Barry Bonds II
In yesterday's post, I tried to take up the question of the degree to which Baseball's actions would be influenced by the threat of litigation, or the sort of thinking lawyers engage in. The Comments were provocative and much appreciated. Today's post addresses the likelihood of settlement and, in passing, addresses the Comments and inclination of many readers to take the high moral, or deterrence, ground.
Most lawyers will gravitate toward practices that treat like cases alike, especially within a short time frame, and most risk averse lawyers will counsel clients to expect judicial intervention if they fail to treat like cases alike, because this raises claims of discrimination or other motives. It is because of this observation (which may be wrong, I concede) that the nuclear option against Bonds seems unlikely; it would need to anticipate the possibility that tens or even hundreds of current and recent players were associated, through appropriate evidence, with illicit performance-enhancers. Is it realistic that all would be banned and all removed from the records? If not, then we should not expect, or even perhaps favor, the "strict" remedies for Bonds. Note that the ban on Pete Rose, because of illicit gambling, was unlikely to raise this problem. If tens of players or managers were found to have gambled on their teams, they could more easily have been banned from Baseball (and its Hall of Fame).
Once the choice of remedies is put this way, we see the attraction of a settlement. There is a rumor that Bonds, perhaps like a famous athlete in another sport, was or will be offered a deal of the "you retire now and stay away from the game, and we will not change any past records or conduct further inquiries" sort. In theory, that might leave Baseball free to try a different remedy if evidence regarding widespread use becomes public. Indeed, it suggests the value of leaving records on the books, because the deletion of records will seem terribly inconsistent if there is a future amnesty of sorts for other users. A good deal might depend on how the current season unfolds. If Bonds quickly makes an assault on the all-time record for home runs, he will be less likely to agree to a settlement that forces retirement before his 756th homer.
Finally, a thought on the relevance of retroactivity rules. One has to travel far and wide to find fans of Bonds these days, but I think the argument in his partial defense has much to do with transition rules. Let me put the argument in ungenerous and unflattering terms, while advancing some legal sympathy. Bonds was a fabulous hitter who saw that the world valued slugging more than hitting. Mark McGwire drew more attention for all those home runs. So Bonds altered strategies, and perhaps altered his inputs, so to speak, in pursuit of this strategy. He succeeded fabulously - but then brought on himself even more inquiries than McGwire had generated. Some will point to race and others to the fact that Bonds's switch in style and appearance was a bit more obvious. Either way, any remedy that looks back at Bonds's records must be prepared to look back a bit further. A saving distinction might be that some (now banned) substances were both legal and allowable under Baseball's rules for most of Bonds's career. This fact also suggests how Baseball might settle, or extract itself from its current problem. It could try to grandfather in records set by players whose careers straddle the various prohibitions on performance-enhancing substances. If in ten years we look back and see that there was one short period in which many home runs were hit, there will be, in effect, a well-understood asterisk on the entire period. A Commissioner's action will not be necessary. But for players within that period, it is risky to impose penalties on a very few.