So yes, after much breathless speculation, George Mitchell named names. Eighty six, in fact, in his long-awaited report on steroid abuse in baseball released Thursday. Among them: 55 hitters, 31 pitchers and 33 active players on a list that ranged from legends (Barry Bonds) to all-stars (David Justice, Eric Gagne, Jason Giambi, Gary Sheffield and Miguel Tejada) to staples of the transaction column (Josias Manzanillo, Nook Logan, etc.)
But the biggest name of all had to be Roger Clemens, considered by many the greatest pitcher of all time. Of course it shouldn't really be all that surprising that the Rocket, who issued a vehement denial Thursday evening, made Mitchell's roll call. After all, in 2006, the Los Angeles Times had reported that Clemens and Andy Pettitte, another star of the Mitchell report, were among the players former pitcher Jason Grimsley (yup, he's in there too) accused of using performance-enhancing drugs. But for whatever reason, after his denials, most people largely gave Clemens a pass. The "suspected steroid user" label never really stuck to Clemens, like it did to Bonds and others, despite the fact that, like Bonds, he continued to defy his age and rack up amazing numbers well into his forties.
How did they get Clemens? The Mitchell investigators interviewed his trainer, Brian McNamee, who told them that he injected Clemens in the buttocks with steroids four times over a several week period in 1998, when Clemens was playing for the Toronto Blue Jays. (He won the Cy Young award that year). Also, according to McNamee, he injected Clemens during the 2000 and 2001 seasons, when he played for the Yankees and won another Cy Young.
While Clemens will be the focus of the Mitchell report fallout, baseball and its players union have a host of issues to sort through going forward. A quick breakdown.
Can active players be suspended?
Baseball can certainly try. Though Mitchell strongly urged that the commissioner move on and not discipline current players except, as he vaguely put it, in cases where a player's conduct is "so serious, that discipline is necessary to maintain the integrity of the game." Selig didn't back off of possible discipline, saying he'd examine each player on a "case-by-case" basis. But if Selig goes after any active guys, the union is going to fight it and hard. Baseball's drug agreement clearly states that a player is penalized after he tests positive for a performance-enhancing substance, is found in possession of it or distributes it. And for most players named in the report, which is already being slammed by many observers for naming names based on a combination of hearsay and canceled checks, Mitchell did not come close to uncovering a positive drug test.
But that hasn't stopped Selig from playing hardball. A week ago, Jay Gibbons of the Baltimore Orioles and Jose Guillen of the Kansas City Royals were both suspended for 15 days after media reports said they received shipments of human growth hormone after January 2005, when baseball banned the substance. Gibbons apologized for his drug use and accepted the suspension. Guillen filed a grievance through the baseball player's union and an arbitrator will rule on the case.
The arbitrator's ruling in the Guillen case suddenly carries enormous consequences for the players named in the report. Also, the length of time that Guillen and Gibbons were suspended 15 days offer clues as to how baseball might treat past offenders. The length of that suspension corresponds to the rules that were in place for a second positive drug test in 2003 and 2004, the years in which Guillen and Gibbons had already received shipments of performance-enhancing drugs (according to the reports, the shipments stopped in the summer of 2005). So baseball backdated the penalty if you used in 2004, we'll seek 2004 punishment (today, a first-time offender gets a 50-game suspension).
That's very good news for a players like Clemens and Pettitte, who, according to the Mitchell report, used steroids before 2003. Why? Because up until that year, despite the fact that it technically banned the substances, baseball had no drug testing, and no steroid penalties. So if Roger wants to make yet another comeback, he will likely lose no time, and pay, for his drug use.
How did Mitchell pull this off?
What legal right did baseball have to expose the dirty deeds of its own players? Could your employer, say, investigate your drug use, and issue its conclusion in a report to the public? The answer seems to be yes. "A player's privacy rights would not include having crimes committed by them concealed by the league," says Jim Cohen, a Fordham University law professor. Using steroids without a prescription is a criminal act, so baseball may not have been out of bounds here. Then again, as many lawyers assessing the report made clear, the report doesn't exactly offer rock solid evidence that such crimes were actually committed.
As commissioner, Bud Selig has the power to launch whatever type of investigation he desires. George Mitchell was essentially acting as an agent of the commissioner during the entire process. But from the beginning, Mitchell faced a major obstacle: he had no subpoena power. Plus, he was facing a bitter players union, which felt it had already bent over backward to allay concerns about steroid use, twice agreeing to open up the 2002 collective bargaining agreement to strengthen penalties for drug users. Predictably, the players union balked. Frank Thomas and Jason Giambi were the only active players who talked to Mitchell's team; the others didn't even go so far as to issue denials to Mitchell. So the former Senator turned to gathering information from off-field employees trainers, general managers, clubhouse attendants, etc.
