trial? Do you think that is the Senator's intent? To make it so it is impossible to prosecute the past and thus allowing baseball to move forward.

Howard Wasserman: Mitchell clearly seemed to want the Report to stand as a historical document and to shift the focus onto recommendations for the future, not punishing past misconduct. So I think he would not want to see criminal punishment or MLB punishment.

Mitchell pointed out during the press conference that the government historically does not punish use--only possession (where someone is caught with the drugs on them) and distribution. So I would be surprised to see that change now.

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Anonymous: Did you notice that none of the names included were major stars who are going to be around for the next 5-10 years? It was guys like Clemens who were out the door or Pettitte and Tejada who are in decline.

Howard Wasserman: Yeah, but remember that the report was dealing with conduct back into the late 1990s--when Clemens was, indeed, a major star and Tejada was at his apex. Maybe is suggests that younger players were not using. Maybe it suggests steroids are necessary for either older players trying to stay healthy and fit (which was the case with Bonds and Clemens) or for marginal players.

Or maybe the big stars had other avenues to get PEDs besides the clubhouse attendant for the Mets.

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Washington, D.C.: I see you're at Florida International University. Isn't that the same school Michael Vick attended? Did you know him? What has been the reaction there concerning his recent sentencing?

Howard Wasserman: Michael Vick attended Virginia Tech. FIU just went D-IA and is hoping to soon have a player of Vick's athletic quality (if not character).

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Anonymous: If they do conduct hearings, can the members of Congress look like they've studied up on the sport a little bit. I remember during the last set of hearing one congressman calling it the National Baseball League. Seriously, folks, have you been living under a rock your entire life that you don't know the name of the sporting league?

Howard Wasserman: Doubt it. Because members of Congress never look like they are up on it. The hearings will be little more than political grandstanding -- again.

But that apparent lack of knowledge of how baseball really works supposedly was a criticism of the Mitchell Commission--people who were questioned said they were asked very simplistic questions that could not really get to the bottom of anything.

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Washington, D.C.: Why did all these players write these checks to Radomski if they WERE NOT using steroids? And, didn't they know that the checks constituted a PAPER TRAIL?

Howard Wasserman: Supposedly, one witness, when asked about a check from another player to Radomski, said he did not know if it was for steroids--it could have been for getting McDonalds.

Again, circumstantial evidence on parade--we do not know (other than what Radomski has said) what the check was for.

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Houston, Tex.: What strikes me about this whole story is the fact that only a couple of players have ever admitted using steroids. Otherwise across the board the players totally deny any involvement. And the Mitchell report simply wants to move on, while at the same time some of the evidence is very damning. Does truthfulness enter into this discussion at any point?

Howard Wasserman: Mayve the report reveals a Truth: These are the players whom we have evidence have used steroids in the past. Now, whether we should punish them for that use is a separate question, apart from the Truth.

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Anonymous: Will this report prod other sports ('cough' the NFL) into looking at performance enhancing drugs in their own sports?

Howard Wasserman: No. MLB ordered this investigation because Congress and the media goaded Selig into doing it. Since the NFL never is subject to the same criticism or scrutiny, there is no incentive for it to take it on itself to do it.

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Shirlington, Va.: How do you think this will affect the individual teams? How do you predict they will react to the players accused? Will the accused be limited in their ability to play by the respective coaches? How do you see the game progressing?

Howard Wasserman: My guess is that teams will not do anything on there own. They will wait for Selig to act (and for the labor arbitration process to run its course), then act accordingly.

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Anonymous: Not to defend Clemens since it seems pretty clear that he used according to the information in the report. But many reporters have written at length about his workout regimen and his development of a sinking fastball, so he was no longer trying [to] blow guys away with a 98 MPH stuff like in his younger days.

Howard Wasserman: Fair point. Although the workout regimen is tied to PED use. The way most PEDs work (McGwire explained this as to Andro) is by enabling players to work out harded and longer and to develop their muscles and body (not just in terms of size, but in terms of how the muscles work and respond).

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Howard Wasserman: Looks like that is it. Thank you all for great questions. Should be interesting to watch in the coming months.

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