pageok
pageok
pageok
An Analysis of United States v. Comprehensive Drug Testing:
On December 18th, the en banc 9th Circuit will hear oral argument on an important case involving how the Fourth Amendment applies to the search and seizure of computers. You can read the revised panel decision here, and download the petition for rehearing here (5.2mb). I've written a lot about these issues and I worked extensively on them back was at the Justice Department in 1998-2001. Given my writing and past work in the area, I wanted to blog some thoughts about the case.

I. The Facts

  The facts of the case are quite complicated, but here at the basics. The government has been investigating steroid use in baseball, and it obtained warrants for computers owned by the third party company, Comprehensive Drug Testing, that ran the steroid tests. The warrant sought the records of 10 specific players, combined with any "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" the "administration of Major League Baseball's drug testing program."

  During the execution of the warrant, much of the day was spent in negotiation between the government and CDT as to exactly where the information was located and how it could be copied. The government ended up not taking any equipment, but it did copy a directory of files, called the Tracey directory, that contained a lot of records beyond the mere 10 specific players sought in the warrant. There is some dispute among the parties (and the judges in the panel opinion) as to why the government copied the entire directory rather than stay onsite and only copy the records of the 10 players. Although the facts are kind of unclear on this, it looks like the government ended up looking through the Tracey directory for evidence within the scope of the warrant, and then discovered lots of stuff involving other players' steroid use and sought to expand the investigation on that basis.

  In this case, CDT and the Major League Players' Association have challenged the search warrants and the expanded investigation, arguing on behalf of the other players' interests. Rather than waiting for charges to be filed, which would then lead to a motion to suppress, the groups are trying to assert the Fourth Amendment rights of the unindicted players outside the scope of the initial 10 players using the procedural vehicle of a Rule 41 motion for the return of property unlawfully seized. The question is, should the motion be granted and the investigation preemptively stopped in its tracks? Or should the government be allowed to proceed?

II. Introduction to the Two Big Issues

  This case is particularly interesting because it ends up at the intersection of two distinct problems that I used to deal with a lot when I worked at the Justice Department. As I noted in an earlier article on computer warrants, computer warrants are usually executed in two stages: the physical search stage and the electronic search stage. First, the government goes and takes the files away (the physical stage), and second, the governments searches through the files obtained for the evidence sought by the warrant (the electronic stage). This raises two distinct problems in cases like CDT. At the physical stage, the problem is how to minimize the intrusiveness of the on-site search at operating third-party business. At the electronic stage, the problem is how to minimize the intrusiveness of the off-site search.

Mahan Atma (mail):
"If this issue arose in the context of a motion to suppress, only the actual persons whose Fourth Amendment rights were at issue could file such a motion."


Orin, can you elaborate on this a bit please? (And as a general matter, not just how it applies to this case, necessarily.)

Suppose I hire a third party (e.g. a company that hosts computer servers) to handle my information, and I take steps, together with that party, to try to ensure my information is kept private (at least within my own company's internal business dealings, meaning it's not made public to anyone outside of my business).

If the govt obtains a search warrant to get that company's computer hard drives, or any part of them containing my information, do I have standing to challenge the warrant?
12.9.2008 3:46am
Mahan Atma (mail):
"(at least within my own company's internal business dealings, meaning it's not made public to anyone outside of my business)"


I guess I would have to add also that the third party I contracted with has access to my data, by virtue of its position as the owner of the computer servers.

To me, this is analogous to renting out a storage locker at a private facility, where I can put a lock on my unit's door, but the facility can also access the unit.
12.9.2008 3:52am
OrinKerr:
Mahan,

Assuming you had an REP in the relevant data, you could challenge the search by filing a civil suit or moving to suppress evidence against you. But in that case you would be asserting your own Fourth Amendment rights, not someone else's.
12.9.2008 3:54am
Mahan Atma (mail):
Right, this is a situation where I want to assert my own Fourth Amendment rights, if I have standing to do so.

By "REP" you mean expectation of privacy? I'm generally aware of what factors determine that (subjective and objective expectation), but how does this play out in the context of a computer server hosted by a third party?

Suppose the third party (say it's an independent contractor, if that makes any difference) actively manages my data along with me. They see it every day because it's part of the job for which I've hired them -- managing my otherwise-private network traffic.

