Anti-Doping in Major League Baseball

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Hendel2 Introduction ing but still-active superstar of the New by government agents investigating a Baseball is America’s national pastime, York Yankees, Alex Rodriguez, will trig- notorious San Francisco laboratory – al- and one of the “big three” sports in this ger soul-searching and debate from a though the searches and thus the material sports-crazed country. Basketball and multitude of perspectives. The debate will and information seized were ultimately American football may well be better- dwarf that involving Lance Armstrong declared unlawful in light of constitution- suited to televised viewing and the fast- and the notorious world of professional al privacy concerns – showed that many paced, connected, You-Tubed world of the cycling. Cycling, after all, is a minor, re- leading players (some of whom testified twenty-first century. But the “grand old sidual sport in the U.S., and Armstrong before a grand jury in December 2003 game” of baseball continues to represent was a relatively little-known and retired to provide prosecutors with evidence of something special in American sport and athlete when his case exploded. But base- BALCO’s alleged sale of anabolic ster- society. No other sport in the U.S. is the ball is different. It is America’s game. The oids) were involved in steroid use. subject of an even remotely-similar quan- Yankees are America’s team. And Alex tity and especially quality of literary3 and Rodriguez (a/k/a “A-Rod”, but now deri- With this, the issue of PEDs in baseball cinematographic works. No other sport sively referred to as “A-Roid”) is one of and American professional sports gener- tugs so strongly on the American soul. No the sport’s biggest and highest-paid stars. ally became acute.6 In January 2004, Presi- other sport can legitimately be referred to dent G.W. Bush addressed the issue in a as forming “part of America’s social fab- Properly understanding the origins of the memorable State of the Union Address, ric in deep, almost mystical ways”4. “A-Roid” case, so as to be able to extract in which he called on professional sports meaningful lessons from it, requires a re- leagues and athletes to set better examples The structure and regulation of American view of the recent relation between doping for children and to rid themselves of PEDs. sport diverges in important respects from and U.S. professional sports, in particular that of world sport generally. Professional Major League Baseball (MLB). Now elevated to an issue of national po- sport tends to be viewed and regulated in litical interest, Congress responded by the U.S. as a business or form of entertain- proposing various bills aimed at eliminat- ment, with little or none of the pyramidal The “steroid era” in Major League ing the use of PEDs in sports. Each sought structure or social and other values that baseball – essentially for the purposes of protecting characterize prevailing conceptions of the integrity of sport and protecting youth sport globally. Anti-doping rules and pro- Reports of illegal use of anabolic steroids from the dangerous use of steroids – uni- cedures are addressed by league-specific and other performance enhancing drugs form regulation of drug-testing policies in collective bargaining agreements between (PEDs) in baseball became increasingly the principal American professional sports players and owners, and not by univer- frequent in the 1990’s, when among the leagues. But each differed in details as to sal, uniform systems under the aegis of players suspected of steroid use were testing, prohibited substances, sanctions an independent or ostensibly independent those battling for, establishing and explod- and other aspects.7 agency. Even U.S. scholastic and colle- ing single-season home run records which giate competitions apply their own anti- had stood untouched and unapproached In tandem, the professional sports leagues doping rules and procedures, incorporat- for decades. (accused of having closed their eyes to ing and applying those that are typically in doping practices, at best, and even of hav- force globally only in Olympic sports and The issue soon became even more visible ing aided and abetted these practices, at only for athletes aiming at participation in and complex from a legal perspective. worst) acted to stiffen their anti-doping Olympic competitions.5 In the “BALCO” case of the late 1990’s, rules. It is here where critical specificities searches and seizures of the results of drug of the American constitutional and legal The recent doping case involving the ag- tests of players carried out under warrant system enter into play. 18 June 2014 © Nolot Constitutional implications of congres- courts have determined in other cases – These authors find in their assertions of sional legislation – The Fourth Amend- enjoy diminished or limited expectations conflict of interest a particularly damning ment of privacy so as shift the balance of con- condemnation of the CBA system’s effec- stitutionality in favor of the search, is far tiveness: The Fourth Amendment to the United from clear. The fact that the cases apply- States Constitution protects “[t]he right ing this exception have tended to involve “Both owners and players financially of the people to be secure in their person, people and occupations having a clear and benefit from doping. Players that dope houses, papers and effects against unrea- direct effect on public safety suggests that usually perform better. The better the sonable searches and seizures”8. It is the the “special needs” exception might be athletes perform, the more revenue the benchmark against which the validity of hard to satisfy in the case of congression- owners make. The more revenue owners Congressionally-mandated blood or urine ally-mandated drug testing of professional make, the more valuable players are to testing of athletes (the critical feature of athletes. their owners. The more valuable players any anti-doping policy) would have to be are, the higher their salaries are.”12 tested. U.S. labor law implications – the Other authors advocate the opposing view There can be no doubt that a blood or collective bargaining system for reasons going beyond the constitution- urine test must be considered a “search” or al issues involved in a congressionally- “seizure”. The question, then, is whether Under the U.S. National Labor Relations mandated policy. One13 argues that CBA- random blood or urine tests should be con- Act, all terms and conditions of employ- based policies would: sidered reasonable for Fourth Amendment ment in industries engaged in or affecting purposes, where not based on specific, in- interstate commerce are subject to col- a give both parties an “ownership” of the dividualized suspicion. This involves two lective bargaining in good faith between policy, strengthening its acceptance; hotly-debated issues. the employees (represented by unions in b potentially provide for rapid response to the case of unionized industries, such as developments in doping and anti-doping – First, whether a governmentally-man- professional sports, including the Major technology; dated policy of suspicionless drug test- League Baseball Players Association, or c permit sport-specific regulation taking ing by a private party employer (in this MLBPA, in the case of baseball) and the account of difference between leagues case, MLB) converts the private party employer (here, the clubs as part of MLB). and sports; and into an “instrument” or “agent” of the d avoid distracting Congress’s attention government for Fourth Amendment pur- Drug testing, then, is by law a manda- from more pressing issues than regulat- poses. This question involves a determi- tory subject of private collective bargaining drug testing in sports. nation, “in light of all the circumstanc- ing in U.S. professional sports: a league es” of a particular case, of the “degree or team may not unilaterally implement Another14 similarly argues that: of the Government’s participation in the a drug testing policy, but rather such a private party’s activities”, i.e., applica- policy must be collectively bargained for a those most affected by the policies are tion of the so-called “state action” test.9 between the players’ union and the league. in the best position to collectively bargain on the rules and regulations by – And second, once the state action test As a result, the terms of a sport’s appli- which they themselves will be affected; is satisfied, whether in application of a cable collective bargaining agreement b unionized bargaining takes into consid- balancing test developed by the courts, (CBA), and the process and climate under eration many aspects of business that the search can be considered reason- which these terms can be changed, be- any “external” regulation would ignore; able without individualized suspicion. come the critical element of anti-doping and This involves a determination as to the policy and enforcement in U.S. profes- c collective bargaining would likely lead existence of “special needs”, i.e., a sub- sional sports.

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