Believe it or not, the Mitchell Report on steroid use in Major League Baseball may present an interesting international choice-of-law issue. As Roger Alford notes at Opinio Juris, the report presumes that all steroid use that would have been illegal if performed in the United States was illegal, even though some of the alleged offenses occurred in other countries. As Alford notes:
Problem is, under traditional rules of extraterritoriality, the federal regulation of the use of performance enhancing substances does not obviously apply when such use occurs in other countries. And various sections of the Mitchell Report detail allegations of “illegal” use in Canada, Venezuela, and the Dominican Republic.
I am not suggesting that the use of those substances is permitted in any of those countries. But from my reading of the Mitchell Report, it appears that the report omits materially relevant information about the governing law regarding the use of those substances outside the United States. There is almost no mention of Canadian law, and there is no mention whatsoever of Venezuelan law, Dominican Republic law, or for that matter, the 1971 Convention on Psychotropic Substances. Nor is there any explicit reference to the extraterritorial application of federal law to regulate the use of these substances abroad.
The syllogism drawn from the Mitchell Report appears to be that (1) Major League Baseball’s drug policy prohibits the use of “illegal” substances, (2) “illegal” substances are defined by reference to federal law, and (3) therefore, the use by any player of performance enhancing substances anywhere in the world violates Major League Baseball’s drug policy.
Alford is willing to be convinced that this syllogism is correct, but he does not find it to be self-evident.
Apparently, THG was a drug developed in the seventies by a pharmaceutical company and abandoned during testing. In 2003, the FDA issued a memo prohibiting its manufacture and marketing as it was not an approved drug. However, that memo did not, and probably could not, prohibit the possession and use of the drug.
So, a hypotheticai baseball player steps forward and declares that prior to the implementation of the 2003 MLB drug policy, he had used THG, but only THG. Has he broken any laws or any MLB rules?
some examples: tryptophan. this is an amino acid. it is NOT legal to SELL for human use (specifcally for ingestion). it is NOT a controlled substance, nor is it a legend drug. so, it's not illegal to POSSESS or use.
anybody can go into a tack store and buy tryptophan (it is marketed as a food supplement for horses). that's not illegal. you can possess and consume it. that's also not illegal.
another example. at one point, the FDA banned the sale or marketing of ephedrine as a food supplement (it's a phenomenal dieting and performance supplement for weight training, especially when combined with caffeine).
this was of course a nannystate congress trying to circumvent DSHEA based on flawed AER's.
regardless...
at the time when the ban was in effect, it was not illegal to possess or use ephedrine. you couldn't SELL OR MARKET it as a dietary supplement, but any joe could buy it (bronkaid, primatene tablets, etc.) and consume/possess legally.
as for THG...THG was essentially grey market. there have always been and will always be grey market steroids - essentially different enough in chemical structure so as to not fit under the specific laws that make possession of steroids (AAS) without a prescription illegal. specifically, they are controlled substances.
an example is m-1-t. for years, this oral methylated version of 1-testosterone was not illegal. then, congress expanded the definition of steroids to include m-1-t. as long as THG did not fit under the definitions, or analog definitions, it was not illegal to POSSESS.
otoh, it most definitely might be illegal to market or dispense to another, as an "unauthorized drug" but NOT to possess.
also note that even so called "illegal" steroids (AAS) are not ILLEGAL to possess as long as somebody has a prescription. there are doctors and clinics that will prescribe therapeutic doses of testosterone etc. for HRT. now, if they are prescribing grossly high levels (like 1 gm a week) of testosterone, they will be violating the law (the MD's will be), but it's hardly the patient's responsibility. that's the MD's. there are MD's who have lost their license and been prosecuted for prescribing very high supraphysiological amounts of AAS. whereas many clinics have gotten no legal problems for prescribing smaller levels. and an athlete who got some there would be in the "clear" no pun intended.
also note that many countries do not schedule or criminalize AAS.
if the athlete made road trips to mexico for example, injected some long esters there for example, and then retutned to the US, they might be in violation of baseball rules, but NOT the law.
