The use of performance enhancing drugs has tarnished Major League Baseball’s reputation. Barry Bonds, Mark McGuire, Sammy Sosa and Roger Clemens all performed at levels during their careers where under normal circumstances they would be shoe-ins for the hall of fame. Each of them accumulated statistics that satisfy at least one of the major milestone requirements that make a player a sure candidate for the hall of fame: 500 homeruns, 3000 strikeouts, the 300 wins, and the 3000 hits. While it isn’t a guarantee for players who are members of one or more of these clubs to be voted into the hall of fame, historical evidence suggests that it may as well be. None of these players are or ever will be a part of baseball immortality. This is because players who have been linked to performance enhancing are not seen as worthy of the hall of fame. I am going to discuss whether or not it was ethical for the Mitchell Report to release the names of players linked to performance enhancing drugs. I will also discuss whether it was ethical for the list of the names of players who tested positive during the 2003 survey testing to have been leaked to the media.
Barry Bonds. The Yankees. Major League Baseball (MLB). When people think about steroids and other performance enhancing drugs (PEDs) these are all things that come to mind. In fact, steroids have played such a large role in MLB that there is even an era for them. The “Steroids Era” is defined by ESPN as:
A period of time in Major League Baseball when a number of players were believed to have used performance enhancing drugs, resulting in increased offensive output throughout the game […] generally considered to have run from the late ’80s through the late 2000s.(http://espn.go.com/mlb/topics/_/page/the-steroids-era, November 26, 2014)
While drug use and drug testing have been on MLB’s radar since 1986, they took a backseat to what were seen as more pressing issues like the economy of baseball, salary caps, and hitting more home runs. The Major League Baseball Players Association, the union of professional MLB players, was initially opposed to randomly drug testing for steroids or other substances. In 1991, Fay Vincent, the MLB commissioner at the time, released a memo addressing the MLB drug policy:
The possession, sale or use of any illegal drug or controlled substance by Major League players and personnel is strictly prohibited. Major League players or personnel involved in the possession, sale or use of any illegal drug or controlled substance are subject to discipline by the Commissioner and risk permanent expulsion from the game.
This prohibition applies to all illegal drugs and controlled substances, including steroids or prescription drugs for which the individual in possession of the drug does not have a prescription.
Despite this explicit statement that PEDs are not allowed in MLB, steroid use persisted. In fact, many managers do not remember this memo at all. Without drug testing within the major leagues, the memo went unenforced.
Accurately assessing how many players were using steroids and other PEDs during the steroid ERA was not possible without drug testing. In 2002, the commissioner of baseball, Bud Selig, proposed a joint drug prevention and treatment program. This program proposed that all MLB players “would be subject to up to three random drug tests each year; an initial failed test would be met with treatment rather than a suspension; and repeat offenders would be subject to discipline”(Mitchell, 51). Public scrutiny of players using PEDs had finally reached a breaking point and the Players Association agreed to player drug testing within the Commissioner’s Office’s proposed terms. While the Players Association agreed to this testing, it was not without voicing concerns of privacy invasion.
The program began in 2003 with “Survey Testing” which were to be anonymous and would carry no punishments. This was a preliminary scan to determine how many players were using PEDs. Baseball would only move forward in their joint drug prevention and treatment program if more than 5 percent of the league was using. On November 13, 2003, MLB released that between 5 and 7 percent of 1,438 samples in the survey tested positive for steroids. This result triggered the next step of random drug testing which began in 2004. “All players on the 40-man rosters were randomly selected for testing at unannounced times, and 240 randomly selected players were tested a second time on an unannounced basis”(Schlegel, 2009).
In December of 2004, the Players Association announced that it was going to prioritize the steroid issue within baseball in response to Jason Giambi and Barry Bond’s testimonies in the Bay Area Laboratory Co-operative (BALCO) case. The BALCO case was directly related to professional athletes’ use of banned, performance-enhancing substances provided by BALCO. Giambi testified “he had injected himself with human growth hormone during the 2003 baseball season and had started using steroids at least two years earlier”(). Bond’s testimony was similar except he said that he did not know that the substances he used were steroids at the time.
MLB commissioner Bud Selig urged the Players Association to consider a stricter PED policy which then union chief Donald Fehr agreed to. MLB and the Players Association decided on new punishments for offenders of the drug policy. There was to be a 10-day ban for first-time offenders, 30-day ban for second time offenders, 60-day ban for third time offenders, and one-year ban for fourth-time offenders. In addition, first-time offenders were to have their names made public.
This policy did not completely stop players from using PEDs though. During the 2005 season there were twelve suspensions. Players were still using and the 10-day suspension for first time offenders was not enough to stop them. Immediately after the 2005 season, MLB and the Players Association agreed to new penalties for those players caught using. First-time offenders were to receive a 50-game suspension, second-time offenders a 100-game suspension, and third-time offenders a lifetime ban from MLB.
The Mitchell Report and “the list”:
In addition to the new penalties, in March of 2006 Bud Selig appointed Maine Senator George Mitchell to head an investigation into the history of PEDs in baseball. Mitchell produced a report officially named “The Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball.”
The Mitchell Report is the informal name of the report produced after Mitchell’s 21-month investigation into the use of steroids and other performance enhancing drugs in major league baseball. The purpose of the report was to figure out how and why MLB’s drug PED problem emerged. What Mitchell discovered is that while the use of steroids and other urine-detectable drugs has decreased, players have been switching to human growth hormones because they are not detectable. The report identifies some of the major sources that major league players were purchasing these controlled and illegal substances from. “Kirk Radomski, a former New York Mets clubhouse employee,  was a significant source of illegal performance enhancing substances until late 2005”(Mitchell Report, SR-2). Greg Anderson, a former personal trainer of Barry Bonds, distributed steroids to numerous MLB players including Benito Santiago, Gary Sheffield, Marvin Bernard, Bobby Estella, Armando Rios, Jason Giambi, and Randy Verlarde in addition to Bonds.
