In 2007, Senator George Mitchell published his 409-page “Report to the Commissioner of Baseball of an Independent Investigation into the Illegal use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball.” After a lengthy 21-month investigation, the “Mitchell Report” detailed his findings about the use of illegal drugs in baseball, and offered conclusions of what should have been done in the past, and suggestions about what could be done in the future to mitigate the problem.
However, Senator Mitchell's investigation was not without its critics. Some accused him of political grandstanding for subpoenaing high-profile professional athletes in front of congress, while others asserted that there was a conflict of interest due to his stake in the Boston Red Sox (a team not named in the report), and still others claimed that his findings were not valid due to his lack cooperative and willing sources cited in his investigation. Additionally, other members of congress involved in the investigation, including Henry Waxman of California’s 30th district and Tom Davis, the ranking Republican from Virginia’s 11th district, who were at the forefront of calls for reform in baseball through their hearings in the House Committee on Oversight and Government Reform were accused of having ulterior motives for their involvement. Ultimately, these individual lawmakers were seen to be using the steroid issue to advance their personal agendas by engaging in political posturing for reelection purposes. The stated goal of their congressional intervention was to shed light on a highly politicized issue, baseball’s “Steroid Era” that extended from the late 1980’s through the early 2000’s.
Following the players strike in 1994, Major League Baseball suffered greatly in both revenue dollars and popularity. Because of the struggles of professional baseball, many were willing to turn a blind eye towards the surging offensive numbers being put up by many players, later whom it would be confirmed had taken performance enhancing drugs (PEDs). Fans, owners, league officials, and players alike benefitted from the increased production of many of the League’s power-hitting stars such as Mark McGwire, Sammy Sosa, Rafael Palmiero, and Jose Canseco.
However, this period of prosperity stemming from questionable behavior would not last. Creeping suspicions about performance enhancers in baseball began to be confirmed when Canseco published his tell-all book “Juiced: Wild Times, Rampant 'Roids, Smash Hits & How Baseball Got Big” in 2005. In the book, he detailed his own steroid abuse, as well as similarly illicit actions of many of the game’s biggest stars. Though many of the accused players attempted to paint Canseco as a liar and a profligate who was attempting to tarnish the reputations of his peers for personal gain, public opinion began to turn distrustful of America’s pastime.
In March of 2004 Senator John McCain of Arizona held a hearing, in which he sought to delve deeper into steroid abuse in sports, using the opportunity to reprimand Major League Baseball’s lack of a concrete drug-testing policy. He warned that without a legitimate way to prevent substance abuse in baseball, that the league ran the risk of “[becoming] a fraud.” Senator McCain threatened baseball leadership officials, calling out League Commissioner Alan “Bud” Selig and Players’ Union chief Donald Fehr, and threatening legislative action if the league did not boost it’s drug-testing standards. As he put it, “I don't understand why you don't have a policy as strong as the NFL." Despite the reprimand in a public forum, the league took no substantive action, and no legislation was passed by congress.[1]
The issue of PEDs was now out from the shadows, public attention however had now shifted to a desire for truth, and many called upon congress to act. Major League Baseball had a special anti- trust exemption with congress that gave them legal grounds to launch an investigation. Any business, organization, or corporation that operates across state borders, participating in interstate commerce, is subject to antitrust legislation. Any attempt to control trade and to monopolize may be considered illegal by federal circuit courts under the Sherman (1890) and Clayton (1914) antitrust acts.[2] However, baseball been exempt from these antitrust laws since 1922, when the Supreme Court ruled that even though games were scheduled across state lines, those games were intrastate events since the travel from one state to another was "not the essential thing," according to Justice Oliver Wendell Holmes who wrote in the decision of Federal Baseball Club of Baltimore, Inc. v. National Baseball Club. At the time, the Baltimore baseball club, a member of the Federal League in 1914-1915, had sued the American and National Leagues, alleging the Federal League’s difficulty to sign players was due to antitrust violations.[3]