Is this like Miller then, where my exposing the information to a third party basically eviscerates my expectation of privacy?
12.9.2008 4:28am
anon23:
How do you view advances in technology since the Steve Jackson Games seizures, specifically the capability to quickly and perfectly copy a hard drive bit-for-bit, as influencing the conundrum facing AUSAs?

I note that even for a 1990 seizure, the district court found:

These computer experts certainly had the ability to review the stored information and, importantly, to copy all information contained in the computers and disks within hours.

(emphasis added). If the SJ raid had descended on their computers, pulled the hard drives only long enough to duplicate them, reinstalled, and rebooted the computers in question, the publishing-related disruption to SJ Games would have been greatly (and probably completely) diminished.

As an aside, would such a solution comport with the FRE if the government seeks to introduce evidence acquired from review of the bit-for-bit copy, rather than the original? One potential solution would be to install the copy drive and retain the original, although this may present some minor technical challenges in the case of non-identical hardware (partition sizing, physical hard ddrive performance, reliability, etc).
12.9.2008 11:04am
MarkField (mail):
Let me add some additional background facts which may (or may not) affect the legal reasoning here.

When MLB and the MLBPA agreed to drug testing -- a very contentious issue -- part of the agreement was that the first year of testing would not reveal the names of any players and that there would be no penalty for any positive result. If the number of positive tests fell below a certain level, no future testing would be permitted. If the number of positive results was above that level, then a testing system would be implemented. The reason for this arrangement was that nobody knew how widespread the problems were; the "no disclosure, no penalty" provision was intended to encourage the players not to try to cheat the tests and to allow the results to give an accurate picture.

When the government went after the test results as part of the BALCO investigation, it effectively undid this part of the collective bargaining agreement and cheated the expectations and even trust of the parties. Clearly the government had the power to do so; whether it was wise is another question. I'll note that the parties have now changed the testing agency to one based in Canada, presumably beyond the reach of further subpoenas.

Yet again, it seems to me that the "war on drugs" is leading to both bad policy and bad law.
12.9.2008 11:28am
OrinKerr:
Mark Field,

Those facts are interesting, but irrelevant from a Fourth Amendment standpoint. Also, Canada isn't beyond the reach of the FBI subpoena power: the FBI can just use the US/Canada mutual legal assistance provisions to have the Canadian authorities get the info for the FBI.
12.9.2008 12:20pm
MarkField (mail):
I agree that they're irrelevant from a strictly legal perspective (though perhaps they shouldn't be). I do think policy concerns ought to be part of the prosecutor's mindset.

As for the Canada firm, the new provisions also require destruction of the samples (as did the original one; for unclear reasons, that didn't happen). If the government were to go after the new samples, I'm sure the next testing firm would be located in China. Or Iran.

If the sports industry decides that it wants to eliminate certain drugs, that's something which (I assume) the government would want to encourage. Using the criminal process in circumstances like this destroys the trust necessary to do so.
12.9.2008 12:43pm
OrinKerr:
Mark,

That may be. But I'm a Fourth Amendment fan, not a baseball fan, so I couldn't tell you one way or the other.

As for me, my concern of policy is more concern of equal treatment under the law: I don't want the courts treating baseball players differently than anyone else just because they are wealthy and famous.
12.9.2008 1:01pm
MarkField (mail):

As for me, my concern of policy is more concern of equal treatment under the law: I don't want the courts treating baseball players differently than anyone else just because they are wealthy and famous.


Then you certainly should oppose this subpoena. The players are being targeted solely because they're wealthy and famous. Unless the feds have also subpoenaed test results from the truckers that I don't know about, in which case I'll retract my comment.
12.9.2008 1:40pm
Dave N (mail):
I know a day is going to be strange when I completely agree with Mark Field--so now I must wait to see what other unexplainable events will occur today.
12.9.2008 1:51pm
OrinKerr:
MarkField,

My concern is with the law, though, not whether the prosecutors are targeting high profile defendants for deterrent value in a way that is fair or unfair. If the law of subpoenas permitted a grounds to quash a subpoena on the grounds that I would rather the investigation not occur, then I suppose I could look into the equities in that way. But unless I'm missing something, the law provides no such grounds for the quashing of the subpoena.

