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THE SHAME OF THE STEROID HUNT
By Matt Welch

Professional baseball’s steroid scandal may have greater costs than a career or two, as investigating bodies run roughshod over labor unions and the Constitution.

Let’s recap. A congressional body called the House Committee on Government Reform—not the House Committee on Getting Past the Fourth and Fifth Amendments, not the House Committee on Urinalysis, but the House Committee on Government Freakin’ Reform—spent 11 hours on national TV last Thursday advocating several dozen illiberal measures that would give the government even more far-reaching power to harass individuals and neuter their labor unions. A microscopic sampling of these ideas:

Federally mandated drug tests for all professional and amateur athletes, down to junior-high-school lacrosse players. Ripping up federal labor laws. Butting into the collective-bargaining process of a single, targeted private industry. Forcing private employers to share their confidential drug tests with the FBI.

The response from the nation’s Fourth Estate? “Congress delivers heat, McGwire takes weak fifth swing”; “McGwire’s image cannot be saved”; “McGwire whiffs on Hall [of Fame] pass.”

In case anyone needed reminding, when sportswriters see someone holding a match to the Constitution, their instinctive reaction is to ask: “Where’s the lighter fluid?”

Mark McGwire—who has never, to my knowledge, held a government job or enforced the nation’s drug laws—had his reputation ruined by being forced to confront questions that suspected coke-sniffer George W. Bush and his non-inhaling predecessor never once had to face under oath. When the retired slugger concluded, reasonably, that answering specifics about his personal intake would put him at risk of endless government investigations, the reaction was as overwhelming as it was predictable.

“It could not have been more indicting,” wrote Los Angeles Times sports columnist Bill Plaschke, “if he had begun picking his teeth with a syringe.” (A week earlier, the constitutionally challenged columnist declared that anyone who refused to testify was “guilty.”)

Plaschke, like all L.A. Times employees (and most American newspaper journalists) is subject to drug tests from his employer. The process he just applauded can now be used to confiscate his own piss, hand it over to the authorities and compel him to testify under oath, possibly without the benefit of legal representation.

Drug tests that baseball players assumed were confidential have ended up in the hands of federal investigators. The Government Reform Committee successfully subpoenaed records of all drug-use-related punishment Major League Baseball has handed out for the past 15 years, even though that, too, was supposed to be between the Player’s Union and management, as agreed upon in collective bargaining. At every step, across several overlapping government investigations and hearings, evidence that was supposed to remain secret—like, say, Barry Bonds’ lawyer-free grand jury testimony at the BALCO trial—has been rushed into the public domain.

This public shaming of high-profile athletes—often enabled through expressly illegal means, such as the grand jury leaks—has been a conscious policy all along, far outstripping any real desire to prosecute criminals, or even get at the truth about steroid use.

The BALCO case got its start when a zealous Bay Area-based Internal Revenue Service investigator and former athlete named Jeff Novitzky became annoyed at the concept of a suspiciously muscular jerk like Barry Bonds breaking the all-time home-run record. “He’s such an asshole to the press,” Novitzky reportedly told an associate. “I’d sure like to prove it.”

Ironically, Novitzky probably never will—at least in a court of law. Despite an investigatory fishing expedition of a grand jury, Bonds so far stands accused of no crime, and has admitted under oath only that he unknowingly and briefly used two substances that might have resembled illegal steroids. But the court of public opinion has already hanged Bonds as well, in part because Novitzky made sure the cameras were rolling when his team burst through the doors of BALCO back in September 2003, and because someone gave the San Francisco Chronicle the sealed court transcript of Bonds’ testimony this past December.

By then, this had long been a national political issue. In January 2004, President Bush, a former minority owner of the Texas Rangers, took time out of his busy State of the Union speech to warn, remarkably, that, “The use of performance-enhancing drugs like steroids in baseball, football, and other sports is dangerous, and it sends the wrong message—that there are shortcuts to accomplishment, and that performance is more important than character.”

I suppose the president is uniquely qualified to lecture us about “shortcuts to accomplishment,” but unfortunately the bully pulpit generates other side effects besides cheap laughs. Republican Sen. John McCain (R-Ariz.) threatened baseball with federal legislation this January, pushing the Player’s Union to take the unprecedented step of ripping up its own collective-bargaining agreement and making the drug-testing regimen much more intrusive and punitive.

But that still wasn’t enough for Los Angeles Democrat Henry Waxman, who decided in late February that the Government Reform Committee—which hadn’t issued a single subpoena in more than a year—needed to arbitrate the factual claims in former player Jose Canseco’s book, Juiced: Wild Times, Rampant ’Roids, Smash Hits, and How Baseball Got Big. Canseco’s ridiculous testimony, notable mostly for directly contradicting most everything he wrote in his book (like, for instance, that steroids are great), yielded one very telling reaction: Committee members didn’t even pretend to care whether he was telling the truth.

“I would have questioned you about credibility because you made some inconsistent statements,” Maryland Democrat Dutch Ruppersberger told the former Bash Brother. “But the more I think about it . . . you put it out there on the table and now we’re dealing with it.”

The same committee members thrashed Boston Red Sox pitcher Curt Schilling for actually coming clean—not about his drug use, but about his use of hyperbole, when telling Sports Illustrated a few years ago that steroids were rampant in baseball. His admission of “exaggerating,” coupled with an unwillingness to immediately agree on the spot to year-round “zero tolerance” drug testing, led to many congressmen saying they were “disappointed” in Schilling’s testimony.

But, like the press, they missed one stone-obvious con that was taking place right under their noses: Major League Baseball management, in the form of its tax-sucking commissioner, Bud Selig, successfully deployed Congress as a million-pound hammer coming down on his side of a labor negotiation. Congressman after congresswoman angrily dismissed all player and union talk of collective bargaining (the process, enshrined by federal labor law, by which the two sides arrive on working contracts), and placed nearly all blame for the “toothless” drug policy squarely on the shoulders of the employees.

It was a virtuoso performance, and may yield fruit sooner than even Selig dreamed: Eternally meddlesome Sen. McCain warned this Sunday that “we ought to seriously consider . . . a law that says all professional sports have a minimum level of performance-enhancing drug testing.” Committee Chairman Tom Davis (R-Va.) suggested the U.S. Anti-Doping Agency handle the urinalysis.

Selig doesn’t give a damn about establishing the precedent of the federal government overseeing the excrement of private citizens, but that doesn’t excuse sports fans. Search and seizure of private property should be a last resort, conducted with probable cause, unless agreed upon privately between union and management. One should not become a criminal suspect by putting on a baseball uniform.

Matt Welch is an associate editor at Reason. His work is archived at mattwelch.com.


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