- Lester Munson, Legal Analyst
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In more than four hours of commentary and confrontation on steroids in baseball Tuesday, members of a House Committee asked questions, made demands and pontificated. They praised Sen. George Mitchell for his report and they interrogated Bud Selig and Donald Fehr. Their inquiries and their colloquy raised a number of questions. Here are some of the questions and the answers to them:
With agreement from both political parties, the committee began the day by announcing it has asked the U.S. Department of Justice to investigate Miguel Tejada for possibly making false statements to federal agents who were looking into the possibility of perjury based on Rafael Palmeiro's finger-shaking denial that he ever used steroids. What is next for Tejada?
Tejada can expect a federal grand jury to begin to investigate the statements he made to FBI agents. It'll begin quickly and it'll either be in Baltimore (where he made the statements to the FBI) or in Washington, D.C. (where the Palmeiro investigation began). The possible charge is known in the federal system as a "1001," and it is serious. Even though Tejada was not sworn in to tell the truth to the agents who questioned him, he was obligated to give truthful answers. If federal prosecutors in Baltimore conclude that he lied to the agents, they will ask for an indictment. It's the same charge Martha Stewart faced; and in her case, it resulted in five months in a federal penitentiary.
Responding to questions from committee chairman Henry Waxman, D-Calif., Selig said he is deliberating about the questions raised in the Mitchell Report concerning Peter Magowan, the owner of the Giants, and Brian Sabean, the general manager, and their alleged failures to act after reports from team trainers about steroids, Barry Bonds and Greg Anderson. What can Selig do to Magowan and Sabean?
Selig, as commissioner, has the authority to punish Magowan and Sabean. Both allegedly ignored an MLB policy that requires management representatives to report any allegation of drug use on their team to the commissioner's office. Mitchell's report shows that both made statements of questionable veracity to Mitchell's investigators. Selig can levy fines and he can suspend them. Owners have been suspended by baseball in the past -- among others, George Steinbrenner for two years (later reduced to nine months) in 1974 for making illegal contributions to President Richard Nixon's re-election campaign; Steinbrenner again in 1990, this time for life (he was reinstated in '93) for paying $40,000 to Howie Spira to dig up dirt on Dave Winfield; Marge Schott for the '93 season for making racist comments, and again in '96 for two years for further racist comments. And Pete Rose was banned for life for gambling while he was the manager of the Reds. The Magowan and Sabean issues are among many situations chronicled in the Mitchell Report that raise the possibility of discipline from Selig. The commissioner faces a tricky and difficult series of decisions as he tries to balance various punishments for an owner, a general manager and a number of players. But his statement to the committee clearly indicates he is already pondering discipline of some sort for Magowan and Sabean.
In the middle of a war on terror, a subprime meltdown and a crisis in health care, this committee spends substantial time on baseball. What contribution has the committee made in seeking a solution for the problem of performance-enhancing drugs in the game?
Beginning with the committee's first hearing nearly three years ago and continuing through this hearing, the committee's public exposure of steroids in baseball undoubtedly has prompted major changes in the behavior of the owners and the players. The first hearing resulted in major changes in the players union contract and caused Selig to appoint Mitchell as his special investigator. The current testing system with its draconian penalties is the direct result of the earlier hearing. It is less clear what might result from this hearing. Although some new ideas emerged Tuesday, any changes that come now will be the result of the Mitchell Report.
But the committee's most important contribution may be that the term "steroid era" is now a routine part of our lexicon. It's a phrase that neither Selig nor Fehr would ever have encouraged; thanks to this committee, it is now part of every discussion of the issue. Instead of asking if there was a problem, we now begin every inquiry from the position that there definitely was a serious problem -- a problem so serious we now routinely refer to it as the "steroid era."
What changes in the law could result from this hearing?
Rep. Christopher Shays, R-Conn., offered in a question to Mitchell an idea that could result in legislation that would change everything in MLB's approach to these drugs. Shays recognized that drug testing in the workplace has been a part of union agreements in the U.S. for decades. It's the legal reason Major League Baseball must bargain with the players union for any change in steroid testing. But Shays drew a distinction between testing for recreational drugs and testing for drugs that are used solely for cheating. Shays' idea, if enacted into law by the U.S. Congress, would remove performance-enhancing drugs ("drugs for cheating") from the collective bargaining process and limit collective bargaining to testing for recreational drugs. That would involve a basic change in American labor law. It's a revolutionary idea. If adopted, it would eliminate the players union from any role in testing for steroids. It would allow, Shays asserted, the kind of definitive action that occurred after the 1919 Black Sox (or "Black Hawks," as Shays misspoke at first) scandal -- lifetime bans for cheating. Shays also raised the idea with Fehr, who responded that a player should be given a chance to redeem himself after he is caught cheating. When Shays expressed his displeasure with redemption for a cheater, Fehr said, "I must say respectfully that we disagree."
What issues did the committee members miss in their questions?
The most provocative and difficult of Mitchell's 20 recommendations is the suggestion MLB turn its drug regulation over to an independent agency that would run the tests and decide on punishments. Instead of a drug program managed by MLB under the union agreement, Mitchell suggests that a totally separate agency run the program, similar to the U.S. Anti-Doping Agency, which decides drug cases involving U.S. athletes in Olympic sports. It would be a radical change. Although delegate Eleanor Holmes Norton, D-D.C., touched on the issue briefly in a question at the end of the hearing, neither Selig nor Fehr expressed any opinion on the issue. Both will be reluctant to agree to it and both believe they have a good system in place. But it is the kind of reform that could easily become popular on Capitol Hill, especially if Roger Clemens, Andy Pettite and Chuck Knoblauch manage to embarrass themselves and baseball at the committee's next hearing on Feb. 13.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
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