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The Mitchell Apologia
By Tom Goldstein


On December 13, 2007, former Sen. George Mitchell released the findings of his investigation into "the illegal use of steroids and other performance enhancing substances by players in Major League Baseball." The main conclusion of the 409-page report: "For more than a decade there has been widespread illegal use of anabolic steroids" and performance-enhancing drugs by major league players "in violation of federal law and baseball policy."

This is news?

Since 1988, when allegations were first reported in the media of steroid use among players, Major League Baseball has known that it might have had a problem with steroid abuse. In 1994, when several players were on a pace to break Roger Maris's single-season home run record, the owners had further notice that something other than juiced balls might be responsible for the slugfest taking place every day at the ballpark. And when home run production exploded in 1998, led by Mark McGwire's record-breaking seventy home runs that year (and his admitted use of the dietary supplement, androstenedione), MLB had more than enough circumstantial evidence to warrant an investigation into whether players were using illegal drugs or other questionable substances to improve their performances on the field. Yet baseball did nothing.

In mid-2002, former MVPs Jose Canseco and Ken Caminiti both claimed that steroid use was widespread among major league players, yet MLB conducted no investigation and ultimately negotiated a weak drug-testing program with the players' union when a new basic agreement was reached later that year. Only after Canseco published his controversial 2005 autobiography, Juiced, where he again alleged that numerous ballplayers were steroid users (including McGwire)—and highly publicized congressional hearings before the U.S. House of Representatives Committee on Government Reform—did MLB finally adopt a drug-testing policy that had significant penalties for illegal steroid use. But still no acknowledgement that baseball had a serious enough problem to warrant further inquiry.

Then, in 2006, came the publication of Game of Shadows by San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, an investigative exposé of the Bay Area Laboratory Co-Operative (BALCO) scandal that implicated major league stars Barry Bonds, Jason Giambi, and Gary Sheffield as users of steroids and performance-enhancing drugs. The book caught the attention of several influential members of Congress, so Commissioner Bud Selig, recognizing that MLB could stall the obvious for only so long, did the prudent thing: he appointed a former Senate majority leader to investigate.

Of course, George Mitchell wasn't exactly a random selection. He currently serves as a director (an officer position) for the Boston Red Sox, formerly served on the board of directors of the Florida Marlins, and spent eleven years as a director (and later chairman of the board) of the Walt Disney Company, parent company of ESPN and, until 2003, owner of the Anaheim Angels franchise. He was also a hand-picked member of baseball's "Blue Ribbon panel on baseball economics."

Mitchell dutifully disclosed these potential conflicts of interest in the appendix to his report, and stated that "none of these matters affected my ability to conduct an investigation that was thorough, impartial, and fair." This may be so, but it should come as no surprise that the strongest words of criticism Mitchell could muster for the inaction of Selig and the owners during the past decade is that "the response by baseball was slow to develop and was initially ineffective." No kidding.

In fairness to Mitchell and his staff of investigators, the report includes a thorough discussion regarding steroid incidents over the years, as well as a compilation of information on eighty-nine major league players alleged by Kirk Radomski, a former New York Mets clubhouse employee, and Brian McNamee, a personal trainer whose clients included Roger Clemens and Andy Pettitte, to have used steroids and performance-enhancing drugs. In addition, the report offers three common sense recommendations: (1) MLB should create an internal "department of investigations" to deal with allegations of illegal use or possession of performance-enhancing substances, and should strengthen its methods for barring drugs from the clubhouse; (2) MLB should improve its efforts to educate players and others regarding the grim health dangers that result from this drug use; and (3) the club owners and the Players Association should adopt a new drug testing program that employs an independent testing administrator utilizing a state-of-the-art testing protocol that goes above and beyond the current urine testing procedure.

