Commentary

Legal questions abound in anticipation of Mitchell report

Originally Published: December 6, 2007
By Lester Munson | ESPN.com

While former Sen. George Mitchell has been investigating the use of performance-enhancing drugs in baseball, two full seasons (2,430 games) have been played. He began his probe on the eve of the 2006 season. The investigation, its length and its possible outcomes raise a number of questions on legal issues. Here are some of the questions and their answers:

The commission that investigated the atrocities of 9/11 completed its work -- from inception by an act of Congress to a final report with detailed recommendations -- in 20 months. Mitchell's work has also gone on for 20 months. Why has the investigation taken this long?

There are two reasons. First, it appears Mitchell is just slow. Some would say he and his staff are methodical and careful. Either way, Mitchell and his staff must sift through a large quantity of allegation, denial, suspicion, innuendo and solid information before they can decide whether to name players. Linking players to performance-enhancing drugs would have significant impact on careers, incomes and public images. The more important reason, though, is the powerful presence of the players' union. It is the smartest and most powerful union anywhere. After generations of strikes, lockouts and hard bargaining, the union has established a series of rights and privileges for its players that would be the envy of workers anywhere. The players, in general, do not trust the owners, and they are doubly suspicious about what Mitchell might do. If Mitchell or his investigators wanted to talk to a player, they first had to talk to the union. And the union would have used its contractual rights to protect its players. It could have taken weeks, for example, to reach the conclusion that a player would not participate in the investigation.

Can Mitchell name players in his report and accuse them of using drugs?

Yes. If there is reliable information that a player has used performance-enhancing drugs, Mitchell can name the player. The tough issue is what constitutes reliable information. It would be easy for Mitchell to name a player if there were a positive drug test. It is unknown whether Mitchell has positive drug tests, but it is unlikely. He is dealing with information and possibly some people involved in the sale or delivery of drugs. For each player, Mitchell must evaluate the information, analyze it, test its veracity and decide whether it is sufficient. The decision on each player will be difficult.

Can Mitchell rely on people such as Kirk Radomski, a former New York Mets clubhouse assistant, who says he sold drugs to numerous players?

Mitchell can and will rely on Radomski and any other dealer he can find. He would have tested the dealer's veracity. After obtaining names from a dealer, Mitchell would have sought to confirm the dealer's information with phone records, financial records and e-mails. If a dealer, for example, told Mitchell that he sold human growth hormone to a particular player, there would be phone records, e-mails and perhaps records of delivery. The word of the dealer confirmed by other information would be enough for Mitchell to name the player. In John Dowd's investigation of Pete Rose's gambling, Dowd relied on information from a group of men who placed Rose's bets, paid his losses and picked up his winnings. Their statements were confirmed by telephone records, lists of bets, personal checks and other financial records.

How can Mitchell rely on the word of a steroid drug dealer?

The union and its lawyers would claim that the word of a drug dealer is worthless. But Mitchell and commissioner Bud Selig would argue that the dealer's story was supported by other information and that the dealer's testimony was an act of newly developed integrity. Radomski, for example, discovered his integrity when he was arrested on serious criminal charges. If he is caught lying to federal agents or to Mitchell, he faces even more charges. It is in his interest to tell the truth about his customers. He is forced into a painful act of citizenship.

Will Mitchell describe evidence in his report?

If Mitchell names players in his report, he must describe each bit of information. It would be a voluminous report, but a detailed description of the information would add enormously to the report's impact. A list of names without supporting evidence would simply add to the uncertainty and turmoil that has marked the steroid era in baseball. A detailed description of information accumulated on each player would make the report conclusive. Any player who denied purchasing or using drugs would find himself facing questions on a signed FedEx receipt or a phone record or an e-mail. Dowd's report on Rose listed each piece of evidence on each bet. Anyone who read the report knew with certainty that Rose had bet on baseball. The evidence told the story.

What if Mitchell is wrong and names a player who never used drugs?

If a player, with some help from the union, could show that Mitchell was wrong, it would be a legal and public relations disaster for Mitchell and Major League Baseball. A single blunder would cast doubt on the entire report. Even the most egregious evidence of drug use would become dubious. And the player would be in court seeking money damages for the defaming of his character and integrity. His lawsuit would be embarrassing and expensive. It would be embarrassing for Mitchell and expensive for MLB. Selig has promised Mitchell that MLB would pay liabilities that result from Mitchell's work. It's called an "indemnification" agreement, and it would require MLB to pay lawyers to defend Mitchell's work and pay judgments that result from mistakes.

What effect will Mitchell's work have on the Barry Bonds prosecution and other steroids investigations?

None. Investigators and prosecutors across the U.S. have been putting together steroids and human growth hormone cases for the past five years. They will continue with their work regardless of anything Mitchell says in his report. The only possible effect might be that it would be a bit more difficult to find jurors to decide a particular case if the accused individual were named in the Mitchell report and received some publicity. That would not be a big problem. There is a large universe of American citizens who have never heard of Mitchell or Radomski or human growth hormone and would qualify as jurors.

Is it possible that legal liabilities and questions about the reliability of information would cause Mitchell to submit a report without naming players?

It is possible, but unlikely. A report without players' names would amount to Mitchell taking a called third strike with the winning run in scoring position. He could try to explain that legalities prevented him from naming names, but it would not work. The legalities would be easily overcome with solid investigative work and legal analysis. If Mitchell does not name names, it will not be because of legal liabilities.

Is there another reason Mitchell would not name names in the report?

If Mitchell submits a report that does not include the identities of players who have used steroids or HGH, we must look at the relationship between Mitchell and Selig. Mitchell is a director of the Boston Red Sox, one of the most valuable franchises in the sports industry. Selig was instrumental in placing Mitchell in the Red Sox ownership. Many have suggested that Mitchell cannot be independent and would do whatever Selig wants him to do in the report. Selig, however, insists that Mitchell is a distinguished public citizen of impeccable integrity who will follow the facts and make independent judgments. Selig might be right. Does Selig want names in the report? Or does Selig want a whitewash that will end the steroid era and allow MLB to move on? Selig says he wants an honest, independent look at the problem. But if Mitchell blinks and fails to identify players who used steroids, there will be serious questions about Mitchell's independence.

Lester Munson, a Chicago lawyer and journalist who has been reporting on investigative and legal issues in the sports industry for 18 years, is a senior writer for ESPN.com.