Put another way, I'm interested in what the judiciary should do as a matter of law, not whether I like what the executive is doing as a matter of policy.
12.9.2008 2:00pm
MarkField (mail):
Dave, go buy a lottery ticket now.
12.9.2008 3:02pm
MarkField (mail):
I'm interested in what the judiciary should do as a matter of law, not whether I like what the executive is doing as a matter of policy.


The way I see it, the two issues aren't entirely separable. The 4th A rests, at least in part, on a concern for executive overreaching. I think we ought to interpret the amendment with that purpose in mind.
12.9.2008 3:13pm
OrinKerr:
MarkField,

That is an interesting new theory of interpretation, and it's interesting to think of how different it would be from the world we have now. But I was assuming the issue here was what the Ninth Circuit should do if they follow the law, not what the Ninth Circuit should do if they conjure up a new theory of what the Fourth Amendment should mean. But then it's the Ninth Circuit, so who knows.
12.9.2008 3:34pm
Mahan Atma (mail):
Orin,

I researched my above question a bit, and found an interesting Sixth Circuit opinion (Warshak), which was subsequently vacated by an en banc panel on ripeness grounds.

Do you have any opinion on the original panel's description of the substantive issues I raised above (as opposed to the procedural issues, which I note you have already objected to)?
12.9.2008 4:38pm
Mahan Atma (mail):
(To be clear, I'm referring to the panel's discussion of the expectation of privacy re information conveyed through or to a third party, See 490 F.3d 469-477.)
12.9.2008 4:52pm
Dilan Esper (mail) (www):
Mark Field's got his facts right but his analysis wrong.

What MLB and the Players' Union are trying to do is keep secret the evidence that numerous baseball players were cheating. So they made an agreement that was designed to ensure this was the case.

On a policy level, there's no reason whatsoever that the contractual preferences of baseball and the players union that their sport and its top players not be proven to be a bunch of dopers should get any weight at all.

That said, Professor Kerr is right that as a matter of Fourth Amendment law, this issue is not germane to the case.
12.9.2008 5:10pm
MarkField (mail):

On a policy level, there's no reason whatsoever that the contractual preferences of baseball and the players union that their sport and its top players not be proven to be a bunch of dopers should get any weight at all.


It's not clear to me why the federal government is in the business of policing the equality of competition preferences of MLB, particularly when doing so undermines a collective bargaining agreement. Nor is it clear to me why the government should be permitted access to confidential records in order to decide who it might want to investigate. Nor is it clear to me why the government should be allowed to do all that in order to access search results it couldn't have gotten on its own.

And that's putting aside the fact that the government had little business scheduling steroids in the first place.
12.9.2008 6:01pm
Mahan Atma (mail):
"It's not clear to me why the federal government is in the business of policing the equality of competition preferences of MLB, particularly when doing so undermines a collective bargaining agreement."


Won't somebody please think of the children...
12.9.2008 6:20pm
OrinKerr:
Mahan,

If you would like my views on Warshak, I wrote about a dozen posts about that case; you can read them here.
12.9.2008 7:00pm
Dilan Esper (mail) (www):
It's not clear to me why the federal government is in the business of policing the equality of competition preferences of MLB, particularly when doing so undermines a collective bargaining agreement.

Collective bargaining agreements that protect cheaters (who are also likely lawbreakers) aren't worth protecting.

Look, I suppose you can take a "whatever a union does is good" approach to this, but not only is the MLBPA a union of multimillionaires with little to do with normal union issues, but this is a work rules dispute where the interest of the collective bargainers was precisely contrary to the interests of the public.

Again, from a Fourth Amendment standpoint, none of this matters. But if, as a result of an investigation of illegal conduct, we get to find out who cheated, that's a lot more important than upholding a conspiracy / cover-up that happened to be enshrined in a collective bargaining agreement between two groups of very rich people.
12.9.2008 7:21pm
Mahan Atma (mail):
"If you would like my views on Warshak, I wrote about a dozen posts about that case; you can read them here."


Thanks. I saw the post re your procedural objections, but not the substantive ones.

BTW, I ordered a copy of your casebook too. (Albeit a used one.)
12.9.2008 8:08pm
OrinKerr:
Mahan,

Cool. Hope you like it!
12.9.2008 9:14pm
MarkField (mail):

Collective bargaining agreements that protect cheaters (who are also likely lawbreakers) aren't worth protecting.