Hearings were called to investigate the use of performance enhancers in baseball by the House Committee on Oversight and Government Reform, which serves to exercise oversight over the federal government, working to investigate and expose waste, fraud, and abuse. The committee was comprised of seven subcommittees, including Federal Workforce, U.S. Postal Service and Labor Policy; Technology, Information Policy, Intergovernmental Relations and Procurement Reform; TARP, Financial services and Bailouts of Public and Private Programs; Government Organization, Efficiency, and Financial Management; Health Care, District of Columbia, Census, and the National Archives; National Security, Homeland Defense, and Foreign Operations; and Regulatory Affairs, Stimulus Oversight, and Government Spending. The Committee’s government-wide oversight jurisdiction made it one of the most prominent committees in the House, as well as the only committee in which the chairman has the authority to issue subpoenas without a committee vote.[4] Oversight and Government Reform had also been involved in several high profile and headline-grabbing investigations, including probes of Enron, Halliburton and the tobacco and chemical industries. Committee staff members asserted that they were not asking for individual steroid tests, had checked with the Justice Department to ensure they would not hurt criminal investigations, and were given clear authority to investigate business and health issues.[5]
With the announcement of the pending investigation, questions arose as to whether the Committee was justified in an inquiry of the MLB. When the Oversight and Government Reform Committee was established in 1927, it was given the jurisdiction to investigate “the operations of Government activities at all levels with a view to determining their economy and efficiency,” and had since expanded to serve as “as Congress’ chief investigative and oversight committee, and is granted broad jurisdiction because of the importance of effective, centralized oversight. Because it authorizes on a few agencies and programs, it is able to review government agencies and programs with an unbiased eye." Despite assertions of wide-ranging authority, the sanctioned role of the Government Reform Committee remains the investigation and reform of the operations of the government itself. Many believed that the use of steroids by professional baseball players did not fall under the scope of their authority, and therefore the committee lacked sufficient jurisdiction to call hearings to investigate.[6]
However, due to the specified description of serving as the “principal investigative committee of the House,” the committee had the authority to conduct hearings on any subject falling under the jurisdiction of Congress. Potential violation of the Federally Controlled Substances Act, which regulates the use of performance enhancing drugs, including steroids provided an adequate rationale for congressional investigation. Additionally, baseball’s anti-trust exemption, though it had nothing to do with steroid use by players, did place the affairs of Major League Baseball under the jurisdiction of Congress.[7]
The hearings took place in Washington, DC on March 16, 2005, and lasted for over 11 hours. The House Committee on Oversight and Government Reform subpoenaed a number of witnesses, including the parents of a high school baseball player who committed suicide after abusing steroids. In addition, several prominent professional baseball players and executives were present for the proceedings. Suspected PED users including Mark McGwire, Sammy Sosa, Rafael Palmiero, Jose Canseco, and Curt Schilling were brought in to testify, as well as Bud Selig and Donald Fehr were present because of their management of the league and the players, as well as their outspoken views against steroid use. The committee was chaired by Representative Tom Davis (R-VA), and Henry A. Waxman (D-CA) was the ranking minority representative. In his opening statement, Waxman stated that the purpose of the proceedings was “not to go after any individual players or to put them in legal jeopardy, [but rather] to get the facts. You can't have a hearing about baseball without the players being involved.''[8]
''Not only don't they want to do an investigation, but they don't want anyone else to do an investigation,'' Waxman said in an interview. ''I think that's irresponsible.'' Davis added in his opening statement "We're not interested in embarrassing anyone or ruining careers or grandstanding. This is not a witch-hunt… Today's hearing will not be the end of our inquiry. Far from it. Nor will Major League Baseball be our sole or even primary focus. We're in the first inning of what could be an extra inning ball game…there's a cloud over the game that I love."[9] They stated their belief that baseball had failed to properly police and investigate themselves, so congress would have to do the job for them.
