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Put More Muscle In Baseball Drug Tests—A Commentary by Aaron Zelinsky ’10

The following commentary was published in The Hartford Courant on December 18, 2007.

Put More Muscle In Baseball Drug Tests
By Aaron Zelinsky ’10

As even casual sports fans know, the report issued last week by former Sen. George Mitchell confirmed the widespread expectation that performance enhancing drug use is rampant in Major League Baseball's present era and recent past. However, the report's 419 pages contain few recommendations about baseball's future. These recommendations range from trivially sensible, such as more frequent year-round testing, to hopelessly laughable, such as "prominently display[ed] posters" about steroid prevention. Does Sen. Mitchell truly envision Roger Clemens proclaiming, "I wouldn't have used steroids if only I had seen more prominently displayed posters?"

It is particularly disheartening that none of Mitchell's recommendations address the serious problem that some performance enhancing substances, such as human growth hormone, are difficult to detect, particularly with testing restrictions enforced by the players' union. Even with more frequent testing (and more widespread postering), players will still have a strong incentive to use these undetectable drugs. Otherwise clean players will also be hard pressed to refrain from undetectable substances because of the competitive disadvantage to staying clean.

I propose a three-part solution to this problem. First, an independent lab should store blood and urine samples from all major league players annually and test these samples (using the latest detection techniques) at 10-, 20- and 30-year intervals following each player's retirement. Second, all players should be paid over a 30-year period. Third, if any player's blood tests positive for performance enhancing drugs, that player will forfeit his remaining salary and pension and will be banned from baseball for life. In order to insert such a "bad boy" clause into pensions, Congress will need to exempt Major League Baseball from certain parts of the Employee Retirement Income Security Act, but such exemption should be easy to obtain in the current environment. Baseball already enjoys congressionally recognized exemptions from certain antitrust provisions; ERISA could be similarly adapted.

Drastic times call for drastic measures. If baseball wants to cleanse and rebuild, it must institute changes along these lines.

This proposal has four distinct advantages:

First, all players will be reluctant to take performance enhancing drugs that are currently undetectable. By attaching their earnings to honest performance, every player, from the low-level journeyman to MVP, will stand to lose from taking such drugs. Otherwise clean players will also be less compelled to use undetectable drugs because fewer of their competitors will do so.

Second, by deferring compensation, players will have a vested interest in the long-term health of baseball. Right now, players can take their paychecks and run. They have no interest in the long-term success of the game, and so have little respect for any of its rules and regulation. They are only pursuing short-term economic gains. This system guarantees their continued involvement with baseball's long-term future.

Third, banning players for life will also serve as a strong deterrent for the very best players. A ban from baseball is a public shaming and a permanent tarnishing of a player's legacy. For instance, baseball has little problem with gambling following Pete Rose's ban, and Rose wants nothing more than to be allowed back. Furthermore, a lifetime ban would prevent players from coaching and managing baseball at any level and could also effect endorsement opportunities.

Fourth, preserved samples can provide conclusive and compelling evidence of use in a way that retrospective investigation cannot. Those named in the Mitchell Report have already begun to protest the sources Sen. Mitchell interviewed and the tactics he employed. After-the-fact investigation that relies on circumstantial evidence is necessarily open to refutation. On the other hand, blood tests are far more authoritative: Batboys may lie, but test tubes rarely do.

Baseball faces a critical moment, no less momentous than the Black Sox gambling scandal it faced almost 90 years ago. Back then, owners and the players banded together to restore faith in America's game by appointing an independent commissioner. They have the opportunity to restore that faith again today. Half-steps toward compliance and token posturing are not enough. The owners and the players should adopt a framework that deters undetectable drug use in the present through drug testing and salary loss in the future. Only such a program can save baseball from performance enhancing drugs.

Aaron Zelinsky is a first-year student at the Yale Law School.