Should PED Users be Elected to the Baseball Hall of Fame?: A Detailed Analysis



Law & Batting Order

Should PED Users be Elected to the

Baseball Hall of Fame?: A Detailed Analysis


by Adam Van Grack // @WhitewaterAtty

Baseball’s best players are immortalized in the National Baseball Hall of Fame and Museum, Inc. located in Cooperstown, NY (“Hall of Fame”). Since 1936, the Hall of Fame has given authority to the Baseball Writers' Association of America (“BBWAA”) to hold an election every year for the purpose of electing members to the Hall of Fame from the ranks of retired Major League Baseball players.


Since 1936, debates have often transpired about which players are worthy of Hall of Fame enshrinement. For example, many people believe that voters wrongly excluded certain players based on their athletic achievements (e.g., Roger Marris or Ted Simmons). And many people debate why legendary players such as Cal Ripken, Jr., Ken Griffey, Jr., or Stan Musial did not receive unanimous votes during their Hall of Fame election. However, the most vocal Hall of Fame debate has been: Should players who have used anabolic steroids, human growth hormone (“HGH”), or any illegal performance enhancing drugs (collectively, “PEDs”) ever be elected into the Hall of Fame? This PED-Use Question has become more vocal with Barry Bonds and Roger Clemens being on the Hall of Fame ballot since 2013. This article will explore whether PED using players, such as Barry Bonds and Roger Clemens, should be elected to the Hall of Fame.

PED USE, FEDERAL VIOLATIONS, AND MLB VIOLATIONS


The Controlled Substances Act (codified as a Federal Law at 21 U.S.C. 812) has made possession of certain controlled substances a federal felony since 1970. Specifically, anabolic steroids are identified in the Code of Federal Regulations. (21 C.F.R. 1308) as an illegal Schedule III drug. Further, use of HGH has been a felony since 1990 when the Anabolic Steroids Control Act of 1990 amended the Controlled Substances Act to include HGH.

Starting in 1971, the drug policy of Major League Baseball clearly prohibited the use of any illegal drug or medication without a valid prescription.[1] Additionally, in 1991 then-Commissioner Fay Vincent expressly clarified that PEDs such as anabolic steroids were banned by the league’s 1971 drug prohibition. It is important to note that during this time, any use of anabolic steroids and HGH was a federal felony. Thus, as of 1991, it is unequivocal that all baseball players were aware, or should have been aware, that use of illegal PEDs were a direct violation of Major League Baseball’s polices.


Ultimately, as federal criminal consequences were not strong enough to eliminate PED use by Major League Baseball players, in 2002, the league drafted the first form of its Joint Drug Prevention and Treatment Program (“MLB Drug Program”). As a result, in 2003, testing of athletes for PEDs began within Major League Baseball (unofficially in 2003, and then officially in 2004). In 2006, to fully understand the degree of use of PEDs in Major League Baseball, then-Commissioner Bud Selig commissioned former Senator George Mitchell to compile a report[2] on PED use in baseball (the “Mitchell Report”). Once formal testing began, players could be suspended and deemed ineligible to play based on positive tests; however, regardless of Major League Baseball’s internal policies, since 1970, players have been subject to criminal penalties under the Controlled Substances Act.


Thus, regardless of Major League Baseball’s various league-wide policies beginning in 1971, throughout the past forty-eight (48) years, all possession and use of anabolic steroids has been illegal. It is also important to note, that every single year that Major League Baseball has tested players for illegal PED use between one (1) and twelve (12) Major League Baseball players have been suspended for PED use (including three (3) players in 2018). It goes without saying that players electing to use illegal PEDs were well aware about the potential consequences of any decision to use PEDs.


HALL OF FAME STANDARDS


According to the current BBWAA rules for election into the Hall of Fame,


“Voting shall be based upon the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played.” (emphasis added)

Most Hall of Fame voters, pundits, and fans focus on the “player's record” and “playing ability” section of the criteria; however, Hall of Fame voting must also be based on a player’s “integrity,” “sportsmanship,” and “character.”