so, in summary - 1) the drug would have to be covered by the law (iow did it fit under the act of 1990 or its extensions) 2) and it would have to have been possessed within the USA without a prescription for it to be a violation of the law.
just because somebody tested positive for AAS or even admitted to using AAS does not mean any law was broken.
but it is entirely possible that the specific MLB rules might be much more inclusive than the law. iow, anybody using THG might have been in violation of MLB rules. i know a # of athletes who are subject to the international olympic no advanced notice testing program for performance enhancing drugs. these rules are much much much more all encompassing than the steroid laws are, and THG would DEFINITELY be a violation of these rules. i would guess (just a guess) that MLB rules are similarly much broader than the law is.
As a hypothetical alternative: Suppose the contract in MLB prohibited bigamy. Bigamy is defined in the US code. Let's further assume that a ballplayer keeps his second wife in Canada. (If necessary, we can also hypothesize that Canada has no laws against bigamy.) Would a lawyer really argue that the player is not in violation simply because his two wives are not both in the USA?
Thoughtful, its just an aside, but bigamy is probably not defined in the U.S. Code (unless there is some archaic definition that got put in as a part of preventing Utah from entering the union while still allowing polygamy).
Another question that this raises, is what baseball should do in the future about athletes from other countries who took substances that are illegal here in the U.S. before they signed up with MLB. If the players are under contract, then there's no problem. How about Clemens between his retirement stints? He retired from the Yankees, then went into his workout regiment before resigning with the Astros. Is he bound by baseball's contract prohibitions when he is not under contract?
The only issue here is the use and meaning of terms like "illegal".
I just do not understand the fuss, and never have.
fwiw, i train with several athletes who are on the NAN program under the international olympics committee. they are prohibited from using tons of LEGAL as well as illegal substances. MLB is MUCH more lenient (as you would expect) than the standard for the olympics. recall that, for instance, one athlete at (sydney iirc) got in trouble for using a pseudoephedrine cold medicine the night before her competition. legal, but BANNED within so many days of comp.
ephedrine (and pseudoephedrine) are both legal. the former gives SIGNIFICANY performance enhancement in many sports, and is thus banned within so many days of competition. even though its entirely legal.
One is allowed to improve with diet and exercise, but one is not allowed to invent a pill that replaces exercise and take the pill. If my main role were that of a sports historian/statistician, I could understand how it might become more challenging to compare records over time, but as a mere spectator, I want to see players running faster, hitting baseballs harder, etc. "Enhancement" is fine by me, and distinctions between natural and artificial enhancement seem hard to justify philosophically.
I don't know what the evidence is about the bad effects of many of these drugs. If you look at all the people who have done them, its hard to see how taking the drugs has hurt alot of them. And even if it is harmful, is it more harmful than the beatings a heavyweight boxer takes, or the joint damage that is almost inevitable for a football lineman or running back? Or the serial concussions that QBs and receivers are likely to get?
As for the bad for kids argument: first, its the first refuge of the new puritans, and the argument should always be looked at with some suspicion. Second, kids aren't looking up to baseball players so much anymore in the U.S. Football and basketball are much more popular. I'm not sure we should care so much if the kids in Latin America and Japan are looking to these ballplayers as role models. And, of course, if you took this argument to its extreme, then the curve ball, slider, and screwball should all be banned from baseball. If kids try to throw these pitches before they are fully developed it could ruin their arms and cause permanent damage. We can't let pitchers throw curve balls and endanger the kids.
that is a big justification (so called justification) and lets get real.
elite sports performance at the pro level is NOT about health. as one reaches the extremes of human performance one NECESSARILY sacrifices some safety/health for increased performance. this is true in endurance sports, power sports, etc. and that's not even taking into account the dangers inherent in contact sports like football, MMA, etc.
also, *if* athletes could use these substances without hiding their behavior, they could use them MUCH more safely. ALL drugs have risks - aspirin, tylenol, etc. etc. but AAS used under a Md's supervision (with proper anti-aromatase's, HCG therapy etc.) is very safe - much safer than many OTC and Rx drugs that MD's will readily prescribe to nearly everybody because they don't have the stigma of AAS.