“We’re not interested in embarrassing anyone or ruining careers or grandstanding. This is not a witch-hunt”
Waxman was a long-serving Congressman from Los Angeles, representing California’s 30th district. He was first elected to the California Assembly in 1968, and was reelected twice before running for Congress in 1974. Before his involvement in politics, Waxman was an attorney, having received both his undergraduate, and graduate degrees from UCLA.[10]
Davis represented Virginia’s 11th district, having been elected in 1995. Like Waxman, he had his law degree but previously served as a community activist, as chairman of the Fairfax County Board of Supervisors, president of the Washington Metropolitan Council of Governments, and a board member of the Annandale Chamber of Commerce.[11]
One of the central focuses of the hearings was Major League Baseball’s drug testing program, which at the time consisted of a list of banned substances, but no concrete testing mechanism. Several of the players, such as Curt Schilling offered perfunctory defenses of the program, though admitting it was “not perfect… [there is] no such thing as a perfect testing program” but that it was a “substantial step in the right direction.”[12]
Another issue addressed was the role that congress played in “interfering” with Major League Baseball. Committee members said baseball's policy was fraught with issues, threatened to mandate tougher testing if the league was unable to self-police by coming up with them on their own. Throughout the hearing, the panel warned of congressional action in order to bring the sport's testing program closer in line to the Olympic standard, which included regular PED checks, and swift, tough punishments to offenders.[13] The government had seized test samples of a number of players who had agreed to submit under the promise of anonymity, and therefore had the leverage to identify the players publicly. The lawyer for baseball, Stan Brand, accused the committee of ''prurient interest'' in seeking to obtain the names of those players who may have used steroids, and said the hearing could invade privacy, interfere with collective bargaining and jeopardize an ongoing criminal case involving the Bay Area Laboratory Co-Operative.[14] Brand said the hearing would interfere with collective bargaining over steroid testing, violate First Amendment and privacy rights over steroid test results that baseball collected with assurances of confidentiality.
The players, represented by Donald Fehr, wanted protection from Congress releasing the list of names that had tested positive for banned substances. Selig, Fehr and the other baseball officials claimed that congress did not have the right to interfere with the collective bargaining agreement of a private industry between the players and owners, that mandating a policy to baseball would be a violation of their 4th Amendment rights of unreasonable search and seizure, and it would be legislating against the players on a different standard than other normal citizens.[15]
“I’m not here to talk about the past, I’m here to talk about the positive, and not the negative about this issue.”
The players who were invited to deliver statements left lawmakers frustrated as they downplayed the role of steroids in baseball. Several proclaimed their own innocence, and at times ignorance. McGwire was questioned frequently about his suspected abuses, but repeatedly dodged questions, stating that he was “not here to talk about the past, I’m here to talk about the positive, and not the negative about this issue.”[16] He added, "I will use whatever influence and popularity I have… to discourage young athletes from taking any drug that is not recommended by a doctor. What I will not do, however, is participate in naming names and implicating my friends and teammates. . . . Nor do I intend to dignify Mr. Canseco's book. It should be enough to consider the source …”[17] Additionally, Palmiero began his statements by saying, "Let me start by telling you this," looking directly at Davis and pointing at the committee chairman with his index finger. "I have never used steroids, period."[18] His statement was one that he would soon come to regret, as shortly after the hearing he tested positive for performance enhancers under newly reformed testing policies.
Though the issue of mandatory drug testing was central to the proceedings, baseball officials attempted to deflect the blame back towards Congress. Robert Manfred, Major League Baseball’s executive vice president for labor relations, said that what Congress really needed to do moving forward is regulate legal supplements such as androstenedione before they land in the hands of young people. In doing this, the tried to shift towards a public health concerns of the issue, and divert the attention away from baseball's culpability.[19]
By the end of the hearing, the lawmakers remained unconvinced by the representatives of baseball's arguments. "I have not been reassured one bit by the testimony I have heard today… The testing program "has so many loopholes in this, it is just unbelievable" said Rep. Stephen F. Lynch (D-MA.) Also unmoved by the proceedings was Senator Jim Bunning (R-KY), a Hall of Fame baseball pitcher in the 1950s and ‘60s, who stated his displeasure at the state of events in baseball, "When I played with Henry Aaron, Willie Mays and Ted Williams, they didn't put on 40 pounds… and they didn't hit more home runs in their late thirties as they did in their late twenties. What's happening in baseball is not natural, and it's not right."[20]
