Major League Baseball's Drug Testing Scandal
Major League Baseball is now in the
midst of a major league scandal regarding the use of performance enhancing
drugs by its ballplayers. As recently as
December, 2007, a
“Report to the Commissioner of Baseball of an Investigations into the Illegal
Use of Steroids and other Performance Enhancing Substances by Players in Major
League Baseball” or just “The Mitchell Report” as it is commonly called, was
published. The report, more than 300
pages in length, was “the product of an intensive investigation,” and the
document outlines every aspect of the problem of major league ballplayers that use
performance enhancing drugs to gain a competitive advantage; it also offers
some recommendations for putting this on-going controversy to rest.[1]
Donald
Fehr, as the Executive Director of Major League Baseball’s Players Association
(MLBPA) has the duty to protect the players’ interests with an eye to
maintaining strong bonds with the league, and also to respond publicly on
behalf of the players association in situations like the present steroid
scandal. On January 15, 2008, Fehr testified before the
United States House of Representatives Committee on Oversight and Government
Reform where he presented the MLBPA’s position, condemning the use of unlawful
substances and warning of their hazards.[2] Consistent with this position, Fehr explains
that the players association agrees to uphold MLB’s drug-testing policy: “We
remain committed to ensuring that baseball continues to have a comprehensive,
effective and fair drug-testing program.”[3] The corollary to drug-testing is how the
MLBPA should handle the results obtained from players, both internally and
publicly.
Already,
legal and ethical frameworks exist to govern the treatment of test results, and
Mr. Fehr has consistently maintained the importance of privacy rights of
individual players as well as a contractual obligation to keep player names
confidential. Contract clauses regarding
the confidentiality and/or disclosure of player information appear in numerous,
legally binding documents between the MLB and MLBPA including Major League
Baseball’s Collective Bargaining Agreement, Major League Baseball’s Drug Policy
and Prevention Program, and Major League Baseball’s Joint Drug Prevention and
Treatment Program. Should results be
released? Legal language within MLBPA agreements says, definitively “no”. Moreover, ethical issues that pertain to a player’s
rights of privacy, as well as the pros and cons of keeping the names of
drug-tested players confidential (positive result or not), will lend credence
to the MLBPA and Mr. Fehr’s savvy during this troubling circumstance surrounding
major league baseball.
Although
test results are supposed to remain confidential, this does not always
happen. Tom D’Angelo, staff writer for
the “Palm Beach Post” explains, “Fehr is bothered that tests of which the
individual results were sealed under court orders were leaked… ‘That’s a real
problem to me,’ [Fehr] said, ‘I thought we were all supposed to honor court
orders.’”[4] This statement came as a result of Alex
Rodriguez’s failed 2003 drug test being leaked to the press along with information
that another 103 players had also failed. This first-ever-drug-testing agreement
between MLB and its players was a “survey test” which both sides agreed to keep
confidential, according to D’Angelo.
Nevertheless, the MLBPA and Mr. Fehr were caught in a whirlwind of
unwanted media attention because confidentiality guidelines were not
followed.
An
analysis of the legal language and ethical issues that identifies releasing
test results as improper are found in various major league baseball documents. A good place to begin this analysis is the
MLB Collective Bargaining Agreement. The
CBA states, “Any other physician or medical professional treating or consulting
with a Player… shall be prohibited from making any public disclosure of a
Player’s medical information absent a separate, specific written authorization
from the Player authorizing such public disclosure.”[5] When applied to the inappropriate release of
drug-test results in 2003, it is assumed that A-Rod gave no written
authorization for public disclosure; therefore, the person who leaked the
results violated this most basic clause of a player’s right to control medical
disclosure. This action directly affects
a huge ethical concern, namely the player’s rights of privacy. Mr. Fehr was, of course, less than pleased to
deal with this situation: “The agreement we had was that information related to
2003 was supposed to be and should remain confidential, and we believe it
should.”[6] For the ethically relevant reason that every
person has a reasonable right to privacy attached to the contractual agreement between
the MLB and MLBPA, no test results shall be released unless under authority of
a consenting player.
Again,
in a Major League Baseball Drug Policy and Prevention Program memorandum
distributed by Bud Selig to all MLB Clubs, is a set of statements that concern
confidentiality, and which expand on the CBA statements to include specifically
legal language:
The confidentiality of players’…
test results will be protected to the maximum extent possible and as required
by law… Neither the Medical Advisor, program directors, the testing laboratory,
nor anyone in their employ is permitted to publicly disclose or allude to any
information acquired in connection with this program… or to communicate in any
fashion with the news media… information concerning drug test results or
otherwise breach [of] the confidentiality provisions of this policy may be
subject to discipline, including fines.[7]
Article 9, “Confidentiality,”
builds upon the ethical idea of reasonable rights for privacy. Also, all drug-test results are deemed
confidential, a legal term which protects the player using established laws,
and where violators will face monetary damages or worse. The language that forbids communication with
the news media regarding test results is especially relevant in light of the
media frenzy surrounding MLB player’s drug-tests for years now.
