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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

D’Angelo, T. (2009, February 23). Donald Fehr says union won’t reveal names of 103 players who failed drug tests in 2003. Palm Beach Post. Retrieved March 9, 2009, from palmbeachpost.com.

Fehr, D. Before the United States House of Representatives Committee on Oversight and Government Reform. (2008).

Mitchell, G. 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. (2007).

MLB and MLBPA. (2007-2011). Major League Baseball’s Collective Bargaining Agreement.

MLB. (2002-2008). Major League Baseball’s Joint Drug Prevention and Treatment Program. Retrieved March 9, 2009, from FindLaw.com.

Schmidt, M. (2008, December 31). Selig’s and Fehr’s Answers Satisfy House Committee. New York Times. Retrieved March 9, 2009, from nytimes.com.

Selig, Bud. Memorandum to all Major League Baseball Clubs, May 1997. Major League Baseball’s Drug Policy and Prevention Program.

(No author). (2009, February 23). Fehr Rejects Drug-use Suspicion Talk. ESPN.com. Retrieved March 9, 2009, from sports.espn.go.com.