This was my second biggest disappointment in the investigation, the first being the uniform refusal of current players to talk to me. It was not without irony. Since we could not reliably estimate overall use on a basis that did not require the identification of individual players, we had to rely even more on evidence of illegal use by individuals. This ultimately led to the identification and publication of the names of over eighty players for whom we developed credible and compelling evidence of use. Prior to the publication of my report I had many discussions with the leadership of the Players Association, and others, before making the difficult decision to name these players in the report. The Association strongly urged me not to name any players, but after receiving and considering a wide range of advice, I concluded that was not an acceptable course of action. If I had been able to receive reliable estimates of overall use from Heckman’s study, it is possible that I would not have had to name individual players.
On April 27, 2006, I sent identical letters to attorneys representing four current and three former players who had been publicly named in allegations relating to the BALCO investigation, asking for several categories of documents. In compliance with the requirements of the collective bargaining agreement between the clubs and the players, I sent to the Players Association contemporaneous copies of the letters that were sent to the attorneys for the current players. The Players Association insisted on receiving copies of the letters to the former players as well. When I declined to do so the Association sent an email to players and agents advising them that our investigation was not following the rules for dealing with players as outlined in the collective bargaining agreement. That assertion was wrong. Former players are not members of the Association (or of the players bargaining unit), so the Association has no right to be included in communications with those individuals. But the message to current and former players and agents was clear: Don’t cooperate with Senator Mitchell’s investigation.
Over the next few months we sought repeatedly to communicate directly with all active players, within the constraints imposed by the Basic Agreement, to encourage their cooperation with the investigation. I wanted to make to them directly the argument I had made, unsuccessfully, to their representatives at the Players Association: that the majority of players who abide by the rules are the principal victims of the minority of players who cheat. In September 2007, after extensive negotiations with the Association about the terms under which such a communication would be permitted, I received consent to send a memorandum to all active players, but only on the condition that it be accompanied by a memorandum from the Association.
My memorandum was dated September 6, 2007, and was distributed to all current players shortly thereafter. It read, in part:
I have been retained by the Commissioner of Baseball to conduct an independent investigation into the alleged illegal use of performance enhancing substances in Major League Baseball. I have pledged to conduct an investigation and to complete a report that is independent, thorough, and fair. I believe it’s in your interest to help me achieve those objectives.
The illegal use of performance enhancing substances is a serious violation of the rules of Major League Baseball which directly affects the integrity of the game. The principal victims are the majority of players who don’t use such substances.
• • •
The memorandum from the Players Association warned the players about the perils of cooperating with me. It suggested the possibility of criminal prosecution of individual players for the use of such drugs, even though no player has ever been so prosecuted, before or since, even the many who have publicly admitted such use. The memo from the Association had its plainly intended effect: an almost total lack of cooperation by players with the investigation. Of the 1,200 players who received these memoranda, only two spoke to me voluntarily.VI
In our review of public information we learned that several players had expressed their concern about the use of steroids. These outspoken players were “clean” and above suspicion. I asked to meet with all of them; I wanted to get their views directly and to learn more about their careers. As required by the Basic Agreement, I wrote to the Players Association asking to meet with these players. I was deeply disappointed by the response: all but one declined to talk to me. These were, after all, players who had been publicly outspoken against the use of steroids in baseball, and even they refused to talk to me.
The one who did talk with me was Frank Thomas, twice voted the Most Valuable Player in the American League and later inducted into the Baseball Hall of Fame. When I spoke with him he was with the White Sox, so we met in Chicago in October 2007. There were no dramatic revelations; he conditioned his willingness to meet with me on the understanding that he would not identify other players. But he did express his views and he answered my questions. Although he would not name names, he was otherwise direct and forthright. He was clear in his belief that the use of performance-enhancing drugs in baseball was widespread and that it had an adverse effect on him and other players who did not use them. He was proud of his record and of the fact that he had compiled it the “hard way.” To him it was a question of fairness. He didn’t cheat, but he had to compete with players who did. Thomas supported the drug-testing program as a way of curbing the use of performance-enhancing drugs. I had been impressed by his athletic ability before I met him; after our meeting I was even more impressed by his integrity.
Another active player, about whom we received allegations of the purchase of performance-enhancing drugs, requested an interview, which he attended accompanied by his wife and his personal lawyer. During the interview he told me that the Players Association had urged him not to cooperate with me, but after talking with his wife and consulting his personal lawyer he decided to ignore that advice. He admitted that he had obtained performance-enhancing drugs but provided persuasive evidence, which we were able to independently verify, that he had not used them. He was not named in the report as a result.
