Student Brief: The Legal Implications of Drug Testing in Sports by Professor Schmidt
By student blogger Mark Berardi
The Sports and Entertainment Law Society recruited Professor Christopher Schmidt of Chicago-Kent College of Law to present the history and legal implications of drug testing in sports. Professor Schmidt’s talk drew on a project he is currently working on entitled, “Governing Baseball.” He is exploring the history of the relationship between baseball and the government through four case studies: (1) The appointment of Judge Kenesaw Mountain Landis as the first Commissioner of baseball in the wake of the Black Sox Scandal; (2) the integration of baseball; (3) team relocations and the expansion of major league baseball in the 1950s and 1960s; and (4) the introduction of drug testing in the past decade. He argues that while organized baseball has generally prided itself on its independence from government regulation, the game actually has a long history of reliance on government, and, furthermore, government involvement has generally benefited the game.
Professor Schmidt began the presentation by explaining how there has been a long history of use or abuse of substances in baseball. Alcohol has always been a part of the game, and in the 1970s and 1980s the game went through several cocaine scandals. Players regularly relied up stimulants, from caffeine to amphetamines, to help them get through the season. With regard to performance enhancing drug usage in baseball, he then explained that recent history can be divided into three eras. From around 1980 through 1994, there was a period in which there were rumors and rumblings of a steroid problem in the MLB. From after the 1994 players’ union strike through 2004, the steroid era ruled. Finally, the time from 2004 to the present is considered the beginning of the end of the steroid era.
During the first era, the use of steroids and other performance enhancing drugs was a big problem for the NFL, the Olympics and other sports, but not so much baseball. Until the 1980s, ballplayers generally believed that bulky muscles were not good for hitting. In 1990, the US got involved and created the Anabolic Steroids Act, which lists steroids as a controlled substance. Then, in 1991, the MLB commissioner sent out a memo to all owners telling them that steroids are prohibited substances, but did not institute any kind of testing. The owners made half-hearted attempts to create a testing program through the collective bargaining process, but the players’ union steadfastly opposed all such proposals. For years, the union succeeded at keeping testing out of the game.
The 1998 season saw an offensive explosion and the home run race between Mark McGwire and Sammy Sosa. This was great for baseball teams and, since other players wanted the attention of the media as well, steroid use increased dramatically. Although players such as Ken Caminiti and Jose Conseco would in the coming years publicly claim that baseball was riddled with steroid users, there was a tacit acceptance of steroids in major league baseball. The owners loved that players were driving up demand for baseball tickets and the players loved to be able to demand huge contracts and media attention. Professor Schmidt explained that, despite baseball’s pride of its independence from government intervention, those who controlled the game proved incapable of confronting the problem themselves. There was a need for the government to help to stop the use of steroids in baseball.
With more player exposes and continued rumors of steroid use, and in the face of public pressure and threats from Congress, the owners and the players in 2002 finally agreed to a provisional “survey” testing program, designed to determine whether a problem really existed. At this point, the government got involved. In 2003 federal agents raided BALCO labs in California. President Bush, in his 2004 State of the Union address, demanded that sports leaders do something about steroids, likening it to a public health epidemic. Congress held several hearings on the issue. Then, in 2004, Congress amended the Controlled Substance Act to include various steroids and steroid-like substances that had previously been available without a prescription. Finally, in 2005, the players’ union agreed to a strong testing program tied to the Controlled Substance Act list of drugs, and in 2007 MLB hired ex-Senator George Mitchell to conduct an independent investigation of baseball in the steroid era. The government intervention pushed the apathetic MLB into testing its players.
Professor Schmidt suggested that in order to consider an appropriate remedy for performance enhancing drugs, we should first examine the reasons for prohibiting them. There are three most commonly cited reasons. First is the argument that the use of these drugs is cheating and hurts the integrity of the game. Second is the argument that the risk of medical harm necessitates the banning of these drugs. And third is the idea that baseball players are role models, and their use of these drugs leads to a public health concern if children begin using them. Despite the arguments that the government should not get involved in major league sports’ drug regulation, Professor Schmidt concluded that government intervention was the only way that baseball would be cleaned up since neither the owners nor the players wanted change.
Finally, Professor Schmidt described the thorny legal issues involved in sport drug testing. He discussed some of the constitutional issues of privacy that arise from drug regulation, concluding that there is not much room for argument on behalf of the players as long as there is a process of appeals. The sharing of information between federal law enforcement officials and MLB might also raise some legal concerns. Recently NFL players have successfully used state-level workplace laws to challenge league drug testing policy, a development with potentially transformative implications for drug testing in professional sports. He concluded by noting that the current zone of growing concern for MLB is steroid use by players outside of the country who are recruited to play in the U.S.