The Negotiator

by George Mitchell

  • The number of in-season random urine collections will more than double beginning in the 2014 season (from 1,400 to 3,200). These are in addition to the mandatory urine collections that every player is subjected to both during Spring Training and the Championship Season. This represents the largest increase in testing frequency in the Program’s history.

  • Blood collections for hGH detection—which remains the most significant hGH blood testing program of its kind in American professional sports—will increase to 400 random collections per year, in addition to the 1,200 mandatory collections conducted during Spring Training.

  • A first-time performance enhancing substance violation of the Joint Drug Program will now result in an unpaid 80 game suspension, increased from 50 games. A player’s second violation will result in an unpaid 162-game suspension (and a loss of 183 days of pay), increased from 100 games. A third violation will result in a permanent suspension from Baseball.

  • A Player who is suspended for a violation involving a performance enhancing substance will be ineligible to participate in the Postseason, and will not be eligible for an automatic share of the Player’s Pool provided to players on Clubs who participate in the Postseason. (Such Players are already ineligible to participate in the All-Star Game.)

  • Every Player whose suspension for a performance enhancing substance is upheld will be subject to six additional unannounced urine collections, and three additional unannounced blood collections, during every subsequent year of his entire career.

  • The Arbitration Panel will have the ability to reduce a Player’s discipline (subject to certain limitations) for the use of certain types of performance enhancing substances if the Player proves at a hearing that the use was not intended to enhance performance.7

  • • •

  In announcing the agreement, Tony Clark, the executive director of the Players Association, said, “Experience proves that increased penalties alone are not sufficient; that’s why the Players pushed for a dramatic increase in the frequency and sophistication of our tests, as well as comprehensive changes in a number of other areas of the program that will serve as a deterrent. Make no mistake, this agreement underscores the undisputed reality that the Players put forward many of the most significant changes reached in these negotiations because they want a fair and clean game.”8

  These statements and actions represent a welcome change from the Players Association’s earlier long-standing opposition to drug testing. Whatever may have occurred in the past, it is clear that the players and their union, to their great credit, are now committed to an effective program with strong penalties for violations. Among other results it has enabled me to again view baseball as I did when I was a young boy growing up in a small town in Maine—not quite as innocent, perhaps, but still with hope for the future.

  As far back as I can remember my brothers, my friends, and I played baseball. It started as soon as I could hold a bat and throw a ball: pickup games, Junior League (the rough equivalent of the modern Little League), American Legion summer league. I wasn’t good enough to make the varsity team in high school or college, so I played in a variety of softball leagues, then and later in college and the army.

  After playing baseball all day we listened to and talked baseball in the evening. My brothers and most of my friends followed and rooted for the Boston Red Sox, although a few supported the New York Yankees. We all were up to date on the many statistics of baseball: the standings, the batting averages, the pitching records. As with baseball fans everywhere our discussions were endless and inconclusive, especially when the subject was Ted Williams or Joe DiMaggio. Although our support never wavered, we agonized over Boston’s close loss to St. Louis in the seventh game of the World Series in 1946 and their rout at the hands of the Cleveland Indians in a one-game playoff for the American League Championship in 1948. As year after year passed without a championship the intensity of our support increased even as our expectations declined.

  On many summer days when there was no game or team practice my friend Ron Stevens and I would walk the short distance to the Colby College diamond, where the two of us played our version of a full baseball game. We had one bat, a few old baseballs, and one glove each. He stood at home plate as I pitched the balls to him. After he hit all of them we trotted out to pick them up and continue the game. When he made three outs it was my turn at bat. We called each batted ball: ground out to the second baseman, single to left field, fly out to right field. These were, of course, highly subjective judgments, so there was a lot of debate about each call. On and on we went, through seven innings, which was the usual length of Junior League games. Since there were just the two of us our games took a very long time, often a full morning or afternoon.I

  It was not until I was in high school that I got to see my first Major League game. As a birthday present, my brother Paul and his wife, Yvette, took me to Fenway Park to see the Red Sox play the Yankees. I was deeply impressed by the size and beauty of the park. I had played in and watched a lot of local baseball games at which the attendance ranged from zero to a few dozen. To be among a crowd of thirty thousand people watching a game was for me an unforgettable experience.

  The teams were tied at the end of nine innings. In the top of the first extra inning Joe DiMaggio came up to bat with the bases loaded. After taking a couple of pitches he swung and hit a hard line drive to left field. The crowd leaped to its feet in anticipation, then heaved a collective sigh of relief when the ball veered just outside the foul pole as it cleared the thirty-seven-foot left field wall known to baseball fans everywhere as “the Green Monster.” But we were barely back in our seats when, just two pitches later, DiMaggio hit one harder and longer. There was no doubt this time as the ball sailed out of the park, high over the head of Joe’s brother Dominic, the Red Sox center fielder, for a grand slam home run. In the home half of the inning the Red Sox went down meekly, retired in order. To complete our anguish Ted Williams struck out to end the game. But to me it was still a great day, one I’ll always remember, especially to be able to see both DiMaggio and Williams in my first Big League game.