As far as I know, every collective bargaining agreement ever made provides some form of protection for people who don't deserve it.

As for the users being "cheaters", well that's the whole ballgame right there, isn't it? One "cheats" only if one violates the rules of the game. And that's precisely what the CBA was defining. I don't see any reason why outsiders should get to impose their own definition of "cheating". Personally, I think it's "cheating" for the Dodgers to win any games at all. Ever.


But if, as a result of an investigation of illegal conduct, we get to find out who cheated, that's a lot more important than upholding a conspiracy / cover-up that happened to be enshrined in a collective bargaining agreement between two groups of very rich people.


I'm not so willing to have the government run roughshod over the interests of the parties, particularly when it's not the business of the government to enforce rules against "cheating".

Nor is it accurate to describe the 2002 testing procedures as a "cover-up". To the contrary, they were, as I said above, specifically designed to discover valid information in order to decide what should be done in response. The only way to do that was to assure confidentiality -- otherwise athletes cheat the tests (as we know all too well). The government's behavior here means that nobody will ever learn the facts you claim to want to know.
12.9.2008 10:38pm
Dr. T (mail) (www):
How can you ensure that searches remain narrow given the need to search for the needle in the haystack?

If the data is not encrypted, the task is simple. You search the hard drive for instances of each ballplayer's name and quickly review the documents for relevancy. You do not need to look through every document on the drive. This was a testing lab, not an illegal drug operation, and the results files should be easy to find. In my opinion, the DoJ investigators deliberately 'found' evidence about other ballplayers. Such evidence should be discounted and destroyed.
12.10.2008 10:41am
Dilan Esper (mail) (www):
As for the users being "cheaters", well that's the whole ballgame right there, isn't it? One "cheats" only if one violates the rules of the game. And that's precisely what the CBA was defining.

Actually, not. The CBA only defines what procedures were used to detect cheating. It didn't define the use of steroids as "not cheating", nor could it, because the MLB rules committee, not the collective bargaining agreement, determines the rules of baseball.

Nor is it accurate to describe the 2002 testing procedures as a "cover-up".

Of course they were. The whole point of this procedure was to allow the players a year to transition off the steroids before the suspensions began, without disclosure of their awful activities. That's a year they should have never gotten and only did because they have a powerful union.

Also, bear in mind that it is ILLEGAL to use steroids to enhance baseball performance. As a fundamental principle, collective bargaining agreements that suppress evidence of illegal conduct should NEVER be enforced by the courts.

Finally, just as a general point, collective bargaining isn't sacred. It's just another form of contract between the parties. There's no particular reason to worship it. If the government has good reasons to override a collective bargaining agreement, it should do so. We shouldn't worship work rules just because a union came up with them. Many times (including this time), union work rules have very very bad effects and should be overridden.
12.10.2008 2:36pm
MarkField (mail):

Actually, not. The CBA only defines what procedures were used to detect cheating. It didn't define the use of steroids as "not cheating", nor could it, because the MLB rules committee, not the collective bargaining agreement, determines the rules of baseball.


Agreed. I was giving your side the benefit of the doubt without quibbling about terminology.

MLB has never, even today, made steroid or other drug use "against the rules". Instead, it has dealt with these issues through the CBA. Ordinarily, we don't refer to something as "cheating" unless it's against the rules. Here, it's not against the rules, but I'm willing to consider it as such now that MLB has undertaken to enforce its contractual provisions.

All this is corollary to my original point, which was that the government doesn't get to define "cheating" in MLB. Only MLB gets to do that. And when it does do so, it's not up to the government to enforce the rules. Only MLB gets to do that. The government's ONLY job is to enforce the criminal law.


The whole point of this procedure was to allow the players a year to transition off the steroids before the suspensions began, without disclosure of their awful activities.


You're making this up. The reasons for the provision were stated publicly, but you don't believe them. That's fine for you, but it has nothing to do with whether the government should get into the business of enforcing competition rules in MLB.


Also, bear in mind that it is ILLEGAL to use steroids to enhance baseball performance. As a fundamental principle, collective bargaining agreements that suppress evidence of illegal conduct should NEVER be enforced by the courts.


