Pace Intellectual Property, Sports & Entertainment Law Forum Volume 3 Issue 1 Spring 2013 Article 3 April 2013 Separation of Sport and State: The Federal Government’s Involvement in Major League Baseball’s Drug Testing Program Anthony F. Iliakostas New York Law School Follow this and additional works at: https://digitalcommons.pace.edu/pipself Part of the Entertainment, Arts, and Sports Law Commons Recommended Citation Anthony F. Iliakostas, Separation of Sport and State: The Federal Government’s Involvement in Major League Baseball’s Drug Testing Program, 3 Pace. Intell. Prop. Sports & Ent. L.F. 40 (2013). Available at: https://digitalcommons.pace.edu/pipself/vol3/iss1/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Intellectual Property, Sports & Entertainment Law Forum by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Separation of Sport and State: The Federal Government’s Involvement in Major League Baseball’s Drug Testing Program Abstract Major League Baseball has been one of the premier major sports leagues in taking action and putting an end to the use of performance-enhancing drugs in baseball. Entering its eighth year, Major League Baseball has implemented and improved its drug-testing policy. However, with congressional hearings on the use of steroids and other drugs in baseball along with federal investigations, there is a lingering worry that the government is intervening in Major League Baseball's drug testing program. In this article, Anthony Iliakostas breaks down Major League Baseball's drug testing program and how the U.S. government has gotten involved. The article concludes by answering the ultimate question: should the government intervene in Major League Baseball's drug testing program? Keywords baseball, steroids, drug testing This article is available in Pace Intellectual Property, Sports & Entertainment Law Forum: https://digitalcommons.pace.edu/pipself/vol3/iss1/3 40 PACE I.P., SPORTS & ENTERTAINMENT LAW FORUM [Vol. 3 SEPARATION OF SPORT AND STATE: THE FEDERAL GOVERNMENT’S INVOLVEMENT IN MAJOR LEAGUE BASEBALL’S DRUG TESTING PROGRAM Anthony F. Iliakostas* I. Introduction The 2012 Major League Baseball season was the picture perfect season for a baseball player like San Francisco Giants outfielder Melky Cabrera. Cabrera has had his fair share of time on the baseball field. Prior to the 2012 season, Cabrera, who coined the nickname “Melk Man,” played with the New York Yankees, the Atlanta Braves and the Kansas City Royals, respectively.1 Since becoming a major leaguer in 2005, he amassed 54 home runs, 357 runs batted in and had a career batting average of .277.2 His best year up to the 2012 season was in the season prior, when Cabrera had a .305 batting average, hit 18 home runs and drove in 87 runs.3 In the 2012 season, Cabrera was playing the best baseball any player could ask for. He instantly became a fan-favorite as he was selected to be a starting outfielder for the National *Anthony F. Iliakostas is a second-year law school student at New York Law School with an interest in practicing in an area of sports law in the future. Mr. Iliakostas is a member of the New York Law School Sports Law Society and has been afforded the opportunity to organize the 5th Annual Sports Law Symposium at New York Law School in 2013. In addition to playing an active role in his law school’s sports law society, Mr. Iliakostas has also founded a sports law video blog called “Law and Batting Order,” which you can visit by going to www.lawandbattingorder.com. Mr. Iliakostas conducts all the legal research and writing in preparation for his web- show, which airs every second and fourth Sunday of the month, as well as filming, editing, and publishing each episode on his own. “Law and Batting Order” covers various legal topics in the world of sports, from the pending NFL concussion litigation to legal issues as simple as breach of contract involving an athlete. Mr. Iliakostas has also had the privilege of interviewing numerous guests on “Law and Batting Order” including Darren Heitner of SportsAgentBlog.com and Forbes.com, Paul D. Anderson of NFLConcussionLitigation.com, ESPN Investigative Reporter Mark Fainaru-Wada, and rising sports law star Benjamin Haynes, who writes on a frequent basis for SportsAgentBlog.com, SportInLaw.com, and Forbes.com. Mr. Iliakostas hopes that “Law and Batting Order” will pave a promising path for him in the world of sports law. 1 Melky Cabrera Statistics and History, BASEBALLREFERENCE.COM, http://www.baseball- reference.com/players/c/cabreme01.shtml (last visited Sept. 29, 2012). 