Perhaps
the most comprehensive of documents provided by Major League Baseball regarding
legal and ethical issues in the question to release drug-test results or not,
is Major League Baseball’s Joint Drug Prevention and Treatment Program. Like the Selig memorandum outlining Drug
Policy and Prevention, there is a clause of confidentiality which says all MLB
employees in the loop, “are prohibited from publicly disclosing information
about an individual Player’s test results or testing history.” However, this joint document also adds a
clause to assert affirmative resistance to drug-testing inquiries from outside
the organization: “Parties will also use all reasonable means to resist any
effort by a private party to obtain confidential information about the testing
program…”[8] This language states very clearly that all
individuals with knowledge of drug-tests for MLB players must not only keep
records confidential, but must also resist attempts by unauthorized individuals
to obtain testing information.
Therefore, the Joint
Drug Prevention and Treatment Program provides a basis for the decision to not
release testing results. Another extension
of this decision says, “The only public comment from the Club or the Office of
the Commissioner shall be that the Player was suspended for a specified number
of days for a violation of this Program.”[9] In all, the expansion on preceding documents espouses
confidentiality and refusal to release results; but also, accepting the need to
deliver a public message regarding operations of a high-profile sport, it allows
teams or the Commissioner to release a player’s name and length of his suspension. Both legal and ethical considerations of this
document echo those previously stated: 1) legal contractual obligations listed
in all three documents are paramount for league authority over its own
drug-testing policy and violations of this policy are punishable by existing
legal statues. 2) ethical concerns for a player’s right to privacy and moreover
the player’s integral connection to effective league operations demands they
are afforded the highest level of protection from media and non-organizational
individuals.
Various
contractual documents and articles of analysis explain the obligation of Mr.
Fehr to retain drug-testing results in order to protect the MLB players and as
a primary duty of the player’s association.
Nevertheless, handling the purported “steroid era” scandal is this way
has its pros and cons. Pros for Mr. Fehr
in following the course not to disclose results include developing and
maintaining a strong, cohesive, and future-ready player’s association that
displays its fervor to protect player’s interests at every turn. Many note and respect Mr. Fehr for his
tenacity in this department. Cons rest
in the pool of public perception and media attention, who often manipulate
silence or the absence of information to make wild assumptions and create
frenzy. Mr. Fehr, while advising players
to be careful in popularized and publicized situations, has always left
ultimate decisions in the hands of the individual players. This trait creates an atmosphere of
legitimacy for the decisions made by Mr. Fehr on behalf of the player’s
association and its members. Mr. Fehr’s tempered
control of this situation by way of his consistent message that drug-test
results will not be released reaffirms the steadfast quality of Major League
Baseball’s drug-test program, the MLBPA policy on drug-testing, and the
standards of contractual obligation between these two baseball entities.
Future
implications for the major league’s involvement in scandal surrounding
performance enhancing drugs will rely on many factors. Fan perception, government involvement, MLB
policy and strained associations with its players association, hall-of-fame
controversy, and especially the future of MLB drug-testing and subsequent
penalties for athletes testing positive, are a tip of the iceberg of issues
that will impact on the future of professional baseball. Most of the parties involved are coming to the
conclusion that this scandal has gone on too long, and in my opinion, a
continuing blitzkrieg of “steroid era” perception linked to Major League Baseball
can only diminish the game. Ideally,
baseball will clean up its image and revert to being perceived as it once was,
as the ultimate game of skill and coordination over and above power and
slugging.
[1] Report to the Commissioner of Baseball…
by Mitchell, 1
[2] Before the United States House of
Representatives Committee… quoted by Fehr, 2
[3] Selig’s and Fehr’s Answers Satisfy House
Committee by Schmidt, 2
[4] Donald Fehr says union won’t reveal names of
103 players who failed drug tests in 2003 by D’Angelo, 1
[5] Major League Baseball’s 2007-2011 Basic Agreement
by MLB and MLBPA, 49
[6] Fehr Rejects Drug-use Suspicion Talk by
ESPN.com
[7] Major League Baseball’s Drug Policy and
Prevention Program – Memorandum by Bud Selig, Article 9.
[8] Major League Baseball’s Joint Drug
Prevention and Treatment Program by MLB, 14-15
[9] Major League Baseball’s Joint Drug
Prevention and Treatment Program by MLB, 10