Steroids, Baseball, Due Process and Skepticism

With the infamous Mitchell Report leaked yesterday and released today, I have a few comments to make on the whole matter of steroid use in baseball and how it has been handled. Keep in mind that I did not read the entire 409 page report.

You’d have to be a complete moron to deny the fact of steroid use in baseball. It’s obvious that its been going on because random testing has caught a few people here and there. You’d have to be an equally complete moron to think that no one on the list of players contained in the Mitchell Report used steroids. However, I also think that you have to be pretty short-sighted (I won’t say moronic here, although it’s really what I mean) to take this report and all of the media spin behind it at face value. A modicum of skepticism is required.

I have ideological problems with the Mitchell Report and the whole inquiry into steroid use in baseball. These ideological problems don’t deny that it’s going on. They focus on other aspects of the problem.

1. Until a few years ago, there were no rules or guidelines for the use of performance enhancing drugs (like steroids or HGH) in baseball.

2. The players were offered no due process in the investigation.

3. A person is innocent until proved guilty.

4. Innocent players who find their names on the list have little recourse.

5. A handful of cheaters are giving the vast majority of players a bad name.

The Mitchell Report starts out by saying

For more than a decade there has been widespread illegal use of anabolic steroids and other performance enhancing substances by players in Major League Baseball, in violation of Federal law and baseball policy.

If Federal law was violated, the players should be indicted on charges and made to stand trial. Standing trial offers them the due process that is the right of anyone who breaks the law in this country. One has to ask why no Federal charges have been filed? The simplest answer is that there is not enough evidence to get an indictment from a grand jury. (Keep in mind that Barry Bonds was not indicted for steroid use, but rather for perjury.) As for violations of baseball policy, most of the players mentioned are protected by the fact that there was no policy at the time of any alleged violation.

If the “evidence” contained in the report is not enough to get a Federal indictment, one must ask just how good the evidence is. The media seems to be focusing primarily on checks written to various people and the claims made by these people as to what the money was for. But this investigation was not a trial. Witnesses could say just about whatever they wanted. With their names appearing in the report, one has to ask what kind of publicity some of these people get. Maybe it’s time for them to write their book, now that their name is being bandied about.

The fact that this investigation was not a trial denied every player mentioned from due process. The players did not have a chance to face and challenge their accusers. They did not have a chance to do any kind of discovery. They did not have a chance to a hearing before a jury of their peers. At the end of the investigation, we are essentially left with nothing more than hearsay, a “he said, she said” situation which carries no more weight than two kids arguing in a playground about who pushed who first.

The mention of a players name in the report is being treated by media and commentators alike as proof of guilt but it is far from it. Again, this was not a trial. There was no judge presiding, there was no jury. A report by an “independent committee” is not proof of guilt. In the first place, without charges of any kind, there’s nothing to be guilty of. Secondly, a claims made in the report were not evaluated by a jury. The duty of a jury is to find the truth. That step was never taken. It amazes me how many people are jumping on this report without a single question as to the value or validity of the investigation. Innocent until proved guilty is as American as baseball. How quickly we forget.

The whole point of the meticulous nature of trials by jury is to take great pains to ensure that innocent people are not convicted of crimes they did not commit. Our system errors on the side of innocence. However, in the court of public opinion, those innocent players whose names are mentioned in the report (and I guarantee, some of them really are innocent–a wrong place at the wrong time kind of thing) have no real recourse, save one option which I will get to in a moment. They did not have the opportunity to present their side of the story in a fair way, where their statements could be evaluated by a jury of their peers. In fact, most of them refused to speak to the committee, which, given the circumstances of the investigation, was probably wise. The media has called this out a few times, but it’s nothing more than exercising their Fifth Amendment rights against self-incrimination. It’s a smart move considering there was no trial to protect their rights.

I mentioned one option, one path of recourse that players who believe they are innocent can take. I think they should file defamation lawsuits against the committee. It’s not about the money. A defamation lawsuit makes this whole thing a legal matter. The committee members would have to prove in a court of law that the statements made in the report were true. This raises the standards and burden of proof to the level we are used to in our civil justice system. If the innocent players on the list took this step, I think they’d have a fair chance of getting their names cleared and receiving an apology from the committee.

Who’s at fault in all of this? First and foremost, the players who cheated are at fault. They are certainly out there, I’m not denying that. What I am denying is that the so-called evidence provided in the Mitchell Report is proof. In any event, they know who they are and they should be ashamed of themselves for how their actions have tainted the sport.

The player’s association is also at fault for not agreeing to stricter testing standards. Managers and couches are at fault for turning a blind eye. Owners are at fault for the same. And the fans are at fault for accepting all of this in the first place. Nobody wins.

I imagine that over the next several months and years, it will come out just which players really did cheat and which ones found themselves on the list because someone named names. It saddens me that we don’t question the names more critically, or question the motives of those who named names. As someone once said, “There’s no such thing as the present or future, only the past, repeating itself over and over again, today.”

McCarthy would be proud, and I don’t mean the Hall of Fame baseball manager.


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