2 Id. 3 Id. 2013] SEPARATION OF SPORT AND STATE 41 League All-Star team after collecting over 7 million votes from fans.4 By the All-Star Break, Cabrera had a commanding lead in the National League in hits with 119; he also had a .353 batting average.5 His on-field performance showed at the All-Star Game as Cabrera helped the National League shut-out the American League.6 His performance also led to his receipt of the All-Star Game MVP award.7 By August 14th, Cabrera led the National League with a .346 batting average while also driving in 60 runs and hitting 11 home runs.8 Cabrera’s statistics showed that he was one of the best players in the league. Since he would be a free agent after the 2012 season, Cabrera’s recent performance guaranteed him a five or six year deal with the potential of receiving around $15 million per year.9 However, this all changed on August 15, 2012. It was on the aforementioned date that Major League Baseball announced that Melky Cabrera tested positive for elevated levels of testosterone.10 Because Cabrera tested positive for a performance-enhancing drug that is banned under Major League Baseball’s drug testing policy, he was suspended for 50 games.11 Cabrera’s suspension carried into the postseason, thus making him ineffective for the remainder of the regular season.12 4 2012 All-Star Game starters announced, MLB.COM (July 1, 2012, 1:50 PM), http://mlb.mlb.com/news/article.jsp?ymd=20120701&content_id=34266298&vkey=pr_mlb&c_id=mlb. 5 Lyle Spencer, Melky delivers, earns All-Star MVP honors, MLB.COM (July 11, 2012, 1:39 AM), http://mlb.mlb.com/news/article.jsp?ymd=20120711&content_id=34835348&vkey=allstar2012. 6 Id. 7 Id. 8 BASEBALL-REFERENCE.COM, supra note 1. 9 Mark Probst, Why Melky Cabrera Won’t Be a San Francisco Giant Next Year, BLEACHERREPORT.COM (Jul. 13, 2012), http://bleacherreport.com/articles/1258145-why-melky-cabrera-wont-be-a-san-francisco-giant-next-year. 10 Tyler Kepner, Seeking an Edge, Then Falling Off a Cliff, N.Y. TIMES (Aug. 15, 2012), http://www.nytimes.com/2012/08/16/sports/baseball/melky-cabrera-suspended-50-games-for-doping.html?_r=0. 11 Melky Cabrera Suspended 50 Games, ESPN.COM (Aug. 15, 2012, 11:10 PM), http://espn.go.com/mlb/story/_/id/8271981/melky-cabrera-san-francisco-giants-suspended-50-games (last visit Sept. 29, 2012). 12 Id. 42 PACE I.P., SPORTS & ENTERTAINMENT LAW FORUM [Vol. 3 However, shortly after Cabrera was sanctioned, he, along with his agents, faced more scrutiny as there were reports that Cabrera tried to dodge his 50-game suspension. Five days after Cabrera was suspended, the New York Daily News conducted an investigation revealing that Cabrera, along with an associate, tried to create a fake website advertising a fake product that contained testosterone.13 The goal was to argue that Cabrera did not know this product contained testosterone, thus contending that he “unknowingly” used a performance-enhancing drug.14 However, this was all just a sham. Major League Baseball has joined forces with the Food and Drug Administration (“FDA”), a federal agency, to look into this matter.15 On the FDA’s end, agent Jeff Novitzky, who is known for policing steroid use in professional sports, is heading the investigation.16 The ramifications that could come out of this federal investigation have yet to be determined. While this is not the first time a baseball player has been caught using performance- enhancing drugs, this is certainly not the first time that the federal government has intervened in drug-related matters in Major League Baseball. From congressional hearings on Capitol Hill down to this very investigation, the question begged to be asked is this: should the federal government intervene in matters associated with a private entity like Major League Baseball? Another important question to ask is this: is Major League Baseball’s drug testing policy so passive that it prompts the federal government’s involvement? If so, can modifications be made 13 Teri Thompson et al., Exclusive: Daily News Uncovers Bizarre Plot by San Francisco Giants' Melky Cabrera to Use Fake Website and Duck Drug Suspension, NY DAILY NEWS (Aug. 19, 2012, 7:50 AM), http://www.nydailynews.com/exclusive-daily-news-uncovers-bizarre-plot-melky-cabrera-fake-website-duck-drug- suspension-article-1.1139623. 14 Id. 15 Id. 16 Id. 2013] SEPARATION OF SPORT AND STATE 43 to Major League Baseball’s drug testing policy upon its expiration in 2016 to remedy these issues? The objective of this scholarly article is to address the issue of whether or not government intervention in Major League Baseball’s drug testing and treatment policy crosses the line. This article will analyze in detailed fashion Major League Baseball’s Joint Drug Prevention and Treatment Program Policy. It will also discuss case law regarding federal investigations into the use of performance-enhancing drugs in baseball, from the BALCO scandal, one of the biggest steroid investigations in recent sports history, to the Capitol Hill hearings involving notable baseball executives and player testimonies.