Consequently, the “PED-Use Question” tasks voters with asking whether the use of PEDs by an eligible Hall of Fame candidate tarnishes that player’s “integrity”, “sportsmanship”, or “character” enough to make that candidate ineligible for enshrinement in the Hall of Fame.


PED USE AND HALL OF FAME STANDARDS


Plain and simple, use of PEDs in Major League Baseball is cheating; no one can argue otherwise. Use and possession of PEDs has been a felony under federal law since 1970, and, in addition, despite this criminal threat, Major League Baseball has implemented its own policies and penalties since 1971. However, PED use is a greater and more substantial type of cheating than simply “game cheating” under the basic Baseball Game Rules (such as excessive use of pine tar on a bat, a foreign substance on a baseball, or spiking an opposing player).


First, game cheating (such as use of a foreign substance on a ball) is not a violation of any state or federal law. Use of PEDs, however, is a federal felony. Clearly, no one can seriously argue that cheating by violating federal law is not significantly more serious than an in-game ball trick.


Second, game cheating (such as using a different size glove) can be detected, evaluated, and penalized by the in-game rules enforcers – the umpires – during the game. Use of PEDs, however, cannot be detected or evaluated during a game.[3] This lack of accountability by the sanctioned rules-enforcers – the umpires – is a serious problem. Umpires can enforce almost every baseball rule during the game, but they cannot enforce illegal or banned PED use. Additionally, as the Mitchell Report states, “No drug testing program is perfect.” (Report at S-04). While umpires can immediately look on a player’s uniform for a foreign substance or measure the pine tar on a bat about to be used, they cannot request a urine or blood sample from a player. And even if they could demand such a test, obtaining results properly takes days, and a first failed drug test is not even punishable under the MLB Drug Program, only upon the second failed test. Testing for PED use will always be difficult, so the punishments for violations must include a serious deterrent. This enforcement difficulty makes illegal PED use (and suspected use) significantly more serious and merits more serious punishments. Afterall, severely difficult enforcement merits harsher penalties because a higher deterrent is necessary when discovery is more difficult (and this type of cheating easier to accomplish by a player). Further, PED use is not a momentary, game-specific infraction (like one pitch with extra spit), but rather a wholesale activity that can affect the entire body of the player’s work over the course of a season – or even the entirety of the player’s career.


Third, game cheating (such as improper use of field markers) does not potentially physically harm the cheating player or encourage illegal activity in others, such as participants in youth baseball who look to emulate the success of their Major League heroes. Use of PEDs, however, encourages the use of illegal harmful drugs by children who idolize players in baseball.[4] If Major League Baseball treats PED use as acceptable or tolerable in any form, the league is communicating to children that use of PED will be an acceptable path towards greatness. For example, as noted in the Mitchell Report, after the wide-spread media coverage in 1998 that then-home-run champion Mark McGwire used a particular drug called androstenedione,[5] sales of “andro” increased by over 1000%, and “[a]ccording to the National Institute on Drug Abuse, by 2001, 8% of male high school seniors had used andro within the prior year.” (Mitchell Report at 16). Succinctly, any approval of PED use by players encourages youth athletes to use illegal and harmful PEDs. And for this reason alone, cheating through PED use is significantly more problematic than any other type of cheating.


There can also be no excuse that any Major League Baseball player after 1991 was unaware of that PEDs were both banned by Major League Baseball and illegal under federal law. Prior to 1991 players could be possibly unaware of the illegal nature of PED use and possession. However, after the Commissioner’s declaration in 1991, no player can raise a credible claim of confusion or blissful ignorance as to the consequences of any decision to use PEDs.

MLB PLAYERS WHO USE ILLEGAL PEDs

SHOULD BE NOT BE ELECTED INTO THE HALL OF FAME


For all of these reasons, it is my strong opinion that after 1991, a player’s use of illegal PEDs so greatly tarnishes a player’s “integrity”, “sportsmanship”, and “character” to merit exclusion to the Hall of Fame. This exclusion justification is especially important because of the difficulty of testing for PEDs; if we can confirm at least one instance of possession or use of PEDs by a player, then there are likely substantially more undiscovered instances of PED use. Again, this is one reason why PED use needs to be punished harshly – with the extreme difficulty of testing and discovery, there must be a serious deterrent to PED use; thus, serious consequences for any Established PED User.