The hearings themselves did not contribute significant new information to the public record, and lawmakers became very frustrated with the non-answers the players gave them. Congresswoman Linda Sanchez of California’s 39th district claimed that the players were taking “hear no evil, see no evil, don’t know about steroids” approach, and though she, like many others in attendance, admitted to being a huge baseball fan, she became exasperated at what she perceived to be a lack of candor on the subject.[21] Chris Shays of Connecticut’s 4th district also expressed disappointment and disdain towards Donald Fehr, declaring that the new steroid testing standard was a “five times and you’re out policy.” and Fehr’s response that they believed in the concept of progressive, discipline-ingrained labor law.[22]
The hearing induced a widespread media frenzy, and much of the attention was extremely negative towards both lawmakers and Major League Baseball. Congress was seen as wasting their time and resources, actively ineffectively and overzealously. The baseball players and officials were also seen as not taking the issue seriously enough. These hearings served as a primary impetus for the Mitchell Investigation.[23]
Commissioner Bud Selig tapped former Senator George Mitchell to conduct a full investigation into the use of performance enhancing drugs in 2007. Mitchell, who was once considered to be a candidate for the commissioner of Major League Baseball position, hailed from Maine and served in the senate fifteen years, including six years as the senate majority leader until 1995.[24] Mitchell's appointment was seen as a potential conflict of interest, as he was a front-office director of the Boston Red Sox. Though he acknowledged that his “tight relationship with Major League Baseball left him open to criticism,” he responded to concerns by saying that his investigation had “no evidence of bias… of special treatment.”[25] Mitchell’s 409-page report described a game in which there was rampant use of performance enhancing substances, and that the baseball community had willfully turned a blind eye to the abuses. He cited a “code of silence” amongst the players that protected steroid users, a lack of inquiry from managers and team executives, and he laid the blame for the overall culture of PED use on both Commissioner Selig and union chief Fehr, as well as team trainers and clubhouse attendants.[26]
The report described how for years, teams were negligent in reporting possible performance enhancement violations to the commissioner’s office, and allowed the drug culture to prosper throughout the sport. Additionally, Mitchell claimed that the steroid era was one of the worst scandals in baseball history and called the use of steroids “cheating of the worst sort.”[27] Mitchell’s Report called for baseball to make a number of changes to try to mitigate the pernicious influence of PEDs in the sport. He urged Selig to implement a Department of Investigations to respond to allegations of illegal use of performance-enhancing drugs, and to implement “year-round, unannounced” drug testing by an independent body. His recommendations added that the program ought to be "transparent to the public" but should respect "the legitimate privacy and due process rights of the players." He urged that players be educated about “the dangers of performance-enhancing substances be combined with education on how to achieve the same results through proper training, nutrition and supplements that are legal and safe."[28]
“If there are problems, I wanted them revealed. [Mitchell’s] report is a call to action, and I will act.”
Despite the magnitude and scale of the report, Mitchell was criticized because much of the substance of his findings was considered toothless. Mitchell recommended that there be no disciplinary action against any of the 89 current and former players cited by name in his findings, but that "The commissioner should give the players and everyone else the chance to make a fresh start… except where the conduct is so serious that he must act to protect the integrity of the game."[29] Due to the lack of financial resources and willing informants, the report revealed little that was not already known. Up to three-fourths of the names in the report came from a single source, with the rest coming from findings in BALCO case and the Albany County district attorney’s investigation into Florida pharmacies and clinics with others from baseball’s list of suspended players.[30] Much like the 2005 hearings, the most meaningful impact of the Mitchell report was as a means to apply pressure on Major League Baseball to implement a more stringent testing and punishment system, and rid to attempt to deflect negative public perceptions from the game.[31] Despite the criticisms of the report, baseball officials took the recommendations seriously as Selig said “His report is a call to action, and I will act."[32]
Both Tom Davis and Henry Waxman took the release of the report as opportunity to regain the political spotlight as they had during the 2005 hearings. They released a joint statement saying, "This is a sad day for Major League Baseball, but a good day for integrity in sports. It's an important step towards the goal of eliminating the use of performance-enhancing substances.” Other lawmakers piggybacked on their condemnation of the MLB's previous inaction. Florida Republican Cliff Stearns from the 6th district, who had also been involved in the 2005 hearings called on Selig to resign, citing, a lack of leadership and oversight in MLB enabled these abuses to continue, asserting "After 15 years of slow action, a new commissioner is needed to guide the league out of this era of drug abuse." Senator Bunning added that, “I believe that those players who tried to gain an unfair advantage by using these substances should have their records stripped."[33]