It's always illegal to use steroids without a prescription, whether to enhance baseball performance or for any other reason.

The CBA was NOT "suppressing" evidence. It was an agreement by players and owners to create evidence that otherwise never would have existed. The government could not have forced the players in 2002 to submit to drug tests. Thus, there's no "suppression" going on here.


Finally, just as a general point, collective bargaining isn't sacred. It's just another form of contract between the parties. There's no particular reason to worship it. If the government has good reasons to override a collective bargaining agreement, it should do so. We shouldn't worship work rules just because a union came up with them. Many times (including this time), union work rules have very very bad effects and should be overridden.


Of course they aren't sacred. That said, they do serve important societal purposes and there should be good reasons for trampling on them. There are none here.
12.10.2008 4:08pm
Dilan Esper (mail) (www):
The CBA was NOT "suppressing" evidence. It was an agreement by players and owners to create evidence that otherwise never would have existed.

So if a union decides to create a record evidencing illegal activity, they get to ensure through mere contractual language that it never be disclosed to the government? Why should unions get this privilege if no other business entity does? Why shouldn't polluters get to refuse to turn over records of their polluting activities?

That said, they do serve important societal purposes

Only to the extent that general contracts do. Unions are just big corporations that look out for their members' self-interests, and their contracts reflect that. They should get no special privileges whatsoever.

As for the rest of your post, sorry, but steroid use has been banned by edict of the commissioner since at least 2002, before the collective bargaining process that you are referencing. There just weren't any penalties.

Finally, I can't help but comment that you seem to think that preserving the power of unions and ensuring that collective bargaining agreements aren't trampled upon is more important than informing baseball fans of who was actually cheating. I think that's terribly sad. The union and the owners were sheltering dopers for a long time. Getting these names out at least allows some rough justice to be imposed. Keeping them secret, meanwhile, upholds the principle that it's OK to break the law and bend the rules to win. But hey, it's not worth stepping on one of those sacred union contracts to do anything about that, right?
12.10.2008 6:35pm
MarkField (mail):

So if a union decides to create a record evidencing illegal activity, they get to ensure through mere contractual language that it never be disclosed to the government?


This makes no sense in context. The MLBPA did not violate any drug law here. It was the individual players who presumably did. Those players didn't have to agree to submit to drug testing, but they did so under a promise of confidentiality. Now the government is stepping into the situation and violating that promise. That's not precisely the case where an employer acts on the government's behalf, but it's pretty close.

I'm leaving aside other issues here that have been noted, such as the ease of separating out those players for whom they had a warrant, the justification for the evidence, etc.


Only to the extent that general contracts do. Unions are just big corporations that look out for their members' self-interests, and their contracts reflect that. They should get no special privileges whatsoever.


I'm kind of surprised to find you union-bashing. Nevertheless, what's at issue here is NOT some privilege for a union, it's a right of the individual members. Again, they didn't have to agree; they did so as part of a bargain with their employer (who also agreed, yet another reason not to harp on the MLBPA). Now the players have lost the benefit of that bargain.


As for the rest of your post, sorry, but steroid use has been banned by edict of the commissioner since at least 2002, before the collective bargaining process that you are referencing. There just weren't any penalties.


The commissioner couldn't ban them by himself. It was a subject of collective bargaining -- that was established in the cocaine cases in the 1980s. In any event, "banning" something with no penalty is meaningless.

Your argument also suffers from some serious chronology problems and some logical issues you may not accept. The commissioner's office issued its first edict against steroids in about 1989 (I'm going off memory). It was widely recognized then and after that the Commissioner had no power to issue this ukase.

The 1991 CBA (again off memory) generally prohibited the use of scheduled drugs (which steroids became shortly thereafter). Note that these "bans" remained unenforced and unenforceable both as to steroids and as to the more widely used amphetamines. By your logic, the use of amphetamines was "cheating" despite the fact that probably 85% of the players used them and that every single ML team not only knew of their use, but winked at it. The use of steroids was "cheating" despite clear evidence that MLB knew about the use and did nothing to stop it.


I can't help but comment that you seem to think that preserving the power of unions and ensuring that collective bargaining agreements aren't trampled upon is more important than informing baseball fans of who was actually cheating.