But judging by the report, Mitchell didn't have much success until baseball hit a home run in April, when Kirk Radomski, a clubhouse attendant for the New York Mets between 1995 and 2005, pleaded guilty to providing anabolic steroids and human growth hormone to dozens of players and their associates. In exchange for what presumably will be a lighter sentence he faces up to 25 years Radomski agreed to cooperate with Mitchell's investigation. The Radomski probe also connected Mitchell's team to Clemens' trainer, McNamee. Cohen notes that it's certainly "unusual" for a private actor like Major League Baseball to operate in a law enforcement realm. "It's weird," says Rick Karcher, a professor at the Florida Coastal School of Law. "Why would the state have incentive to do that? 'Yeah, we'll give you a lesser sentence, if you talk to baseball?'"
Still, there is a way the Feds could benefit from the unusual partnership: Mitchell and his team do much of the legwork, pinpointing who used illegal drugs and who distributed them. Then, if the government wants to press criminal charges against a specific person, it can subpoena the evidence in the report, the investigators, Mitchell, whomever, and pursue the case.
So what you have here is an employer Major League Baseball conducting an internal investigation that could leave certain employees subject to a criminal probe. And you thought your boss stunk. "To me, the most interesting question is are there prosecutors chomping at the bit here?" asks Michael Shapiro, a criminal defense attorney. "Has Mitchell presented them cases on a silver platter?" At his press conference, Mitchell stressed that prosecutors have more important concerns than punishing individual past steroid users, and that there is no evidence that prosecutors would jump on this. But if any of the players are fingered as passing on steroids to their teammates, which could potentially mean more than just possession, it could be a different story.
What recourse do the players have?
If a player feels he has been falsely accused of steroid use, he can file a defamation suit against baseball. The problem with that, from a player's perspective, is that any major league player named in the report even a relatively unknown one would probably be considered a public figure. As such, not only would the player have to prove that he didn't use steroids, but that Mitchell published his name with "actual malice," with "a reckless disregard for the truth." Of course, a bespectacled former Senator who is the chairman of the largest law firm on earth, and who helped broker the Northern Ireland peace deal of 1998, might be tough to paint as the reckless type. "They are not impossible to win," says Jeffrey Standen, a Willamette University law professor, of defamation claims for public figures. "But it would be very, very hard."
Another reason why defamation suits aren't too likely, besides their high burden of proof, is that the players would have to testify under oath. "That's exactly what they've been trying to avoid up until this point," says Shapiro. In other words, if players are going to sue, they'd better be certain they're telling the truth about their steroid use, or else they could be subjecting themselves to the same kinds of much more serious perjury charges facing Barry Bonds. "What your going to see is a huge public relations war," says Shapiro. "High-profile agents, publicists issuing denials, saying everything was hearsay, whatever." Players named by Radomski can certainly try to attack his credibility he's working with the Feds in plea deal, and players could argue he has an incentive to make stuff up.
Where do we go from here?
Despite what Mitchell said, the report offers no real closure to the steroid era. "There are really more unknowns than knowns," says former Los Angeles Dodgers general manager Fred Claire. Who did they miss? Who's breathing a bit easier today? This report was based largely on two sources, McNamee and Radomski, involved in a single steroid distribution ring, which accounts for the large concentration of players in just a few organizations. It's safe to assume that the steroids problem was much, much more widespread than shown in this report. Mitchell himself admits his document is not comprehensive, and certain suspected users, like Sammy Sosa and Mark McGwire, were notably absent from the report. Further government probes may unveil more names, but some players will undoubtedly escape without being publicly identified. And until baseball finds a reliable urine test for HGH, you'll never know who is still using.
The great irony is that while Bud Selig digs into baseball's past to save a little face for his legacy, the fans have largely moved on. Baseball set yet another attendance record this year, and revenues approached a record $6 billion, putting MLB on financial par with the NFL. Can you name one person you know who stopped watching games, who refused to share a moment at the ballpark with a family member, because some players used steroids? Or was rumored to be using steroids? Or still might be using steroids? Now that more names are out there, the risk of a backlash may have increased, but here's my prediction: it's not going to happen.