for example, one of the dangers of AAS is that they preferentially increase muscle strength without concomitant increases in tendon strenght, thus making tendon injuries (tears, etc.) more likely. however, there are certain therapeutic modalities that can significantly increase tendon strenght, etc. but they must be intelligently used AND they are so easy to test for that athletes generally won't use them. and they are less available.
by FAR the safest AAS are also the NON-methylated version (methylated orals are generally very hepatotoxic), but in the grey/black market, and with testing issues to be concerned about, many athletes (and high school kids etc.) resort to using the MUCH more dangerous methylated orals since they have faster clearance time (generally speaking), and are seen as less extreme (since they are oral and don't involve needles.), but are actually much MORE extreme. hepatotoxicity is nearly nonexistent in (most ) injectables but a big consideration in nearly all orals.
much like marijuana, AAS have no LD50 (basically 100% nontoxic). there is also a sweet spot. once an athlete takes a certain amount, increased amounts (that increase risks/side effects) have little to no increased BENEFIT, so that the dangers are again much less than believed.
"and 2) we have to protect the children"
govt. is almost always at its most odious when it seeks to protect us from ourselves, and protect "the children".
i *do* agree that athletes using AAS in the open, probably would result in more kids wanting to use these drugs. and the dangers of AAS for those kids that are still growing ARE real , and are completley different than those for those that have stopped growing. premature sealing of the bone plates for instance CAN (theoretically) stunt growth, and there are all sorts of other issues.
selling AAS to minors should be a crime that is vigorously enforced with extremely harsh penalties.
im all libertarian and stuff. what adults do to/for themselves should generally be personal decisions. but if you mess with other people's children, you should be (imo) vigorously prosecuted.
It also seems clear to me that athletes will continue to use the latest, greatest drugs if they think they are undetectable and also think they will improve performance. So the plan to be ever vigilant will simply ensure some level of ongoing scandal and skepticism.
As for the kids, I agree that it should be illegal to sell the stuff to kids, and that parents and coaches should do whatever they can to discourage kids from using it. I feel the same way about little league coaches teaching kids to throw corves.
i specialized in drug investigations for several years, and my concentration was in designers and pharmaceuticals specifically. i appreciate the compliment.
" If you are right, then the drugs are safer now than people make them out to be, and would be safer still if the athletes could take them in the open, rather than trying to hide what they are doing"
yes. in many countries, they are either over the counter, or easy to get with a prescription. the US made them into controlled substances following the positive test for stanazolol (winstrol) by ben jonson, a 100m sprinter. what is interesting about the congressional testimony (that most people would be shocked by) is both the DEA and the AMA came out AGAINST!!!! scheduling them. they are not a recreational drug, they do not create a high, nobody had ever overdosed, and they were merely Rx drugs at that point. but in a "let's do it to save the children" mentality, congress made them into a C-III controlled substance even though neither the AER's or pharmacology justify it.
they are powerful drugs, and they are certainly MUCH safer if taken under a qualified MD's oversight. due to their scheduling (it is illegal to prescribe them FOR muscular enhancement, improved sports perforamcen etc.), very very few dr's are even comfortable prescribing them unless serum T levels are EXTREMELY LOW (much lower than optimal ).
some clinics are much more progressive, but constantly risk raids and DEA scrutiny.
im glad we both agree about the kids. steroids (AAS) are very problematic for those whose growth (epiphyseal plates i believe are the issue) is not completed as they can cause premature fusion, etc. - basically "stunt your growth" and interfere in other ways with the growth process.
what is ironic (and ridiculous) is that any woman (or man) can seek cosmetic surgery, which is FAR FAR FAR more dangerous and completely unnatural for 'enhancing their looks' and that's completely acceptable to the AMA, DEA, etc. (people do die from surgery, get ill from botched surgeries, get surgeries that go wrong that scar them, etc.) but men who want to enhance their muscularity, sports performance, and quality of life with a substance that is naturally present in their own bodies (but in declining amounts as they get older) risk prosecution OR they have to pay through the nose at expensive clinics.
that is a ridiculous double standard.