I doubt that law should have much to do with how major league baseball runs its show, how basketball games are refereed, how universities are run, and so forth, though of course law intervenes frequently and in strange places, especially where legislators are eager to tread, where governments can influence through expenditures, or where some interest groups care to encourage governmental or judicial involvement. Still, I don’t think it terribly likely that Congress or any judge will much influence the question of whether Barry Bonds is denied the records he has set thus far, or the lifetime homerun record he is likely to reach soon enough. If he were found to have used illegal substances (whether illegal under law or under his sport’s rules) he might be denied a formal record, put into the history books with an asterisk (though that seems silly in this case), or kept out of the Hall of Fame (like the gambler, Pete Rose), but these steps are more likely to be generated by the politics and economics of baseball than to be the product of a statute or judicial decision. It is a bit like asking whether a court or Congress is likely to determine the winner of an Academy Award.
Can this be right? When the Commissioner makes decisions on these matters, will they not be influenced by litigation threats? I suppose Bonds could be suspended before he reaches the Ruthian or Aaronian home run levels, and he could challenge such a suspension in court. More generally, baseball is more likely to face lawsuits and even liability if it tried to withhold awards, playing time, or records than if it let the games go on, and left itself open to lawsuits by competing record-holders (who did not face allegations of steroid use) or by other interests that sought to gain standing. Interventionist litigation or legislation seems even less likely if it turns out that Bonds used illegal substances in a number of seasons now completed. Baseball can probably do as it wishes, with little fear that a court or legislature will truly wish to take over the hard job of sorting things out. Simply satisfying the players, who have everything to gain from strict prospective bans - if and only if they can be enforced so as to eliminate competitive pressure to cheat - but little to gain from retrospective penalties (except as a signal of the seriousness of the prospective ones), is difficult. When we add in fans, advertisers, the importance of old records, Congress, and the diverse interests of present owners, we can see that the Commissioner has a fun job. A safe resolution might be for the Commissioner to abide by a “vote” of fans, baseball writers, or some other group (the membership of which is not itself easily challenged in court).
At the risk of turning this from a law blog into a sports blog, I might point out that it is in the nature of sports to leave results unchanged once a game has ended. A video replay is used in some sports to change a call or even a final result, but that would be very rare once the day passes by. If photos show that a player had stepped on the out-of-bounds line at a key moment or lost possession of a ball, or that a hockey goal was wrongly recorded, and these photos are not seen until a week has gone by, we do not expect any sport to unsettle results, however clear it is that the error was made and that it mattered. The same is true if a player intentionally affected the result. The referee might miss a flagrant, intentional foul, but that fact, if discovered two days after the big game, will not cause an altered result. And so perhaps in this tradition, we should expect or even argue that Bonds’s results should be allowed to stand no matter what is later discovered about the conditions under which they were created.