“I think he misremembers,” claimed Roger Clemens on Feb. 13 in front of the House Committee on Oversight and Government Reform when asked why former teammate Andy Pettitte corroborated recent allegations of Clemens’ use of performance-enhancing drugs. This denial encapsulated a hearing that was short on substance, yet rich in theatrics. The Clemens hearing was not Congress’ first investigation of PED use in Major League Baseball, and it will likely not be the last. Regardless of whether this recent upswing in federal efforts to police the affairs of American professional sports is a consequence of the league’s economic importance, baseball’s cultural responsibilities to the American people, or mere political grandstanding, it is doubtful that legislators can effect meaningful reform if their current approach persists.

Athletes Behaving Badly
In past cases of criminal transgressions committed in baseball, the league took it upon itself to punish the guilty parties in lieu of government intervention. After eight members of the Chicago White Sox reportedly conspired with gamblers to fix the 1919 World Series, Commissioner Kennesaw Mountain Landis banned them from baseball for life despite their acquittal before a grand jury. Seventy years later, all-time hits leader Pete Rose was accused of betting on games while managing the Cincinnati Reds. Under a settlement with Commissioner Bart Giamatti, Rose accepted permanent banishment from the game in order to avoid a federal hearing.

Baseball’s response to the PED crisis has largely been implemented in the aftermath of federal involvement. In 2003, various federal agencies raided the Bay Area Laboratory Co-operative facilities and found evidence linking several baseball stars to PEDs. In 2005, the House Oversight Committee investigated separate allegations of PED use published by former slugger Jose Canseco. Only after the former case did baseball begin to test and punish players more stringently, and only after the explosive 2005 hearings did MLB commission former Senator George Mitchell (D-Maine) to initiate an independent investigation on its behalf. As Lance Williams, reporter for the San Francisco Chronicle and co-author of the BALCO exposé Game of Shadows, told the HPR, “Without the pressure from Congress and without law enforcement interest there still wouldn’t even be steroid testing in baseball.” Yet after eliciting significant results from MLB, why does federal intervention persist?

Money Talks
Economic concerns underlie one possible answer to this question, as the four major sports leagues are immune from many federal antitrust laws. Baseball’s antitrust exemption provides the league final say over both national television deals and the location of franchises. While the specter of revoking the exemption has sometimes secured baseball’s cooperation in federal proceedings, it nonetheless is perceived by many to be an empty threat. As Howard Wasserman, Professor of Law at Florida International University, revealed to the HPR that “the reality is that leagues need the ability to negotiate television deals if they are going to be successful.” Former MLB Commissioner Fay Vincent pointed out to the HPR that removing the antitrust exemption would leave the free market in control of franchise locations and thus render teams—especially at the minor league level—vulnerable to nearby, upstart competitors able to undercut their profits. The government may use the antitrust exemption as grounds for its involvement in the PED issue, but the prohibitive economic costs of making its threats a reality render it merely a point of entry.

Protecting a Culture of Fair Play
It is conceivable that the government is working to protect fans and restore their trust in the public integrity of baseball, an important cultural touchstone. As Williams reminded the HPR, “We care deeply about our amusements in the United States.” Baseball’s record-breaking attendance figures and revenues, even in the wake of the PED crisis, seem to refute concerns about waning public trust. Yet ESPN’s Mark Fainaru-Wada, Williams’ co-author for Game of Shadows, warned in an interview with the HPR that baseball fans’ dedication could be weakened if the rest of the country perceives the sport as a drug-fueled farce: “The success of the game cannot be measured strictly on attendance records and revenues.”

Another aspect of baseball’s cultural responsibility comes from the role-modeling effects of professional athletes’ behavior upon American youth. PEDs not only undermine fair competition but are also illegal and dangerous. The proliferation of these substances at the professional level could foster the perception among high school and college athletes that they must use PEDs to reach elite status or to compete with peers. Vincent explained, “You can either get rid of them or permit everyone to take them…and you can’t let everyone take them because they’re dangerous.” With young people’s safety at stake, the government could conceivably justify its intervention into MLB practices in the context of public health.

Politics as Usual?
Some critics of Congress’ approach attribute its involvement to political showmanship, pointing out that it has abdicated its role in guarding public health in favor of engaging in high-profile theatrics. Vincent expressed his disappointment with the February 13 hearings, which did not address the drug explosion among young athletes and instead focused on the flashier but less substantive question of Roger Clemens’ guilt, claiming that “Congress does not need to referee whether or not he is lying.” Other skeptical observers of the Feb. 13 hearings questioned not only their subject but also legislators’ conduct, noting that Democrats were harshest on Clemens, while Republicans at times seemed to bully his accuser and former trainer, Brian McNamee. If one accepts this cynical view, Congress undermines its ability to meaningfully resolve baseball’s PED crisis by displaying petty partisanship in the face of such a serious and complex issue.

Not “If?” but “How?”
Indeed, the real question brought about by the PED crisis in baseball is not whether government should be involved in regulating sports, but the most proper and effective way to do so. The government will inevitably feel obligated to respond to a violation of one of its laws such as the non-medical use and distribution of steroids and similar drugs. Government intervention has already succeeded in shaming high-profile PED users and suppliers, as well as securing some important changes in baseball’s rules and their enforcement. This progress most likely could not have been attained by MLB leadership alone. Yet with these changes now in place, Congress would continue limiting its interest in PED use to its effect on professional baseball alone at the peril of ignoring the far more important task of prevention. “Prevention” obligates Congress not only to stop the dissemination of these illegal and harmful substances among the general populace, but also to fight the social pressures that entice young athletes to use them. ]]>