Additionally, any argument that an Established PED User was Hall-of-Fame-worthy prior to any PED use[6] must be discounted as an invalid argument for enshrinement. Baseball pundits can presume for as long as they want about how an Established PED User may have performed without PED use; however, any analysis is just a presumption. And players are not enshrined into the Hall of Fame on presumption alone (otherwise Mark Fidrych would have been enshrined in 1977 and Dwight Gooden in 1986). A player’s entire career must be judged.


Further, if a player is confirmed to have used PED at least once during his career, then his entire career is tainted, and his choice to use PED after 1991 places his integrity, sportsmanship and character at issue. Such a hard line must exist because, as stated before, of the extreme difficult of discovering this serious form of cheating. In addition to the inability of in-game testing, discovering PED use is difficult because (1) only limited testing is permitted under the agreed-to MLB Drug Program, (2) making agents are constantly used by players to hide their use, and (3) a player’s first offense is not publishable or made public, only the second failed test is sanctionable. Because testing and obtaining admissions by a player for PED use is so extremely difficult, it is impossible for us to say with certainty exactly when that player began or stopped using PEDs. While an Established PED User may still be allowed to play baseball (most suspension for PED use are under 100 games), those suspended Established PED Users should never be held up in the Hall of Fame as demonstrating the greatest integrity, sportsmanship and character within the game of baseball.


Further, any argument that PED use does not assist a batter or pitcher in baseball is ludicrous. While PED use has not been shown to increase a person’s hand-eye coordination, it has been shown to increase muscle mass. A batter who – with more muscle -- can hit the ball farther when contact is made does have an clear and district advantage over a batter with less muscle but the exact same hand-eye coordination.[7] A pitcher who – with more muscle – can throw the ball faster upon release does have a clear and district advantage over a pitcher with less muscle but the exact same hand-eye coordination.

CONCLUSION

If we conclude that Established PED Users should not be eligible for Hall of Fame enshrinement, then we must come up with a standard for voters. Unfortunately, such a standard will inevitably cause even more debate. Should suspected PED users not be elected to the Hall of Fame or only those whose PED use has been proven – and proven by whom and to what extent? Should PED violators who were allowed to play again after a suspension not be elected to the Hall of Fame? Where is the rule that voters should use?


Fortunately, however, Hall of Fame election is not subject to any bright line rules. As the election criteria themselves state, there are “[n]o automatic elections.” Players with batting averages below many non-Hall-of-Fame players have been elected. This is why the election criteria lists so many categories of a player’s experience in baseball for a voter to consider. Therefore, with a player’s election to the Hall of Fame subject to the subjective opinions of BBWAA voters, how can we make sure that the PED issue is treated fairly and consistently during the election process?


In my opinion,

  1. If a player has ever confirmed tested positive for an illegal or banned PED use during their baseball career after 1991, then such action tarnishes that player’s “integrity”, “sportsmanship”, and “character” enough that they should not be elected to the Hall of Fame.

  2. If a player has ever been convicted for the crime (state or federal) of use or possession of an illegal PED during their baseball career after 1991, then such action tarnishes that player’s “integrity”, “sportsmanship”, and “character” enough that they should not be elected to the Hall of Fame.

  3. If a player has admitted use or possession of PED after 1991 (in any format), then such action tarnishes that player’s “integrity”, “sportsmanship”, and “character” enough that they should not be elected to the Hall of Fame.

  4. If a player has been shown through court documents or certified court affidavits under the penalty of perjury to have used or possessed PEDs after 1991, then such action tarnishes that player’s “integrity”, “sportsmanship”, and “character” enough that they should not be elected to the Hall of Fame.

However, if a player is only suspected of PED use through non-sworn statements (such as a book), innuendos, or stat-driven data, such circumstantial evidence should not tarnish that player’s “integrity”, “sportsmanship”, and “character” enough – and those players should be considered for election into the Hall of Fame on the merits of their achievements to the game of baseball.