Shortly after my appointment was announced I placed telephone calls to three men in San Francisco. The first two were Mark Fainaru-Wada and Lance Williams, the journalists who had written the book Game of Shadows that had generated so much publicity and concern about the use of performance-enhancing substances in Major League Baseball. I was disappointed that they refused to talk to me. I had more success with the Office of the U.S. Attorney for the Northern District of California. That office had jurisdiction over the cases that arose from allegations that BALCO had supplied performance-enhancing drugs to numerous MLB players and other professional athletes. Scott Schools, the U.S. attorney, agreed to talk with me. I offered to travel to San Francisco, but he told me that he would be in Boston in the near future and suggested we meet there. A few weeks later, over breakfast at a restaurant overlooking the Boston Common, we had a pleasant and productive discussion. I told him that, having been a U.S. attorney myself, I had at least some idea of the pressure he was under in a case that had generated so much publicity. I assured him that I would not say or do anything that might in any way hinder or jeopardize his investigation. My investigation was private and civil and had to be subordinate to his, which was public and criminal. I pledged that I would honor his requests in that regard. At the same time, I said, our investigations had at least some overlapping objectives and there might be opportunities down the road for cooperation that could enhance both. He agreed to further discussions, and I had a good feeling as we parted.
I immediately made plans to travel to San Francisco to meet with the assistant U.S. attorneys who were handling the BALCO cases. Matt Parrella and Jeff Nedrow are experienced and able federal prosecutors. Our common backgrounds—mine as U.S. attorney for Maine and then as a federal judge, Charlie Scheeler’s as an assistant U.S. attorney in Baltimore—served as a basis for what proved to be the most important meeting of the several hundred we held during our investigation. Parrella and Nedrow appreciated our deference to their investigation and recognized
the existence of some parallel interests. Importantly, they also introduced us to Jeff Novitzky, a federal agent; he and Charlie bonded quickly and, with Parrella, served as the point men in the cooperation that developed. They introduced us to Kirk Radomski and Brian McNamee, both of whom admitted to distributing performance-enhancing drugs to major league players. Without their cooperation and participation, our investigation would have produced far less than it did.
Our meetings with those important witnesses, and the information they provided, are set forth in detail in our final report.12 We also obtained a great deal of information from the more than seven hundred interviews we conducted of persons, almost all of them men, involved in every aspect of professional baseball, from former players to clubhouse attendants and executives at all levels. Much of it was general; some of it was helpful, some unhelpful; and some of it plainly false. Several club officials, former players, and managers had made strong, negative public statements about drug use, but when we talked with them, almost without exception they recanted or modified their statements, claimed they were misquoted, or claimed to forget entirely their prior public statements. Others, some of whom had spent years, even decades in baseball, claimed to have been unaware of any aspect of the subject before their interviews, despite the enormous publicity that had occurred. A few actually said that they had never before heard or read anything about the subject of steroids in baseball and first learned about the issue from our questions!
Radomski and McNamee, by contrast, provided direct, eyewitness testimony and, in some cases, documents (canceled checks, receipts, letters, etc.) to corroborate their testimony. From emails we received in response to our many document requests to the clubs, we were able to verify that some clubs were aware of, or highly suspected, substance use by some of the players that Radomski identified. Several club executives openly discussed use by players they were evaluating (and in some cases went on to sign up for their team).
On the snowy afternoon of December 13, 2007, I released the report of our investigation at a press conference at the Grand Hyatt Hotel in New York. There were hundreds of reporters present, and a bank of dozens of television cameras was arranged in the back of the room. Along with my team, I was joined by Richard McLaren, a law professor and a member of the Court of Arbitration for Sport, and Dr. Gary Green, a professor of medicine at UCLA who studies the use and detection of performance-enhancing substances, both highly regarded experts in their fields.
I concluded that for more than a decade there had been widespread illegal use of anabolic steroids and other performance-enhancing substances by MLB players in violation of federal law and baseball policy. The evidence we uncovered indicated that it was not an isolated problem involving just a few players or a few clubs. Each of the thirty clubs had players who used such substances at some time in their career. Club officials routinely discussed the possibility of substance use when evaluating players. The response by baseball had been slow to develop and was initially ineffective. For decades, citing concerns for the privacy rights of players, the Players Association had opposed mandatory random drug testing of its members for steroids and other substances. But in 2002, under public and congressional pressure, the effort gained momentum after the clubs and the Association adopted a mandatory random drug-testing program. While that program was effective in reducing the detectable use of steroids, the use of human growth hormone had risen because it was not detectable through urine testing.
The report outlined the substantial information we had uncovered regarding the use of steroids and human growth hormone by MLB players. Much of that information came as the result of the cooperation of Radomski, McNamee, and other witnesses, including former players. More information was gained as the result of our other efforts, including interviews of active coaches and club personnel. While I was criticized by the Players Association for naming players who had used illegal substances, I made it clear in the report that I did so only where I had credible and compelling evidence, including in some cases eyewitness testimony or corroborating documents.