Representative Waxman announced that he would hold another hearing on the health effects of performance enhancing drugs entitled “Myths and Facts about Human Growth Hormone, B12, and Other Substances”, capitalizing on the focus the issue had gained in the national spotlight. His hearing was to be held just one day before a high profile hearing on steroid use in baseball featuring former New York Yankee pitcher Roger Clemens and other current and former players.[34] Waxman's hearing, which was much lower key than those held in 2005, benefited from the attention being given to the issue in the press. He saw it as “an opportunity to provide essential and accurate information, not just to professional athletes, but to high school kids, senior citizens, baby boomers turning 60, and everyone between.” But he also made sure to highlight his role in the ongoing steroid saga, saying “When we began our investigation into steroids in baseball three years ago, the Committee’s primary focus was the health of teenagers who emulate their sports heroes. That remains my focus today. And that is why this hearing is so important.”[35]
For both Davis and Waxman, the steroid issue provided a platform to improve their name recognition, and position themselves as public advocates for reelection. Waxman’s district was traditionally Democratic, and overwhelmingly urban (97.5%.) In 2004 he had defeated his Republican challenger, Victor Elizadle by a margin of 71%-29%, and in 2006, he won reelection again over David N. Jones by the same margin.[36] Waxman exerted issue ownership over the topic of steroids by positioning himself at the center of the hearings. He took advantage of the press coverage on the topic, by to positioning himself as a staunch defender of the integrity of the game and a champion for public health concerns.[37]
“Everyone involved in baseball over the past two decades — commissioners, club officials, the players’ association and players — shares to some extent the responsibility for the Steroids Era.”
Davis, who served as the committee chairman in 2005, also used the debate to further his political career as well. He used the PED discussion as a central point in his 2006 reelection bid, saying "There's a cloud over baseball, and perhaps a public discussion of the issues, with witnesses testifying under oath, can provide a glimpse of sunlight."[38] Additionally, Davis used the baseball issue to play to his constituents. At the time, Northern Virginia was trying to attract a Major League Baseball franchise to the area.[39] Davis won his 2006 reelection with 55% of the vote, though he chose not to run for reelection in 2008. However, he is among the potential Republicans candidates for Senate in 2012.
Ultimately several factors contributed to Congress’ involvement in the steroid issue in baseball. The federal government’s anti-trust exemption, which is largely unique to baseball, provides a special relationship between Congress and the sport. By agreeing to the exemption, Congress has the freedom to investigate baseball when deemed necessary, and can serve as a partner in implementing changes to the game. Additionally, the steroid issue can also be seen as a significant public health concern, as many of the drugs that the players were using were illegal without a prescription, and fall under federal laws on controlled substances. Congress saw the potential dangers in not only having professional athletes abusing these drugs for personal gain, but the influence they have over amateur athletes and children as well. By shining a light on baseball, and investigating the issues in a very public manner, lawmakers sought to stem the tide of performance enhancing drug abuse by all citizens.
One of the primary reasons that the steroid issue received so much publicity was the role that baseball plays in American culture. As “America’s Pastime” baseball is deeply ingrained into the nation’s cultural ethos, and across generations many people have a vested interest in maintaining a perception character and integrity of the game. By positioning themselves at the forefront of the issue, Waxman, Davis, and other lawmakers marketed themselves as caretakers of that Pastime that holds prominent cultural significance. These politicians addressed the issues to promote change and raise public awareness, however much of the results from the congressional end were largely cosmetic.[40] Throughout the proceedings, it became clear that their motivations were very much about public perception as they addressed very significant, and legitimate issues. Statements throughout the process illustrated that it the emotions that baseball evokes were inexorably linked to the issues congress sought to address. However, by championing subject from a prominent pulpit, these lawmakers advanced their personal and political goals with their constituents, while tackling a very public issue.
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Wojciechowski, Gene. "Mitchell Report Has Flaws, but MLB, Players Need to Pay Attention." ESPN.com. 13 Dec. 2007. Web. 4 Apr. 2011. <http://sports.espn.go.com/espn/columns/story?columnist=wojciechowski_gene>.