  Paul’s memory of the day is not of the game. He recalls that when we ate before the game, I (then a finicky eater) took so long picking the onions out of my plate of spaghetti that we were almost late getting to Fenway. Aside from the game, what I remember most vividly about the trip is that we stayed overnight at a hotel in Boston; that was an exciting first for me. There was only one bed and it wasn’t very large, so it was a night of close encounters. Paul slept in the middle, and I had only a narrow sliver of mattress on one side. The next morning he complained that I had kept him up all night; he rejected my explanation that I had to hang on to him to keep from falling out of the bed. Not surprisingly, that was the last time Paul took me to a baseball game.

  It was a long way from there to the inner sanctum of Major League Baseball. That came much later, on the morning of March 10, 2006. Just as I opened the door the phone rang. I was in Anaheim, California, at a hotel in Disneyland, about to leave for the annual meeting of shareholders of the Walt Disney Company. A large crowd was expected. As chairman of the company’s board of directors I would preside over the meeting, so I didn’t want to be late. My first instinct was to ignore the call, but as the ringing continued I paused; it might be an emergency at home. I picked up the phone.

  “Hi George, it’s Bud Selig.”

  “Hi Bud, what’s up?”

  “I need your help.”

  Selig, the MLB commissioner, told me that he was deeply concerned about the problem of the use of performance-enhancing substances by the players. The recent publication of a book on the subject by two San Francisco writers had generated widespread publicity and growing criticism of baseball.9 Selig asked me to conduct an investigation to find out, as best I could, what had happened, and to make recommendations to improve the League’s drug-testing program. He had been pleased at the results of the Blue Ribbon Commission a few ye
ars earlier and felt that I could do the job that was needed now.II The Blue Ribbon Commission’s report had a major and positive effect on baseball. Many of our recommendations found their way into the collective bargaining agreement that was entered into between the thirty clubs and the Players Association in 2002. It was the first such agreement reached in Major League Baseball without a work stoppage since 1972, and there has not been a work stoppage since. Clearly Selig was hoping for a similar result on performance-enhancing substances. But there were significant differences in the two situations.

  “Bud,” I said, “I’ll be happy to talk further with you about this, but there’s one thing I need to be clear at the outset. This won’t be a committee, like the Blue Ribbon Commission, this will be just me. I’m your friend, but you understand that if I do this I must have complete independence to follow the evidence wherever it leads and to report on what I find, whatever that is.”

  “I understand,” he said, “and I agree. You have my commitment that you will have my full support and total independence.” Neither he nor I could know then what I would find, conclude, or report. But, to his credit, he never wavered in those commitments.

  It took several lengthy meetings to work out the details. I was retained by the commissioner and in turn retained the law firm of which I was then chairman, DLA Piper. I put together a formidable team, led by three of the most able lawyers I have ever met: Charlie Scheeler headed up the investigation, John Clarke was assigned to draft the report, and Peter Pantaleo served as my principal advisor. When the commissioner announced my appointment at a press conference at MLB headquarters in New York on March 30, 2006, we hoped that we could complete our work by the end of the year.

  Within days of the announcement our optimism vanished. We still thought we could finish by the end of the year, but we no longer knew which year. It quickly became clear that the players’ union was surprised and upset by the commissioner’s decisions to have an investigation conducted and to appoint me to head it. Our research made clear that baseball and drugs went back a long way, and the issue created animosity between the club owners and the commissioner, on one hand, and the players and their association, on the other.10

  Although I anticipated the union’s negative reaction to my appointment and to the investigation, I was surprised to learn, through a few public and many private comments, that some owners and even some officials within the commissioner’s office also were opposed to the investigation. Selig had acted despite the negative views of the Players Association and contrary to the views of some of the owners. It was courageous of him, but it didn’t bode well for me and my colleagues. Lacking subpoena power, we could not compel the cooperation of witnesses or the production of documents. How were we supposed to conduct a meaningful inquiry and submit a credible report when all of the players and some of the owners were opposed to the investigation?

  We began by reaching out as broadly as possible:

  • I initiated a dialogue with the Players Association.

  • We initiated an effort to establish a baseline of usage, based on existing data from players’ preseason physicals, without identifying any individual players.

  • We attempted to make contact with the players, current and former, who had been publicly implicated in the BALCOIII scandal, and their attorneys.

  • We tried to engage with all current players.

  • We reached out to the federal prosecutors who were handling the criminal investigation of BALCO.

  • We began to conduct interviews with officials from each of the thirty clubs, including owners, general managers, managers, coaches, trainers, and other club employees.

