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.

Comments

[Lior]

There would be some precedent for grandfathering in players whose careers straddled new restrictions on player conduct. I am thinking of the 17 grandfathered spitball pitchers, who were allowed to continue throwing the outlawed pitch (in 1920) until their retirement. The most famous among them, Burleigh Grimes, was inducted into the Hall of Fame in 1964.

The spitball is an interesting case study. Everybody knew that Gaylord Perry, another Hall of Fame pitcher, continued to throw the pitch illegally until his retirement in the mid 1980s. But Perry's cheating elicited a kind of love and grudging admiration from fans. I was a fan of Perry's, his faults notwithstanding, and remain a fan of Bonds's, but I'm guessing that many baseball fans have very different attitudes toward these two talented players who seem to have crossed the line, and I guess I have a hard time understanding such sentiment.

[Marsha]

This really isn't on point for Saul's post, but I need to address Lior's comment.

While I agree that the spitball grandfathering is instructive, I think there's a rational difference between the affection given to Perry and how people feel about Bonds. Perry broke the rules, to be sure, and that's not a lesson we want our role models teaching to our children. But having a baseball icon using steroids and having MLB say that's ok, even implicity, sends a dangerous message to children - one that could take their lives. Throwing a spitball (or even thousands of them) isn't going to take the health or longevity of a kid away from him.

As for game play itself, I'm not sure how it plays out - I don't really know how much of an advantage Perry got from throwing the spitball. But something about altering the ball strikes me as fundamentally different (and less problematic) than altering your body.

Perry was a rascal, and the affection towards him seems to stem from him getting away with something a little sneaky. Bonds is affecting what we all thought we knew about the game, and tarnishing some of our finest memories of the game. Worst of all, he was a hero to kids who are either crushed by knowing he had to cheat to be that good, or believe that steroids are ok. Either way, that's problematic to me.

[slevmore]

Affection for spitballers, or for soccer and basketball players who are great at acting as if fouled, or baseball fielders making believe they caught the ball cleanly, can be "explained" as part of the game with a referee/umpire on the field. Part of the game is, in some circles, thought to be getting away with things that a good referee could catch. But Bonds and friends, and perhaps the whole generation, might get away with something that no umpire on the field could point to and remedy. I don't think this teaches morality to kids, but it is a defensible if purely positive position. It may be like admiring a litigator who gets in evidence that ought not to be allowed under the Rules, or who cites a case in oral argument or in a brief in misleading fashion. Some observers would think this is fine (and not to be remedied after the case is decided on appeal) both legally and morally. They will likely have a different reaction if the litigator's breach could not as easily have been outed by the adversary or judge on the spot. Thus, a fraudulent payment to a witness or the manufacturing of evidence would be considered wrong whenever uncovered. It might also lead us to go back and change the legal result.

[Lior]

Interesting responses. Marsha - we don't know how much of an advantage Bonds got from alleged steroids use either. He was a terrific player early in his career, and lots of very talented admitted steroid users (e.g., Jose Canseco) didn't approach 73 home runs. What about the children? I don't know. Len Bias's sad experience with cocaine probably had a lot of deterrent value for kids. If Bonds-aged-50 suddenly can't walk, children might learn an important lesson too.

Saul - The on-the-field refs versus off-the-field refs point is interesting. Is one implication that we should distinguish between the sanction applied to Bonds's alleged conduct when there was a testing program in place versus when there wasn't? That is to say, if he's fooling random drug tests using masking substances, then what he's doing is an acceptable part of the game, just like trapping a ball in left field and claiming to have caught it?

[Bob]

The rules of the game should be the only rules enforced...and I mean only yhe rules of the game, not all those extraneous rules about drugs, showmanship (dancing in the endzone), taunting, spitballing, etc. The object is to do whatever it takes to win, as long as the rules of the game are followed.

We make too big a deal out of all the other stuff which draws attention away from the fun of watching the game being played. Who cares how the player did what he did? Trying to regulate all this external stuff will eventually bite us in the butt. Wait until clones start playing. Or better yet, wait until genetically engineered people start playing. Then what are you gonna do? LOL

People want to legislate everything. Everyone must conform. What ever happened to individuality. It's rediculous.

[Jonathon]

If a manager tells a runner to "cut fifteen feet inside of third base on his way home" on a double squeeze--presumably because no umpire is watching--should the manager be condemned for cheating or applauded for taking advantage of the system? (Mark J. Hamilton, "There's No Cheating in Basebal (Wink, Wink)") I think this is somewhat more like cheating than, say, the hidden ball trick but less like cheating than corking a bat.

Bob suggests in his comment that "[t]he object is to do whatever it takes to win, as long as the rules of the game are followed." For a long time, steroid usage wasn't explicitly proscribed by baseball's rules. How would we handle a situation in which Player A lives in a country without a prohibition on steroids but Player B lives in the United States? I would think Player B has a strong claim that he's not "cheating" at all if the game's rules don't address steroid usage.

[lkessler]

I don't think you can adequately analyze this issue without considering the specific records and the sort of cheating that was engaged in to achieve those records. The all-time home run record and the single season home run record are unique insofar as they are the measure of a players strength, and power being what it is, home runs have a unique psychological significance to fans. Steroids, while they might help coordination certainly do help strength much more. There is no doubt about it that steroids were the cause of Bonds increasd homerun production, and probably to a lesser degree his increased on base percentage and batting average.

So I guess my point is, of course you can reject or at least asterisk just the home run records without having to visit every record of every know steriod user. And I hope the commissioner does (is there really a substantive difference between an asterisk and simply rejecting the record altogether?)

