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Debate Club
DEBATE CLUB 12/13/04

What Should Baseball do about Drugs?

Paul Finkelman and Gary Roberts debate.

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Barry Bonds has hit more home runs in a season than any major leaguer in history. He broke Babe Ruth's slugging record, and he is hitting home runs at a pace to replace Hank Aaron as Major League Baseball's all-time home run king by the end of the 2005 season. But Bonds hit many of his dingers while using steroids. Similarly, Yankee's slugger Jason Giambi's two long balls in game seven of the 2003 ALCS that helped the Yankees defeat the Red Sox were likely hit under the influence.

Baseball has a drug problem. While some other professional sports—notably, the National Football League—have strict drug testing policies, baseball's is lax. Seven-time MVP Bonds now seems in no danger of being banned, but some punishment is surely necessary. What consequences should he face? Should he be banned for the coming season? Should his records be marked with asterisks?

Paul Finkelman is the author of a number of law review articles on baseball and law and was an expert witness in Popov v. Hayashi, the litigaiton over the ownership of the Barry Bonds 73rd Home Run Ball. Gary Roberts is Deputy Dean, Sumter Davis Marks Professor of Business & Corporate Law, and Director of the Sports Law Program at Tulane University.

Finkelman: 12/13/04, 08:56 AM
There are a few issues here that need to be resolved.

First, what does baseball do in the future? The answer seems obvious.

Baseball should develop an ironclad rule that is tough and only slightly forgiving. If a player is caught using steroids he should be out of baseball for a full year. If the player uses them again, he should be banned for life. No one uses steroids by accident. So, proof of steroid use should lead to automatic suspension from the game or a complete ban from the game. Presumably some player may have a steroid defense and, if so, some administrative hearing could consider it. We should have due process, but, I find it hard to imagine what such a claim might be.

Steroid testing should be done on everyone at the beginning of spring training and randomly on everyone during the season. There should also be testing if there is some sort of real suspicion of use. The players' union should join in this effort because in the end the players are the ones most hurt by steroids. Those who use them harm their bodies; those who don't use them face unfair competition.

What about players who admit to having used them? This in part must be determined by the player contracts and rules of MLB at the time of the steroid use. However, under the power of the commissioner to act in the best interest of baseball, it might be reasonable to suspend for a season all players who admit to past use. Under such a program players would be encouraged to step forward, with the threat that anyone who does not step forward will be banned for life if his steroid use is discovered. This might mean that Barry Bonds does not play the 2005 season. So be it. He knew what he was doing, he broke the rules, and he should suffer the consequences. However, the timing of when a player took steroids should matter. There should be no ex post facto retribution for players who took steroids when there was no rule against it.

The Bonds and McGwire records (and maybe the Sosa records) are difficult issues. If they took steroids when they broke the 60 and 61 home runs in year record, then baseball must take note of this. But, we cannot undo the past; we can't replay the seasons. The asterisk might be a way, so too might a ban from the Hall of Fame. Pete Rose is not in the hall of fame, despite being one of the greatest players ever. But, his baseball "sins" did not affect his playing ability; he deserves to be in the Hall of Fame for his skill and accomplishments, even if he should remain banned from baseball as a manager because he placed bets while managing. But, Bonds and the others are different. If they took steroids, then they cheated to obtain the records they hold. They corrupted the game on the field, rather than off it as Rose did. Surely their "sin" is greater. However, the offense must be measured against the standards in place at the time. It is my understanding the McGwire took a substance during the season he it 70 home runs, but that this substance was not banned at the time. It would be hard to argue he should be punished—either with an asterisk or not being allowed in the Hall of Fame—for doing something that was not banned at the time.

In sum, we need to understand what was banned when, and when people took what; then we can consider the appropriate response to the records compiled by these steroid users.

In the end these are not strictly legal issues. They are about business and sports ethics. Baseball needs to clean up its act. Steroids corrupt the game in ways that far exceed what betting on your own team might do.

Roberts: 12/13/04, 05:32 PM
First, let me say that I am going into this playing the devil's advocate, because I agree with much of what you say, Paul. But as a law professor, it is my job to present the other side, so I will do so, recognizing that I don't really subscribe to these views. But these arguments are not totally without merit either. So let the fun begin.