The report goes into detail on the investigation of various players Mitchell found linked to performance enhancing substances. Mitchell states in his report that “from the outset, [his] objective in [the] investigation [was] to gather facts to prepare a report that is thorough, accurate and fair, and to provide those who’s reputations have been or might be called into question by these allegations a fair opportunity to be heard” (Mitchell, 148). Every player Mitchell and his team investigated was given the opportunity to meet with Mitchell himself, his personal lawyer, and a lawyer from the Players Association so that Mitchell could “provide him with information about the allegations against him and give him the opportunity to respond”(Mitchell, 148). Most players declined to meet with Mitchell.
The report discloses that in April of 2004 federal agents “seized data from which they believed they could determine the identities of the major league players who had tested positive during [the 2003 season’s] anonymous survey testing”(Mitchell Report, 281). In response, the Players Association and the Commissioner’s Office agreed to suspend drug testing on those affected players while the government proceeded with its investigation. The Players Association was permitted to advise the players who tested positive in 2003 that the survey testing information was in the hands of the government but not that the players would not be tested.
The data seized contained the names of the players who tested positive in 2003 and is referred to as “the List.” It gained much attention in 2009 when some of the big names on it like Alex Rodriguez, Manny Ramirez, David Ortiz and Sammy Sosa were leaked to the public by major media outlets.
In response to the data seizure in 2004, the Players Association sued and won the initial case on the basis that the seizure was against the players Fourth Amendment rights.
Deontological Ethical Analysis:
During this analysis I want to look at the disclosure of two different lists of players names: the players named in Mitchell’s report to Bud Selig, and the players named in “the List.” I want to determine if it was ethical to disclose them from a deontological ethics perspective.
Deontology is centered on right and wrong. Ethical actions are those that abide by the rules. It does not matter how much good an action may bring about if the action itself is a breach of duty, breach of an obligation, illegal, or against what society perceives to be right. “Certain actions can be right even though not maximizing of good consequences, for the rightness of such actions consists in their instantiating certain norms”(Alexander, 2012).
When examining the Mitchell Report, it is important to look at whose duty it was to investigate the players’ use of steroids and other PEDs. As the commissioner of MLB it was Bud Selig’s duty. In response to that duty, Selig enlisted Mitchell’s help with the purpose of exposing who was violating the drug policy and how they were acquiring the illicit substances in order to better understand how to combat steroid abuse in the future. Was it then Selig and Mitchell’s duty to go public with the information discovered?
The drug policy that was put into place beginning in 2004 stated that all first-time offenders names would be publicized. It was therefore Selig’s duty to report all players who tested positive for PEDs beginning after 2004. Mitchell was also very careful within his report to maintain confidentiality when required by agreements Selig made with the Players Association and ongoing federal investigations. This included maintaining confidentiality of the names of players who tested positive for PEDs during the 2003 survey testing. It can be assumed then that the names included in the Mitchell Report were disclosed ethically.
When examining the List from the 2003 survey testing we must not only examine whether media sources who published names from the list did so ethically, but also whether the Players Association was ethical in notifying the players on the List that the federal government was in possession of it.
The Players Association was not ethical as they had an obligation of confidentiality which they abandoned. It does not matter that the Players Association only notified those people on the list as they still revealed confidential material to unauthorized persons. It also does not matter if it was better for the players to know that the government may approach them about this data because the act of disclosing the information itself was a breach of duty.
In the case of the media outlets that went public with the names of certain members of the list, we must examine the players rights to privacy. During the 2003 survey testing, the players who tested positive had the right to remain unidentified. It was therefore unethical to rake away that right by disclosing the players’ names. We need not examine the fact that players are considered public figures as the terms of testing that the players association agreed to required that survey testing be kept anonymous. They should never have been released to the public in the first place.
Bud Selig, the Players Association, and all of MLB are intent on restoring baseballs tarnished reputation. While they may be fighting a battle against a group of substances that are expanding continuously and becoming easier to acquire they must still combat the issue ethically. Fighting an issue that is inherently unethical with unethical approaches will only exacerbate the situation. While steroid use has declined since the instatement of drug testing, the use of human growth hormones has been rising steadily. MLB has already begun brainstorming ways to confront this new issue and I am excited for the day when the steroid era has ended.
Alexander, Larry, and Michael Moore. “Deontological Ethics.” The Stanford Encyclopedia of Philosophy (2012) http://seop.illc.uva.nl/entries/ethics-deontological/.
Ellis, Anthony. “Deontology, Incommensurability and the Arbitrary.” Philosophy and Phenomenological Research 52.4 (1992): 855. Print.
ESPN.com,http://espn.go.com/mlb/topics/_/page/the-steroids-era, accessed on November 26, 2014
Fainaru-Wada, Mark and Williams Lance, “Giambi admitted taking steroids”SFGate.com(2004) http://www.sfgate.com/sports/article/Giambi-admitted-taking-steroids-2631890.php
Mitchell, George. The Report to the Commissioner of Baseball of an Independent Investigation into the Illegal use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball., 2007. Print.
Schelgel, Jason. “Time line of ‘The List.” MLB.com(2009) http://mlb.mlb.com/news/print.jsp?ymd=20090730&content_id=6157972&fext=.jsp&c_id=mlb