Well, yeah. I don't think the government should be in the business of telling me which MLB players were using steroids. It's sole job is to enforce the drug laws. If the government really wants to expose athletes, it should be going after the NFL. At a first approximation, 100% of them are using.

Moreover, there's one way and one way only to actually learn who was using steroids: take away the stigma. Then players will be free to admit what they did and we can all move on. Imposing criminal penalties will ensure that we NEVER get the information you claim to want.

Finally, you're just imposing your own values on others. Use of steroids and amphetamines was NOT cheating, no matter how many times you say it, as long as they weren't against the rules and the teams and players knew about them and did nothing to stop them.
12.10.2008 7:28pm
Dilan Esper (mail) (www):
This makes no sense in context. The MLBPA did not violate any drug law here. It was the individual players who presumably did. Those players didn't have to agree to submit to drug testing, but they did so under a promise of confidentiality.

That's true enough, but the question is whether private agreements to disclose illegal, rule-breaking conduct to one's employer under a promise of confidentiality should be enoforceable against the interests of the public and the government. And there's no reason to think that it should.

The commissioner's office issued its first edict against steroids in about 1989 (I'm going off memory). It was widely recognized then and after that the Commissioner had no power to issue this ukase.

What do you mean "no power"? The commissioner clearly has the power to determine whether steroids are permissible in baseball. What the commissioner doesn't have the power to do is impose unilateral discipline on the players (unless he determines it is in the "best interest of baseball"-- a big exception actually, but that's another story).

So steroids were clearly cheating as of 1989. They were cheating as of 2002. But the players' union decided to obtain contractual protections protecting the cheaters and lawbreakers. As far as the government is concerned, those contractual protections should be ignored. (Indeed, I don't think that they would even be enforceable if MLB decided to breach them, but that's another discussion.)

By your logic, the use of amphetamines was "cheating" despite the fact that probably 85% of the players used them and that every single ML team not only knew of their use, but winked at it.

Well, let's put it this way. The issue here isn't whether baseball was doing all it could to stop cheating. The issue here is whether we should honor private contractual agreements conveniently entered into by a union to protect the identity of lawbreakers and cheaters. The answer to THAT question is "no", whether or not baseball's efforts were serious.

Well, yeah. I don't think the government should be in the business of telling me which MLB players were using steroids. It's sole job is to enforce the drug laws. If the government really wants to expose athletes, it should be going after the NFL. At a first approximation, 100% of them are using.

Government IS enforcing the drug laws. As part of that enforcement, it has to override the desires of a greedy players' union that the cheaters not be exposed. But if there were no investigation of illegal conduct, those identities would have been protected.

Finally, you're just imposing your own values on others. Use of steroids and amphetamines was NOT cheating, no matter how many times you say it, as long as they weren't against the rules and the teams and players knew about them and did nothing to stop them.

These are not "my" values. Indeed, YOUR values are seriously off. Doping is not some minor thing. Lyle Alzado DIED because of steroids. Is that what you want?

International law prohibits doping in sporting contests. Federal law prohibits the prescription or use of these drugs for the purpose of enhancing performance in a sporting contest. This is cheating.

If you would like to live in an alternate reality where athletes can kill themselves with performance enhancers and hit 100 home runs in a season, I'm sorry, but that isn't the world we live in. And in the world we do live in, these people cheated and the union is trying to protect them. Screw the union and screw them.
12.10.2008 8:26pm
MarkField (mail):

the question is whether private agreements to disclose illegal, rule-breaking conduct to one's employer under a promise of confidentiality should be enoforceable against the interests of the public and the government. And there's no reason to think that it should.


I think there has to be a balance of factors here. The way I see it, steroid use is a malum prohibitum crime which injures nobody but the user. Collective bargaining agreements are generally good things which I want to encourage. I like the idea of the affected parties working to solve the problem. I don't like the idea of the government trying to take advantage of good faith disclosures to obtain evidence which it was prohibited from getting on its own. I don't think the government is being honest about the difficulty of particularizing the search. I don't think the government has any real interest in prosecuting the steroid users; to the contrary, the whole investigation seems to be directed at using government power to achieve public shaming. Altogether, that's not a balance that overcomes the other interests.


What do you mean "no power"? The commissioner clearly has the power to determine whether steroids are permissible in baseball.