Nonetheless, these are just guidelines that I would use if I was a Hall of Fame voting member of the BBWAA. Fortunately, no bright-line rule has ever existed for Hall of Fame voters to evaluate players.[8] However, at the least, when a Hall of Fame voter is thoroughly convinced that a player used an illegal or banned PED during their playing career after 1991, then that voter should not elect that player to the Hall of Fame. Baseball Hall of Famer and Vice Chairman of the Hall of Fame, Joe Morgan, agrees with this position and wrote a letter to all voters in 2017 expressing his view that Established PED Users should not be voted into the Hall of Fame.


Historic stats by an Established PED User should not -- and cannot -- overcome the serious tarnish of that PED user’s “integrity”, “sportsmanship”, and “character.” Baseball’s most famous historic artifacts – such as Barry Bonds 756th Home Run baseball and Roger Maris’ 61st Home Run baseball of 1961– are indeed located within the Hall of Fame Museum itself, regardless of any player’s enshrinement. So historic feats and achievements will always be celebrated as part of the Hall of Fame. No action can rewind history and take away Barry Bond’s status as baseball’s “home run king.” However, an Established PED User himself should not be celebrated with enshrinement in the Hall of Fame. After all, should we communicate to our children that illegal severe cheating is tolerable so long as you are really, really good?


Some people make the argument that a Hall of Fame ban for Established PED Users is not fair because many PED users were simply never caught. Well, there is nothing we can do about players who were never caught or punished. However, the fact that other people committed a crime and were not caught has never been any excuse for any crime. Additionally, if a player has become an Established PED User, then that player has more than likely used PEDs more than other players (more use = more likely to get caught). Ultimately, if a player has become an Established PED User, then they should not be celebrated in the Hall of Fame – regardless of others’ suspected activity.


Cheating through PED use is not the same as any other type of cheating in baseball. The game of baseball is played solely to evaluate the physical and mental skills of opposing teams, who are supposed to face each other on a fair playing field. The use of illegal PEDs tarnishes and ruins the entire physical skill evaluation aspect of the sport. And, as stated above, cheating through PED use cannot be evaluated in any form by the umpires during the game, and sanctioning any form of PED use by honoring Established PED Users sends a dangerous message to youth baseball players about integrity, sportsmanship and character.

If we are serious about eliminating PED use, and if we understand the degree to which PED use has, and continues to,[9] tarnish the game of baseball, then we must conclude that baseball players who violated federal law and baseball’s policies by using illegal PEDs must not be elected into the National Baseball Hall of Fame and Museum.



[1] “Baseball must insist its personnel comply with the federal and state drug laws. It is your obligation to be familiar with these drug laws.” (Notice No. 12, Memorandum from Major League Baseball Office of the Commissioner to Administrative Officials, April 5, 1971).


[2] Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball


[3] Gambling on baseball is similar a form of a rules violation that cannot be enforced by the in-game rules enforcers; thus, MLB Rule 21 makes a violation of that rule a baseball ban.


[4] “Apart from the dangers posed to the major league player himself, however, his use of performance enhancing substances encourages young athletes to use those substances. Young Americans are placing themselves at risk of serious harm. Because adolescents are already subject to significant hormonal changes, the abuse of steroids and other performance enhancing substances can have more serious effects on them than they have on adults.” (Mitchell Report at SR-8).


[5] A steroid precursor drug which has been shown to increase testosterone levels, like anabolic steroids. While it is not technically an anabolic steroid, possession of the drug is now illegal under federal law, and due to its similar effects, the International Olympic Committee banned androstenedione in 1997 and placed it under the category of androgenic-anabolic steroids


[6] For example, as one baseball pendant argued, in support of Barry Bond’s Hall of Fame election: “Even if Barry Bonds had never used steroids, he would be a surefire Hall of Famer.” Neil Greenberg, Washington Post, January 17, 2017.


[7] If all a certain hitter’s warning-track-caught balls instantly became home runs due to an increase of power from PED use, their home run total would be increase – and thus, tarnished from PED use.


[8] Except, according to the Hall of Fame Election Rules, “Any player on Baseball's ineligible list shall not be an eligible candidate.”


[9] Fourteen (14) Major League Baseball players were suspended for use of illegal and banned PEDs from 2016 through 2018 alone.

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