  I went directly to the head of the Players Association. I had met Don Fehr, its executive director, when, at the request of the U.S. Olympic Committee, I chaired a commission investigating allegations of impropriety and corruption by members of the International Olympic Committee in connection with the selection of Salt Lake City as the site for the Winter Olympic Games in 2002.11 Fehr, who had been active in Olympic matters for many years, was a member of the commission. We worked closely together, along with the other commission members. I liked and respected him and had the impression that the feeling was mutual. Our several discussions on the baseball investigation were cordial but unproductive. He and the players were upset that Selig had not consulted with them about the investigation or about my being chosen to head it. He insisted that the Players Association had come a long way from its initial opposition to drug testing in any form, and he emphasized that the owners had not pushed hard for tougher testing in the collective bargaining process. I responded that, while any conclusions were necessarily preliminary and tentative, based on the many estimates I was aware of it appeared that a minority of players were users. The Players Association had an obligation to all of its members, including the majority who did not use performance-enhancing drugs and who, as a result, were faced with the unacceptable choice of using or of being placed at a competitive disadvantage. He never explicitly rejected that argument, but he emphasized his obligation to all players, including those about whom as yet unproven allegations might be made. He never declared that the Players Association and its 1,200 members would not cooperate in the investigation, but that’s the way it turned out. The Association subsequently rejected my requests for relevant documents and urged the players to refuse to talk with me.

  One of the first questions I encountered after accepting this assignment was “How big a problem is steroid use in baseball?” Major League Baseball had been able to start random drug testing in the minor leagues in 2001 because the approval of the Players Association was not required, but the Association always had resisted testing at the Major League level. In August 2002, however, under enormous public pressure, the MLB clubs and the Players Association had reached a collective bargaining agreement for the years 2003–6. For the first time this agreement included a form of mandatory random drug testing. Drug testing beyond 2003 was not automatic under the agreement. The “survey testing” that was conducted in 2003 was anonymous. Despite the fact that the players knew in advance there would be tests, enough players tested positive to trigger mandatory drug testing for the 2004 season and beyond.

  I reached out to many experts in the field, most of whom expressed the view that steroid use was much higher than these figures suggested. The point made most frequently was that the survey test was meaningless because the players had known about it in advance, and even then many of them had tested positive. Some also cited the case of Marion Jones, the track and field star, which became public at about this time, and other cases, to demonstrate that athletes could pass tests and yet still be illegally using steroids.IV I learned during the investigation that no drug-testing program, no matter how well administered, can be expected to catch all cheaters. Many athletes and their advisors have become very skillful at evasion, and people are always creating new and—at least for a time—undetectable substances.

  In an interview with a member of my staff, a cooperative club physician stated that every player is required to take a comprehensive physical each year at the beginning of spring training. These physicals include blood tests. We then spoke with a number of experts in endocrinology and learned that there are a number of markers, such as changes in cholesterol levels, that can be telltale signs of anabolic steroid use. (These markers would not, however, detect the use of human growth hormone, hGH.) Alone these markers were not sufficient to establish that a particular player used steroids. But, we wondered, could the aggregated data from the thousands of physicals conducted since the beginning of the so-called steroid era provide a reliable estimate of overall steroid use in baseball over time? If it could, that would be extremely helpful in developing recommendations to improve the drug-testing program. We could estimate the size of the problem, which would allow us to appropriately scale the proposed remedies. And we would not need to identify individual users to do so. We also could determine the effect of drug test
ing on overall use. Was drug testing reducing drug use? As simple as the question seems, no one knew the answer.

  I retained Dr. James Heckman, a professor of economics at the University of Chicago who is an expert in constructing statistical studies from huge amounts of data. He told me that, with assistance from an expert endocrinologist, he likely could develop reasonably accurate estimates of overall steroid use in the MLB on a year-to-year basis. To do so he would use a process called latent variable analysis.V I knew Heckman was the right man for the job. In 2000 he was the co-winner of the Nobel Memorial Award in economics for his work on latent variable analysis.

  There had never been a study like this conducted in any sport. The results would not only be important for baseball, but they could provide a window into how prevalent illegal steroid use was in all competitive sports. Such a study would have been an important milestone for years to come.

  But major hurdles remained. Federal and state medical privacy laws prevent the disclosure of medical records, such as the players’ physicals, without the consent of the patient. And the patients would not give their consent. Without that, the clubs could not provide the information.

  For months we worked with the Players Association, the clubs, and the Commissioner’s Office to solve this problem. We proposed that all of the medical data would be “de-identified”; in other words, before Heckman’s team would see any data, the players’ names and all other identifying information would be removed by a separate group of experts who would have no involvement in the data analysis. We agreed that under no circumstances would any individual player be named as a steroid user as a result of this study, an issue of great importance to the players and their union. But the Players Association refused to waive its members’ rights under the privacy laws; as a result we could not get agreement to proceed from the Association or from the clubs. After months of negotiations we had to abandon the project.