Monday, March 16, 2009

LTG 02-14-09: A-Roid

(Published in the Omaha CityWeekly in the week of 02-14-09)

Being a CityWeekly columnist gives you a number of perks. Getting free after-dinner mints from restaurants, for example, is very cool. But one of my favorites is the one I get to take advantage of right now. I am now officially the last person to weigh in on the Alex Rodriguez steroid story. When you get beat to the punch by both President Barack Obama and The Onion, you know you’re running behind.

For those of you who only get your news from the Law-Talking Guy (and God bless you for it), Alex Rodriguez, the third baseman for the New York Yankees, admitted last week to testing positive for an illegal performance-enhancing drug (PED) between 2001 and 2003. The testing was part of an agreement between Major League Baseball and the Players’ Association. The idea was to anonymously test major league players to see how many of them were using PEDs. If more than a certain percentage were using, then the Players’ Association would agree to implement drug testing for PEDs.

The key word there, of course, is anonymous. The whole reason the Players’ Association agreed to the “survey” was because there would be no danger of a particular player’s name being linked with PED usage.

Oops. So, if the testing was anonymous, how could A-Rod’s name be definitively linked with a dirty test sample?

(Sorry, I know “A-Rod” isn’t proper AP style for a second reference to Rodriguez, but it just doesn’t sound right to not refer to A-Rod by his incredibly-lame nickname. Chalk it up as another CityWeekly perk. Take that, AP Stylebook!)

Well, there were a couple of interesting little subplots playing themselves out throughout this whole “survey.” First of all, the Players’ Association, who was rabidly determined to prevent any testing of the players at all, was trying to find enough players that gave false positive results to get the percentage under the magic number needed to trigger testing.

But in addition to that, the Federal government was conducting a criminal investigation into the use of steroids by athletes, particularly by Major League Baseball players. U.S. Attorneys, like many other lawyers, watch ESPN, so they knew that these tests were going to be conducted.

Now, keep in mind, using steroids and many other PEDs is illegal without a doctor’s prescription. And, last I checked, most doctors won’t write a prescription for “chronic left field power shortage.”

So, those U.S. Attorneys did what prosecutors do – went to a judge and got a subpoena ordering the Players’ Association to turn over the results of the “survey” to the government.

But wait, you say. That survey was supposed to be anonymous. The players wouldn’t have given those samples without that anonymity. How can the government do that?

Simple. The law doesn’t let you keep commission of a crime a secret. The mafia can’t prevent someone from testifying about one of their meetings because they all made the super-secret handshake sign beforehand to keep things quiet. The union was foolish enough to go forward with this “anonymous” survey to determine which of their members was violating Federal law, to do so knowing full well PEDs were the focus of some big-time Federal investigations, and to maintain records that could implicate specific players long enough to get stung with a subpoena.

If that sounds harsh, then I’ve done my job. For the last few years, baseball has been suffering from the fallout of the “steroid era,” where hallowed records are being made meaningless and the integrity of the game is called into question by its’ fan base.

And the primary place to lay blame for that is at the feet of the Players’ Association. For years, it was pretty obvious that baseball had a rampant PED culture. But the Players’ Association fought the battle successfully to keep any testing for PEDs out of baseball. They were, of course, successful in doing so, but the cost is staggering.

Compare, for example, baseball to football. The National Football League has a history with PEDs that is just as bad as baseball’s. And yet no one looks at the NFL as a league of cheaters. In large part, that’s because when the NFL’s PED problem hit the papers, they immediately instigated testing. Now, their fan base trusts the NFL to take care of whatever problem may exist. Whether or not that trust is misplaced is a legitimate question, but there is no doubt that the NFL enjoys a perception of trustworthiness that Major League Baseball does not.

And that’s because we spent the better part of a decade watching Mark McGuire’s arms swell like balloons and yet see no testing for PEDs in baseball. That happened solely because of the union’s short-term myopia. Yes, they kept testing out, winning a short-term battle. But in doing so, they’ve damaged the credibility of the sport for at least a generation, losing a much more valuable long-term war.

Further, in their zeal to fight a testing policy, they retained records incriminating individual players that they should have never allowed to be created in the first place. Doing so, particularly when you know or should have known that there are prosecutors trying to put people in jail PED usage, put the players in unnecessary jeopardy of being in A-Rod’s situation now.

There’s a lot of people that can be blamed for the creation of a steroid culture in baseball. But there’s only one organization – the Players’ Association – that bears primary responsibility for the cloud of suspicion the sport suffers under presently. The leaders of the Players’ Association are lawyers, who have proven themselves very good at contract negotiations. I wonder if they are just as good at malpractice defense.

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