And might I point out that deterrence should not be motivated by "the children." "Won't sombody please think of the children!?" is not as relevant here as "Won't somebody please think of professional baseball players!?" The incentive for pro players to excel to the top through steroids is far higher than some pimply highschool player motivation to make the team, and the danger is if you don't step in, professional atheletes, with notoriously high discount rates, will continue to sacrifice their future health for current success and and added money. The same paternalistic argument can be made for pro football linemen, many of whom suffer severe arthritis and other debilitating health problems related to their size starting as early as their early 30s. There are a lot of desitute ex pro football players, if you can believe it, and there are going to be more if the NFL doesn't do something about the growing size of linemen and the damage they are doing to themselevs and each other all for a typically brutish hostile and short career.

[Bob]

Jonathan,

The game rules should only contain the rules that concern playing the game. There shouldn't be any rules about steroid usage or any other external factor. In 50 years or so we may have undocumented, genetically engineered humans. Maybe some parents want a great baseball player in the family. Would you want a rule to be added making genetically engineered humans illegal?

Look, my point is, these rules are extending too far. I guarantee that there are players in the Hall of Fame that have used steroids. So what? If you can't catch them all, then why bother? It's their life. If they want to use steroids, it's their business.

[Robert Garrick]

Dear Levmore writes: "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 is wrong, at least with regard to steroids. Steroids were explicitly banned by federal law, and by baseball, for almost all of Bonds's career.

On June 7, 1991, Commissioner of Baseball Fay Vincent released a memorandum that banned steroids (among other things). You can find the complete text and history on the internet, but here are the relevant paragraphs:

*****The possession, sale or use of any illegal drug or controlled substance by Major League players and personnel is strictly prohibited. Those involved in the possession, sale or use of any illegal drug or controlled substance are subject to discipline by the commissioner and risk permanent expulsion from the game.

In addition to any discipline this office may impose, a club also may take action under applicable provisions of and special covenants to the uniform Player's Contract. This prohibition applies to all illegal drugs and controlled substances, including steroids or prescription drugs for which the individual in possession of the drug does not have a prescription.

Major League Baseball recognizes that illegal drug use has become a national problem, and that some players and Baseball personnel may fall victim to drugs. Baseball will not hesitate to permanently remove from the game those players and personnel who, despite our efforts to treat and rehabilitate, refuse to accept responsibility for the problem and continue to use illegal drugs. If any Club covers up or otherwise fails to disclose to this office any information concerning drug use by a player, that Club will be fined $250,000, the highest allowable amount under the Major League Agreement.*****

Also of note: In 1980, long before the Vincent memorandum, Hall of Fame pitcher Ferguson Jenkins was permanently expelled from baseball for a drug-related offense. This decision (by Commissioner Bowie Kuhn) was later reversed by an arbitrator.

[Frederick Hamilton]

The most important issue with the banning of anabolic steroids is their danger. The fact that they indeed work and enhance performance and don't allow for a level playing field is minor compared to their harm. Anabolic steroids cause cancer (liver cancer among others), causes irreversible and rapidly enhanced atherosclerosis (hardening of the arteries, stroke, MI et al). Indeed they build muscle, but at a heavy price. That is why you don't want anyone using them and why especially you don't want young athletes ruining their long term health for the short term gain of athletic glory. A.E. Housman's "To an athlete dying young" is all to applicable to athletes using anabolic steroids. I could go on further about the danger of anabolic steroids as it relates to men and women but as a former NCAA Drug Testing Crew Chief and a doc I can assure you the concern for doping goes way beyond a competitor winning because of better chemistry.

The integrity of the game (football, baseball, track and field, or whatever) is certainly a major issue worth punishing those who use steroids.

Per the recent news, it appears Mr. Barry Bonds may not escape lying to a federal grand jury regarding his drug use. He was given immunity and it appears he spit in the federal courts eye. A little more serious than throwing an illegal spit ball. Time will tell.

If you understand the mentality of competitive athletics you will understand why high achieving athletes will use performance enhancing substances. Sadly, that performance enhancement finds it way into high school and even middle school athletes!!!!

As the head of the U.S. Olympic drug testing program told we NCAA crew chiefs at our training sessions in Colorado Springs, "if a world class sprinter knew he could take a tenth of a second off his 100 meter dash time by eating rabbit shit, he would eat rabbit shit every day". That is the mentality of world class competitors. Ergo to remain competitive all athletes will need the anabolic steroids. They work. They build muscle. They let you stroke 73 home runs in a season. They just have this nasty habit of ruining lives and ruining the integrity of the sport. The use of anabolic steroids and designer steroids is to be vigorously fought at every turn. Those that use them need to held to ridicule. I don't want my competetive son or daughter being forced to use them to compete. As bad as they are for men, they are a hormonally sexual disaster for women.

If Bonds lied to the grand jury, he should be held to account. If the federal prosecutor can prove he lied to the grand jury he should be banned from baseball for life and all his records purged. It is that serious to young people everywhere to allow a Barry Bonds to skate on steroid use.

To paraphrase a recently successful presidential campaign, "it is the health effect on the youth stupid".

[Kimball Corson]

As Frederick says, 'time will tell.' Now that a few hours has passed, we learned late yesterday that a federal grand jury has been investigating for more than a month whether Bonds committed purjury when he testified in 2003 that he never used steroids. The investigation is still secret, but the fact of it was leaked and reported yesterday. If Bonds lied when he testified before the BALCO grand jury, then his immunity would be destroyed in regard to that investigation and he would be possibly open to further charges there too.

[Chuck]

Interesting blog

[Kimball Corson]

Speaking of Bonds, check out the cover to the April 3rd issue of The New Yorker.

[kathleen]

Interesting.