While much of the press coverage of the report focused on the players who were identified, my recommendations for reform were the heart of our efforts. I suggested improvements to the joint drug prevention and treatment program that is part of the Basic Agreement between the clubs and the Players Association, including requiring periodic reports of aggregate testing activity, making the joint program more independent, increasing the frequency of testing, and improving the collection process to ensure effective testing. I also recommended that the commissioner more aggressively investigate evidence of use or possession of prohibited substances, especially by establishing a department of investigations that would be charged with this task. Other recommendations were improvements in drug education; random, unannounced testing of clubhouse personnel; and the establishment of a hotline for reporting anonymous tips. The commissioner announced that he would adopt immediately all of my recommendations that were not subject to the collective bargaining process. Later the Commissioner’s Office and the Players Association agreed to changes to the joint drug program that incorporated most of the remaining recommendations.
Looking back years later, the most important recommendation I made may have been the establishment of a department of investigations within the Commissioner’s Office to gather evidence of substance use from sources other than drug tests. That department’s work led to suspensions arising out of the Biogenesis clinic matter, which became public in 2013. Thirteen MLB players were suspended for the use of prohibited substances they received from that Miami clinic. As I’ve noted, one of the most fundamental lessons is that drug testing is not a foolproof detection method: it’s more of an ongoing cat-and-mouse game between the cheaters, their enablers, and those who use science to try to prevent cheating. With this new investigative capacity, MLB has another powerful weapon in its enforcement arsenal.
Some social problems persist, despite laws and other efforts to prevent them. Every society has laws prohibiting crimes, but no one expects an end to crime; it is a serious problem that must be aggressively punished and deterred. So it is with the use of performance-enhancing substances in sports. There will continue to be those in sports who want so badly to gain a competitive edge that they are willing to cheat, and there also will continue to be those who see profit in meeting that demand. As the money offered to premier athletes continues to rise rapidly, the risk-reward ratio skews increasingly to more risk taking. All sports, not just baseball and not just professional, face a serious and continuing challenge. To its credit Major League Baseball, after a halting initial response, has moved vigorously to meet the challenge. For that, Commissioner Selig deserves great credit. Credit also should go to the players and their Association; after decades of resistance and delay, they have come to understand that their interest lies in a strong, effective, and fair program of testing and vigilance to limit the use of performance-enhancing substances to an absolute minimum. I am heartened by the fact that more players than ever are speaking out against steroid use, and I am hopeful that the tide is turning against substance use in baseball and other sports.
Since the day my report on drugs and baseball was released the question I’ve been asked more often than any other is this: “Given what you’ve learned, do you still like baseball?”
In the past few years I have learned a lot of unpleasant facts, but I’m as much a fan now as I ever was. During the season the box scores of the previous evening’s games are the first thing I turn to in the morning paper. It was inevitable that I and most other fans would be saddened and disturbed to learn of the extent of performance-enhancing drug use in baseball. As in business, politics, the arts, and the professions, indeed in virtually every aspect of life, learning that our childhood heroes are fallible humans is disillusioning. As we grow up, we get over our disappointment and we understand this as just another example of the enormous complexity of life. We come to terms with the reality that we al
l are fallibly human. Each of us will, throughout our life, make some mistakes and bad decisions. At the age of ten life seems simple and clear. By the age of forty the contrary realization has long been obvious.
That knowledge frees us to sit in the stands on a warm summer evening, preferably with our children, taking in the sights and sounds of a great spectacle. The contrast of the deep green grass of the outfield and the white lines set on the reddish brown dirt of the infield; the ease and fluidity with which a small group of enormously talented men run and throw and catch a small, hard, white ball; the power and precision of a pitcher throwing a ball ninety-five miles an hour to a predetermined point sixty and a half feet away; the almost superhuman reaction of the batter, who has a fraction of a second to decide whether or not to swing; the electric crack as the ball meets a bat swung quickly and with stunning power; and the sudden roar as forty thousand fans jump as one to their feet.
You stand, cheering and clapping, as does your son. With a big smile on his face he turns, high-fives you, and then gives you a big hug. You hold on, longer than you should, because you know that soon he will be slipping away from you, and a moment like this may never recur. There’s not a word or a thought about drugs. My answer is yes, I still love baseball.
* * *
I. One summer day, while playing baseball, Ron’s life changed. I was pitching and he was catching for our team. A foul tip struck his throwing hand and dislocated his right index finger. Late that night he suffered his first epileptic seizure. We spent so much time together that I was instructed by his parents and his doctor how to respond when he had a seizure in my presence. I loved him so much that I found unbearable the thought that I might have contributed to his condition by throwing the pitch that dislocated his finger. But I was reassured by his father that there was no way of knowing whether there was any relationship between the dislocated finger and the seizure. Advances in medical science enabled Ron to control his epilepsy through a program of drugs created for that purpose. He went on to a successful life in business. Although our paths diverged and we saw less of each other later in life, he remained the best friend anyone could ever have.
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