Fehr and Loathing in Washington, D.C.

Despite advance warning, in 2003 enough baseball players tested positive for steroids that MLB could have fielded five all-steroid starting lineups with “enhanced” pinch hitters to spare. As homerun totals have increased in recent years, baseball fans and analysts alike have crowed about “juiced baseballs.” It’s clear that it wasn’t just the balls that were on the juice.

By most early indications, even if more players than those who tested positive are steroid users, the preponderance of major leaguers is clean. Although it’s not possible to accurately quantify — in terms of baseball stats — the actual value of taking illegal performance enhancing drugs, science shows us that there are very real improvements in strength, power, and recovery time. This effectively “unlevels” the playing field, providing a game time advantage to those who decide to risk the harmful side effects of these drugs.

Headed by Donald Fehr, the Major League Baseball Player’s Association (MLBPA) is unquestionably the most powerful union in American professional sports. Yesterday, Fehr was one of several higher-ups from the major professional sports leagues who testified before the Senate Commerce Committee on the subject of steroids. Was calling this hearing a rather obvious case of grandstanding on the part of the committee members? It seems so, but let’s look at the facts….

The raison d’etre of a union is to represent and protect the interests of their constituents. Members are asked — and often expected — to forgo personal gain for the good of the union. But if the majority of major leaguers are not using illegal performance enhancing drugs, the absence of a real testing policy protects only the minority of players who do. Moreover, in a sport where the difference between making a squad and being the last cut could amount to hundred of thousands or even millions of dollars, the inaction of the MLBPA could be financially damaging to its union members. (Similarly, if steroids can turn an excellent player into an elite player, it will drive up his market value, which may cause a team to slash other parts of the payroll.)

Even if the testing trial results of 5%-7% are an accurate representation of MLB’s steroid problem (and like most, I’m skeptical), the outcry over the issue has compromised the reputation of the entire league. If the impropriety here is bad, then it may well be that the appearance of greater impropriety is worse. The union’s refusal to agree to a real policy has resulted in a scandal that has cast a shadow over all the players — even the ones who haven’t so much as jaywalked. The irony here is that the very institution that exists to protect the players is primarily responsible for the irreparable damage done to their reputations. (Yes, irreparable is a strong word, but I think that people will forever raise an eyebrow when looking at the offensive totals from this era.)

Often lost in this is the MLPBA’s soon-to-be $2.5 million/year man Don Fehr’s personal quandary; he currently maintains two opposing viewpoints! By day, Fehr is the purported mouth of major league baseball players. He’s the guy who looks John McCain in the eyes and says this:

“We believe that testing of an individual, not because of something he is suspected to have done, but simply because he is a member of a particular class, is at odds with fundamental principles of which we in this country have long and rightly been proud. It is not up to the individual to prove he is innocent, especially of a charge of which he is not reasonably suspected.”

Somewhere between five and seven percent of major leaguers failed drug tests that they knew were coming. That’s not ample reason for us to suspect that there are players taking steroids? Beyond that, were any of these players to apply for a job at most investment banks, consulting firms, or various other companies, they would be compelled to take a drug test. In his other role, Don Fehr might be more inclined to agree with my views on testing. In 2003, Fehr was appointed by the very same committee for whom he testified yesterday to head a Senate task force charged with cleaning up the U.S. Olympic Committee. The Olympic movement, though imperfect, is perhaps the role-model for drug testing in sports. Olympic athletes are subject to year-round, random, unannounced tests for over 100 banned substances. The first infraction results in a two-year suspension. The second ends one’s career. Contrast this with baseball’s policy: Five strikes and you’re out…for a little while, but then you can come back.

It may be going too far to say that Donald Fehr is aiding and abetting criminals although steroids are a controlled substance. He is without question, however, an enabler. While we obsess about the integrity of the game, the larger issue still looms: Players who obtain and use steroids are breaking the law. As an attorney, Fehr is ostensibly bound — both legally and ethically — to not only protect his client’s rights, but to uphold the law. Perhaps he should listen more intently to NFL Player’s Association chief Gene Upshaw, who was also a participant in yesterday’s hearing. “To allow the use of steroids and banned substances would not only condone cheating, but also compel others to use them to remain competitive,” Upshaw said. “We have a responsibility to protect our players from the demonstrated adverse health effects of steroids and banned substances.” If only the MLBPA felt so responsible.

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