One can argue with some force that baseball should do nothing about the current controversy except adopt a policy that players may use any drug that is not illegal under either federal or state laws. Why should anything that isn't illegal be considered cheating if it actually enhances the quality of the athletic performance? The only really good answer to this in the case of artificial substances is that using them poses a health risk to the athlete in future years and it is not appropriate to create a culture where in order to be successful one has to do something that is potentially very harmful to him. But why? I would agree that we should not allow high school or college athletes to use substances that might harm their health, because sports is not how the overwhelming majority of them do or will earn their living. But professional athletes, especially baseball players, are just that—professionals whose job it is to entertain the public with the best performances they can deliver. Taking steroids, just like taking vitamins, lifting weights five hours a day, having surgery done to repair any injuries, or whatever, enhances the quality of the performance the athletes gives, and for which he is handsomely rewarded. If the public does not care that the great performances they are watching are by people who have taken drugs (or vitamins, or lifted weights, or had performance enhancing surgery), and there is a lot of evidence that suggests that deep down the public does not care (any more than it cares that the majority of Division I college basketball and football players are not really students), then why not give the public what it wants—the very best athletic performances possible?

We provide far greater than normal compensation to workers who take a huge risk to their health by going to Iraq to build infrastructure, to workers who fight oil well fires or build skyscrapers, to all kinds of different people who take personal risks to perform jobs that enhance the public good. Major League Baseball players make huge salaries. If young people entering professional baseball are willing to take the risk of dying young in order to reach for the brass ring of fame, glory, and fortune, why not let them? (Barry Bonds may die when he's 50, but he will certainly have lived an exciting, glorious, and pampered life—who is to say his was a worse life than the guy who lives 85 dull and boring years toiling away as a law professor, or whatever?) These athletes are adults and understand the choices. And in the process, our athletes provide the public with fantastic entertainment. If we are going to ban every activity that jeopardizes the health or safety of the athletes, then why not make boxing illegal? Require that NASCAR cars have governors that prevent speeds of over 80 mph? Outlaw wrestlers from going on crash diets to make weight? Or even outlaw football? (The number of former NFL players that hobble around on arthritic knees and ankles in their 40s and 50s is remarkable.) In short, if the public wants to see 500 foot home runs and there are young men willing to run the health risks associated with taking substances that allow them to hit those home runs and make millions of dollars, why not cut the pretense of public outrage and let them do it?

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Finkelman: 12/14/04, 09:47 AM
The issue here is not about "law," although it is clear that laws have been broken with regard to steroids, otherwise we would not have a grand jury investigation of this issue. But, let's assume that it is not against the law for a player to take steroids. The law is not the issue. It is not against the law for a player to go to Las Vegas and bet on his team or on another team. But, if a player does that, he will be out of baseball. It is not against the law for a former player to be a greeter at a Las Vegas casino, but as long as he does that, he should not expect a job in Major League Baseball. It is not against the law for a player or a member of management to be blatantly racist, but he might lose his job if he is.

Baseball has the power to ban steroids because the commissioner has the power to act in the best interest of baseball. It is time the commissioner did this.

Baseball must protect the integrity of the game itself. Steroids undermine the integrity by placing in doubt the skills of the players, as fans assume that homers are hit because of steroids, not skill.

Steroids are obviously dangerous to the players. Gary, you correctly point out that professional baseball players are adults and can make adult decisions. But, the issue of steroids is not that simple. If some players use steroids, others are forced to do the same, in order to compete; those who do not may lose their job. Thus we have an industry which condones, and silently encourages (through higher salaries) the use of something known to be harmful to their employees. In no other industry would we condone this or encourage it. Barry Bonds (assuming Bonds used steroids, as the news reports) would have been a great player without steroids. If no one used steroids, Bonds would still be a great player, relative other players. But, if almost no players took steroids, and if there were sanctions for those who did, then players would not feel the pressure to do so.

This is not about whether some jobs or sports are more dangerous than others; it is about whether a business (and MLB is a business) creates the safest environment possible for its employees, the players. NASCAR is dangerous, but the analogy here might be if someone discovered that without seat belts or any other safety devices cars could go just a little faster, and so drivers had to choose whether to take that risk. One would hope that NASCAR would say no—that is not a risk you can take. Again, football is dangerous, but I would hope the NFL wouldn't allow players to abandon their helmets because they could faster without them.

The bottom line is that management indirectly (or directly?) encourages dangerous behavior when it does not strictly ban steroids. MLB should ban them and enforce the ban with tough rules and sanctions.

In addition, the players association should come out for a total ban as well. Until the union does that it is not acting in the best interest of its member and is forcing the members to choose between their health and their jobs. No one should face that choice when, as in this case, it can so easily be avoided.

