14 Dec The Mitchell Report and the “Illegal” Use of Performance Enhancing Substances
I read with interest the Mitchell Report on the illegal use of steroids and other performance enhancing substances. The section that particularly grabbed my attention was the governing law (pp. 18-24). Of central importance to the report is how one defines the “illegal” use of steroids and other performance enhancing substances. Here are a few key sections from the summary and the report (pp. SR10, 19):
Anabolic steroids are listed as controlled substances under the federal Controlled Substances Act. Since 2004, the dietary supplement androstenedione and other steroid precursors have been as well. That means that it is illegal to use or possess steroids or steroid precursors without a valid physician’s prescription. Violations of this law carry penalties similar to those applicable to the illegal use or possession of narcotics. Human growth hormone is a prescription medication. It is illegal to issue a prescription for human growth hormone except for very limited purposes. Human growth hormone never has been approved for cosmetic or anti-aging uses, or to improve athletic performance. Issuing a prescription for human growth hormone for any of these unauthorized purposes is a violation of federal law….
There is a widespread misconception that the use of steroids and other performance enhancing substances, such as human growth hormone, was not prohibited in Major League Baseball before the inclusion of the joint drug program in the 2002 Basic Agreement. In fact, as early as 1991 baseball’s drug policy expressly prohibited the use of “all illegal drugs and controlled substances, including steroids or prescription drugs for which the individual … does not have a prescription.” Even before then, however, the use of any prescription drug without a valid prescription was prohibited in baseball, and even earlier under federal law. In 1971, baseball’s drug policy required compliance with federal, state, and local drug laws and directed baseball’s athletic trainers that anabolic steroids should only be provided to players under a physician’s guidance.
Problem is, under traditional rules of extraterritoriality, the federal regulation of the use of performance enhancing substances does not obviously apply when such use occurs in other countries. And various sections of the Mitchell Report detail allegations of “illegal” use in Canada, Venezuela, and the Dominican Republic. (See pp. 33, 46-47, 95-99, 104-05, 204, 278-79).
I am not suggesting that the use of those substances is permitted in any of those countries. But from my reading of the Mitchell Report, it appears that the report omits materially relevant information about the governing law regarding the use of those substances outside the United States. There is almost no mention of Canadian law, and there is no mention whatsoever of Venezuelan law, Dominican Republic law, or for that matter, the 1971 Convention on Psychotropic Substances. Nor is there any explicit reference to the extraterritorial application of federal law to regulate the use of these substances abroad.
The syllogism drawn from the Mitchell Report appears to be that (1) Major League Baseball’s drug policy prohibits the use of “illegal” substances, (2) “illegal” substances are defined by reference to federal law, and (3) therefore, the use by any player of performance enhancing substances anywhere in the world violates Major League Baseball’s drug policy.
I’m not clear that that conclusion follows, although I am willing to be persuaded.
Let’s assume, with Neil MacCormick, that law is an institutional normative order [‘relative to any institutional normative system, there is a way, conclusive within the system, for determining what counts as an authoritative norm of the system, or a definitely established right or duty of some person under the system’] which, contra Kelsen, permits or recognizes radical legal pluralism and thus we might “fully endorse the normative quality of law while allowing for a radical pluralism such that objectively valid normative orders may give conflicting answers to the same point. That being so, there will not necessarily be any specifically legal method for eliminating the conflict–it is perfectly possible that conflicts will simply go unresolved, or that resolution may be a matter of political rather than legal processes.” On this account, state-law is “simply one form of law.” This granted or assumed, I think one can endorse the conclusion of the syllogism, although competing or contrary syllogisms might be constructed that are equally, legally speaking, legitimate. I doubt there is a compelling (i.e., trumping) syllogism for deciding between such syllogisms, but should baseball players want to be recognized as baseball players, they will, in the end and however reluctantly, see… Read more »
I might have mentioned, in spite of the tone of the above, and as noted at Sports Law Blog (http://sports-law.blogspot.com/), “First, despite what Mitchell says, baseball had no policy or regulation expressly banning steroids until September 2002, did not have testing with penalties until 2004 and did not ban HGH until 2005. [….] Second, Mitchell did not test anyone, relied mostly on the word of New York Mets clubhouse attendant Kirk Radomski and hearsay from anonymous sources, and yet accused dozens of players by name of taking or using these drugs.”