I meant what I said and I said what I meant. The Commissioner had NO POWER to determine whether steroids were permissible in MLB. That was expressly decided in the cocaine cases. It's not just a question of being able to punish (which, by the way, MLB made no effort to do). The Commissioner has no such power. Period. It's subject to collective bargaining, not unilateral implementation.

I'm surprised to see you make this claim. MLB itself always admitted it -- that's why there was, eventually, a new CBA provision which covered this.


So steroids were clearly cheating as of 1989. They were cheating as of 2002.


Since the Commissioner lacked the power you claim, the premise for your argument falls apart. But let's explore the issue of cheating a little more.

IMO, cheating consists of (a) a rules violation (b) which the sport makes a good faith effort to punish and (c) which is generally considered cheating by the participants. The last provision is necessary to distinguish "cheating" from a simple violation of the rules. For example, running outside the baseline is a violation of the rules, but nobody refers to it as "cheating".

I've shown above that there was no rules violation here (and that's even with my concession to treat the CBA as a "rule" even though it's not).

Nor did MLB, at any time before 2003, make any effort whatsoever to punish the use of performance enhancing drugs. It was like the phantom tag at second base or the high strike -- there may have been a rule (in your view), but everyone ignored it. In fact, your claim of power in the Commissioner just makes this element worse from your perspective. Now, if the Commissioner didn't know about the steroid use, that might be different. But there's overwhelming evidence that he did know and that the owners knew as well.

Nor did the players themselves treat PED use as cheating. They all knew it was going on; some estimates are that 70% of players at least tried steroids, lots of players have since admitted that they knew it was going on, and amphetamine use was rampant and open. While I wouldn't expect players to call attention to cheating on their own teams, they kept quiet even about use on other teams. That's not the sign of a culture in which PED use was considered improper.


But the players' union decided to obtain contractual protections protecting the cheaters and lawbreakers.


I have no idea what you're referring to here. A testing regimen is designed to catch users, not hide them. There never were any "protections" against use.

You can, of course, criticize the MLBPA for being slow to agree to the testing, but then MLB was slow to ask. Of course, if you take the view that MLB could have implemented anti-drug provisions unilaterally, then you have no basis for criticizing the union.


Government IS enforcing the drug laws.


Your previous posts indicated approval of the fact that the government would expose "cheaters". That's not the government's role or purpose. Exposure is merely a collateral effect, not a purpose.


These are not "my" values.


As I've shown above, your views on the issue of PEDs were neither shared nor enforced by MLB prior to 2003. They may have been (probably were) the majority among fans, but not among the players and management of the game.


Lyle Alzado DIED because of steroids.


This is commonly said, but there's no medical evidence it's true.

I'm not sure what the point is to this claim. Steroids are already illegal and we're not debating that (though I'll note that the AMA opposed the decision to schedule them).


International law prohibits doping in sporting contests.


I'm not aware of any such law. In fact, steroids seem to be easily available in many countries. AFAIK, the restrictions are imposed by each individual sport, not by any "law". Do you have a cite?


Federal law prohibits the prescription or use of these drugs for the purpose of enhancing performance in a sporting contest.


As I said above, this is not correct. Federal law prohibits the possession and distribution of scheduled drugs without a prescription. It says nothing specific about use in a sporting contest (or at least, it didn't say any such thing during the time period we're discussing).
12.10.2008 11:35pm
Dilan Esper (mail) (www):
Collective bargaining agreements are generally good things which I want to encourage.

No, they aren't. Sometimes, collective bargaining agreements are good things that raise wages and protect workers. Other times, they are bad things that impose work rules and kill off businesses. They are morally neutral, just like all contracts, and should not be encouraged or discouraged. And when they have the effect of protecting wrongful conduct, they should be ignored completely or vitiated.

I don't think the government has any real interest in prosecuting the steroid users; to the contrary, the whole investigation seems to be directed at using government power to achieve public shaming.

That's often true of prosecutions. But I would also add this-- the World Anti-Doping protocol isn't a figment of anyone's imagination. This nation has cooperated in multinational efforts to fight doping in sports. One could say that we should be a persistent objector to such things. But why would we want to be?