End Notes
[1] Dan Jung, Congressional Hearing on Steroids in Baseball. (Washington: Post, 2005).
[2] Darren Rovell. Baseball's Antitrust Exemption. (ESPN.com, 2001).
[3] Rovell, Darren
[4] Jung, Dan
[5] Duff Wilson. Congress and Baseball Begin Battle Over Steroids. (New York: Times, 2005).
[6] Joel Roberts. Sluggers Deny Widespread Doping. (CBS News, 2005).
[7] Jim Schmaltz. Panic Room: the Baseball-steroid Issue Reaches the Senate, and Legal Supplements Get Smeared in the Process. (Flex Magazines, 2002).
[8] Philip Shenon. Lawmakers Say Players Must Testify. (New York: Times, 2005).
[9] United States. Cong. House. Restoring faith in America’s Pastime: Hearing Before the Committee on Government Reform, House of Representatives, One Hundred Ninth Congress, First Session, March 17, 2005. (GPO Access, 2005.)
[10] "Henry Arnold Waxman (D) - Elections 2004." (Washingtonpost.com, 2004).
[11] "Thomas M. Davis (R) - Elections 2004." (Washingtonpost.com, 2004).
[12] Shenon, Philip.
[13] Dave Sheinin. Baseball Has A Day of Reckoning In Congress. (Washington: Post, 2005.
[14] United States. Cong. House. Restoring faith in America’s Pastime: Hearing Before the Committee on Government Reform.
[15] Neil Conan. Hearings Probe Steroid Use in Pro Baseball. Talk of the Nation. (NPR Radio, 2005).
[16] Tom Goldman. Hill Panel Grills Baseball Icons About Steroids. Morning Edition. (NPR Radio, 2005).
[17] Thomas Boswell. Players of Stature, Feats of Clay. (Washington: Post, 2005.)
[18] Report on Investigation into Rafael Palmeiro's March 17, 2005 Testimony before the Committee on Government Reform. [Washington, D.C.]: Govt. Reform Committee, 2005. Print.
[19] Schmaltz, Jim
[20] Dave Sheinin
[21] Goldman, Tom.
[22] Goldman, Tom
[23] Roberts, Joel
[24] Sally Jenkins. Taking Aim At Soros Is Hardly Politic. (Washington: Post, 2005)
[25] Greg Johnson. Mitchell Cites Unbiased Past. (Los Angeles: Times, 2007).
[26] Bob Nightingale. Mitchell Report: Steroid Woes a 'Collective Failure'" (USA Today, 2007
[27] Nightingale, Bob
[28] George J. Mitchell "Report to the Commissioner of Baseball of an Independent Investigation into the Illegal use of Steroids and other Performance Enhancing Substances by Players in Major League Baseball.” (Office of the Commissioner of Baseball, 2007).
[29] Gene Wojciechowski. Mitchell Report Has Flaws, but MLB, Players Need to Pay Attention. (ESPN.com, 2007).
[30] Murray Chass. Mitchell Report Revealed Little Original Work. (New York Times, 2007).
[31] Schmaltz, Jim
[32] Anthony DiComo. Selig: Report is a 'call to Action'" (Major League Baseball, 2007).
[33] "Congress Weighs in on Mitchell Report.” (USA Today, 2007).
[34] Daniel W. Reilly. Waxman Raises the Stakes in MLB Steroids Probe. (Politico:2008).
[35] United States. Cong. House. Committee on Oversight and Government Reform. Opening Statement of Rep. Henry A. Waxman Committee on Oversight and Government Reform Hearing on Myths and Facts about Human Growth Hormone, B12 and Other Substances. 110th Cong., 2nd sess.
[36] "Henry Arnold Waxman (D) - Elections 2004."
[37] Murray Chass. Baseball Says Cooperate to Avoid Steroids Bogeyman. (New York: Times, 2007).
[38] Jung, Dan
[39] Mark Asher. Finalists in the Ballpark; Virginia, D.C. Groups Seek Stadium Design and Site. (Washington: Post, 2002).
[40] Conan, Neil