Roberts: 12/14/04, 05:21 PM
You write that "Baseball must protect the integrity of the game itself. Steroids undermine the integrity by placing in doubt the skills of the players, as fans assume that homers are hit because of steroids, not skill." But that begs the question. Home runs are hit only because the player has great skill at swinging a bat at a little ball coming at him at over 90 mph. Most of the folks reading this could take steroids all their lives and still not be able to hit that little ball. It is true that those with great skill can hit more and longer home runs than they could without using steroids, but that would be true because they lift weights, eat nutritional food, and take vitamins. Hank Aaron's record should be called into question because he did not drink gallons of beer and carouse all night before games like Babe Ruth did—the fans must "assume that his homers were hit because of healthy living, not skill," to paraphrase your argument. The only thing that distinguishes steroids from any of these other performance enhancing behaviors is that there is strong evidence that using steroids as a young man will risk serious health problems later in life. Thus, the real issue becomes simply whether we should allow a culture that allows people to put their long-term health at serious risk, and thereby forces others to have to do the same if they want to earn the riches of playing major league sports, in order to enhance the quality of the entertainment experience for the fans.

We allow people to take serious risks to themselves in order to build bridges and skyscrapers, to engage in dangerous sports (like boxing, racing cars at enormous speeds, being shot out of canons, or jumping canyons on motorcycles), to work with hazardous materials, and to do all sorts of other very dangerous things to benefit people in one way or another. Why not let professional athletes take such risks to enhance the pleasure fans get from watching a sporting contest? We let high wire circus performers perform without a net under them to enhance the thrill for the spectators—and occasionally one of them falls and dies, but nobody calls for nets to be installed to preserve the integrity of high wire acts. If someone wants to earn millions of dollars being a professional baseball player, he may feel pressured to use steroids to make himself the best that he can be. If he doesn't want to take those health risks, he can take his chances or go into some other line of work. Nobody forces anyone to be a baseball player. That is true for guys who fight oil well fires, tame lions, or do dangerous stunts for the movies, as well.

The fascinating thing about this whole episode is that the one group of people who ought to be most adamant about cleaning up the game so that players don't have to take steroids and risk their health is the players, yet that is the one and only group that so far has impeded instituting an aggressive regime that will allow players to compete without having to take these drugs. If the players are dumb enough to stand in the way of getting steroids out of baseball, let 'em. They are the only ones to be big losers. Meanwhile, the colleges and high schools need to be very aggressive is making sure that their athletes don't use these drugs in the foolish hope that doping will propel them into the big leagues. (Note: If anything, that is the best argument for keeping steroids out of the major leagues—so that there will not be an incentive for young kids to ruin their health in a futile effort to "be like Barry.")

One final point or question. When the day comes (and it is coming soon since the science has already been developed at the University of Pennsylvania and in Russia, and probably elsewhere) when scientists can perform surgery on people to alter their DNA to make them bigger, stronger, and faster, and doing so does not pose any health risk to the person being genetically altered, should baseball (or sports generally) prohibit such alteration? Why? What if testing for it is very invasive or nearly impossible? How should or will sports respond to this brave new world?

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Finkelman: 12/16/04, 09:07 AM
You're back to the argument that adults can take risks, so let them. How far should we take it? Repeal all safety regulations? Allow the marketplace to rule with regard to all safety in the work place? Let's get rid of laws requiring seatbelts, air bags, helmets, etc. As for baseball, how much more exciting would it be if we no longer required helmets, so that only girly-men wore helmets when batting? And those dumb chest protectors for catchers and umpires? Why have rules at all about equipment; fill your titanium bats with cork and let's have a go at it; bring back the spit ball and anything else that gives one player an advantage over the other; and let's get Ty Cobb and his sharpened spikes back on the field. The victory belongs, not to the skilled or the talented or those who practice the most, but to the last man standing and his trusty chemist.

Almost every kid in America wants to play ball at some point. So, let's give them role models of steroid-filled bodies; the kids will not talk about who has the best bat or the fastest pitch, but who has the best chem lab. And the kids will all want to be like their heroes. Gary, the argument you put forth wants it both ways; you will allow the players to destroy their lives for millions and then say, but keep it out of the schools. One powerful message there!!! The only message that high school (or junior high, or grammar school) kids will understand is the one that comes from tough penalties for steroid use. Kick a steroid bloated hero out of the game—suspend Barry Bonds next year for his "hand cream"—and then we will send a message that matters.

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