However, for anybody who isn't impressed by a thick, lawyerly crafted dossier that provides a lot of detail but essentially repeats information disclosed elsewhere, the Mitchell Report is nothing more than a slick public relations job intended to distract the public and provide cover for Congress that MLB is finally "doing something." Mitchell may consider his report to be an "independent" investigation, but he does little to call out the blatant laxity in Selig's leadership or the failure of baseball's former director of security to do anything more than cursory follow-ups of information about steroid use that came to his attention. In addition, where there is a conflict between accounts provided by different sources, there is no indication that Mitchell or his staff attempted to probe MLB officials to ascertain whether they may have been lying or covering up details. Instead, Mitchell lets stand assertions by the Commissioner's office that its hands were repeatedly tied by the collective bargaining agreement, thus reinforcing the notion that MLB would have done something about steroids but for the intransigence of the Players Association.

According to information available at mlb.com, "the cost of the [Mitchell] investigation has been reported to be as much as $20 million." For probably two to three percent of that amount, MLB could have compiled a general outline of much of the information contained in the report (and with the savings realized, probably funded thousands of youth baseball programs). Of course, such a document wouldn't have had the imprimatur of a respected figure like George Mitchell, but there's little that he has recommended that couldn't have been arrived at by Major League Baseball on its own had there been one scintilla of leadership at the top. Instead, Selig and his cronies looked the other way, and the only condemnation that Mitchell can offer of their actions is that "everyone involved in baseball over the past two decades—Commissioners, club officials, the Players Association, and players—shares to some extent the responsibility for the steroids era." Sure, everybody knew what was going on, but who other than Bud Selig could have forced baseball to deal with the issue?

What is especially galling about Mitchell's report is that when it comes to recommending consequences for illegal behavior and potential violations of baseball's own drug policy, he urges "the Commissioner to forego imposing discipline on players for past violations of baseball's rules on performance enhancing substances, including the players named in this report, except in those cases where he determines that the conduct is so serious that discipline is necessary to maintain the integrity of the game." While I would never suggest that ballplayers should be disciplined based merely on allegations, the idea that players should be given amnesty simply because "being chained to the past is not helpful" is ludicrous. Two of baseball's most accomplished players in history—Barry Bonds, a seven-time MVP and all-time home run record holder, and Roger Clemens, a seven-time Cy Young Award winner and one of the game's greatest pitchers—are implicated in the steroids scandal and Mitchell just wants to let bygones be bygones?

Mitchell even goes so far as to make a gratuitous comparison between the crisis in baseball over steroids and the longstanding conflict in Northern Ireland that he helped mediate to a peaceful resolution: "From my experience in Northern Ireland I learned that letting go of the past and looking to the future is a very hard but necessary step toward dealing with an ongoing problem. This is what baseball now needs."

Where was Bud Selig in all of this? I want to see Clemens' and Bonds' records removed from the game. Set an example.
— post by Taylor Ritchie to the New York Times "Bats" blog the day the Mitchell Report was released, one of 255 comments in a ten-hour period.

There is an oft-cited phrase that fans like to quote when baseball is in crisis—that the commissioner should act in "the best interests of baseball." As the Mitchell Report demonstrates all too clearly, the best interests of baseball no longer concern the integrity of the game, at least not the way most individuals would view that concept. Instead, the "best interests of baseball" have come to mean only the financial viability of the sport: Take no action unless economic repercussions are unavoidable. So baseball dances its way around the steroids mess, Congress sleepwalks through the issue, and, as one anonymous blogger notes, the "culture of cheating will continue and thrive, as sure as there will be a crowd waiting to buy tickets for next season." Play ball!

Where else but in Major League Baseball can someone engage in activity in violation of federal and state law, violate their organization's express policies, violate their employment contract, lie about it to the public, refuse to cooperate with official investigations, and, when caught, "not be punished for past misdeeds." I bet Michael Vick sure wishes he had taken up baseball. . . .
—post by Mark Friedfeld, New York Times "Bats" blog


TOM GOLDSTEIN has been publisher of EFQ since 1998 and its editor since the Fall 2000 issue. He is a graduate of the William Mitchell College of Law.

This column first appeared in EFQ 25:1, Spring 2008

© 2008 Tom Goldstein



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