The truth is that doping, unlike other forms of drug use, doesn't just harm the user. It also harms all the other competitors, who are forced to also dope to keep up. That makes it a lot different. The reason that nations have universally recognized the need to stop doping in competition is because otherwise, the health of all the competitors-- even those who would never cheat in an environment where nobody else is-- suffers. In any event, this is the judgment that the US and the international community has made, and you are not at liberty to ignore it when analyzing whether the government action is fair.

Federal law prohibits the possession and distribution of scheduled drugs without a prescription. It says nothing specific about use in a sporting contest (or at least, it didn't say any such thing during the time period we're discussing).

Federal law also prohibits prescribing a scheduled drug for a non-medical purpose. That means no prescriptions for the purpose of performance enhancement in a sporting contest.

There are people in jail because of the BALCO scandal. Obviously the argument that it's not really illegal has been tested and has failed.

Look, the bottom line is that you think the entire enterprise of stopping cheating in sports is wrong. If the union decides that what they really want is for their members to be able to dope, that's what should count. And the federal government should use its prosecutorial discretion to let them do it. And to top it off, you deny that steroids are even dangerous!

Thank God you have no authority over these issues.
12.11.2008 2:14pm
MarkField (mail):

The truth is that doping, unlike other forms of drug use, doesn't just harm the user. It also harms all the other competitors, who are forced to also dope to keep up. That makes it a lot different. The reason that nations have universally recognized the need to stop doping in competition is because otherwise, the health of all the competitors-- even those who would never cheat in an environment where nobody else is-- suffers. In any event, this is the judgment that the US and the international community has made, and you are not at liberty to ignore it when analyzing whether the government action is fair.


Putting aside some other problems I have with your claims here, let me focus on just 2:

1. It's not the government's business to regulate competition rules in sport. It is the government's business to enforce the drug laws. What I'm talking about is motivation here.

2. Your argument would be more persuasive if, in fact, there were any evidence that these drugs actually enhance performance. While it's logical to think they do, and while lots of people scream that "of course" they do, there's no actual scientific evidence that they do. One reason there's no such evidence is that the current drug laws discourage such research.


Federal law also prohibits prescribing a scheduled drug for a non-medical purpose. That means no prescriptions for the purpose of performance enhancement in a sporting contest.


That's debatable. Steroids enhance recovery for athletes, whether from injury or simple fatigue (as amphetamines do). Those might well be seen as just as legitimate as a cortisone shot.

But the real reason I'm contesting your phraseology here is that it reads as if you think that federal law makes some specific reference to the use of drugs in sporting events. AFAIK, it does not. Thus, yet again, the government has no legitimate reason to be enforcing "clean competition" in sports as a goal. It's only legitimate goal is to enforce the drug laws.


There are people in jail because of the BALCO scandal. Obviously the argument that it's not really illegal has been tested and has failed.


I don't know of anyone who made such an argument. I certainly am not making it.


Look, the bottom line is that you think the entire enterprise of stopping cheating in sports is wrong.


No, this completely mischaracterizes my position. I have no problem with MLB regulating itself. My position is that the government has no special brief to do so. Baseball players aren't pilots, where safety factors might justify government intervention. They're entertainers. If the government happens to arrest some ballplayers for violating drug laws, fine by me. But that's an incidental consequence of the government's actual role, not a goal in and of itself.


If the union decides that what they really want is for their members to be able to dope, that's what should count.


Again, this misstates my position. In the first place, the union agreed to testing. That's the opposite of "wanting members to dope". Second, I don't believe that, even if the union did "want" its members to "dope", the federal government would have to respect that. The government can and should enforce the drug laws. What it should not do is police the business of MLB. Though if it really wants to go where the bank robbers are (to paraphrase John Dillinger), it should be shutting down the NFL.


And to top it off, you deny that steroids are even dangerous!


I'd call that a radical interpretation of the text. Denying that medical evidence supports the claim that Alzado's brain cancer was caused by steroids hardly amounts to a blanket exoneration of them.

Look, steroids get used all the time for legitimate medical purposes. HGH, the latest in the "let's ban them" craze, gets prescribed to children -- think of the children!! -- for no reason other than that they're short. The risks obviously aren't as great as the hysterics want us to believe.

That said, every drug has side effects and I'm not denying that steroids do also.
12.11.2008 3:51pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.