“(3) therefore, the use by any player of performance enhancing substances anywhere in the world violates Major League Baseball’s drug policy.”
I’m not sure (3) follows from (1) and (2). I haven’t read the report; but looking at some of the pages that Professor Alford cited, 95-99 concerns Juan Gonzalez’s bags with steroids in a domestic flight, and 104-105 describes Tejada’s injection of steroids during the baseball season, which means it was possession and use within the U.S.
Kirk,
I take your point. Not all of the conduct in those pages occurred exclusively outside the United States. I think footnote 144 on page 46 is of particular importance. In 2005 there was a 1.78% in-season positive test result percentage, but a 7% Dominican Republic summer season positive test result percentage and an 8.4% Venezuelan summer season positive test result percentage. Thus, it appears the use of these substances during the summer months in the Dominican Republic and Venezuela is significantly higher than during the regular season.
Roger Alford
I guess I still don’t see why it is relevant where the players might have possessed or used the drugs, at least from the perspective of MLB (i.e., why need they concern themselves with extraterritoriality issues at all?).
PSO: The question is the meaning of “illegal,” not what MLB should concern itself with. The Mitchell Report made a claim of illegality. And illegal means in violation of a law. So the question is, “Which law?” One could always answer that question by beginning with the question “What is Law?,” but no one is trying to do that here. It is a simple question of positive law, not jurisprudence. If the Mitchell Report needs to start relying on philosophers of law to make that simple claim of “illegality” persuasive, it’s in trouble. I am not saying I agree with original post. I am just saying I think you are missing the point.
Guest, The report is not simply about determination of legality/illegality, even if, from a legal perspective, its legal language is reckless. I understand part of your point: but cannot the MLB accept the federal definition of what constitutes a controlled substance or, in the end, that which is “illegal,” without getting involved in whether or not the use occurred outside federal jurisdiction? (It’s analogous to my reference to a neighbor’s use of illegal drugs: it matters little or at all whether that use was while she was at home next door or abroad on vacation in Spain; in either case I’ll make reference to her illegal drug use). In other words, the report’s use of what is legal or illegal is used here in a loose sense, for it is not a formal legal document in the strict sense, nor is it in a position to bring legal charges against its ballplayers. Now I would agree that there are myriad problems raised by the report as such when it comes to naming names, making accusations, etc. (see Matt Bodie’s post at PrawfsBlawg). However, the report is not simply about questions of legality/illegality, but about MLB players abiding by the normative… Read more »
While it is excellent to talk about Major League Baseball and I as an American am terribly troubled about what George Mitchell’s report says, I would like to take this opportunity to note that the subjects from December 4, 2007 to today December 14, 2007 on this blog have not addresses at all the CIA destruction of torture tapes or the aftermath which is roiling the American political class.
I would think that this topic on which a UN CAT expert has says suggests that torture was done would be worthy of discussion – at least a minimum of it.
I do not consider a posting on John Bellinger norm destroying (in contrast with norm entrepreneurs) is adequate in the face of what is clearly destruction of evidence and obstruction of justice and possibly perjury.
Best,
Ben
Hmmm…I’m not sure I agree with your premise. That a State may exercise extraterritorial prescriptive and enforcement jurisdiction over its nationals is a well-recognized principle of international law. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 402, 431 (1986). Maybe the particular law isn’t clear that it so applies, but it’s hardly a novel idea for a State to claim to regulate the behavior of its nationals while they are abroad.
Peter,
You are assuming that all major league players are Americans. They are not. According to this site, “after the United States, the Dominican Republic has the second-highest number of baseball players in the U. S. Major League Baseball. These include Sammy Sosa, Albert Pujols, Pedro Martínez, Vladimir Guerrero, David Ortiz, Jose Reyes, Manny Ramirez, Robinson Canó and Luis Castillo.”
Even if they were Americans, I don’t think the federal law that Mitchell is referring to applies to the use of performance enhancing substances abroad.
Roger Alford
Roger,
1. None of the names you mention are on Mitchell’s list.
2. I think we agree that the law Mitchell refers to probably does not clearly or obviously apply to overseas activity. This limitation likely has more to do with statutory drafting than with any principles of international law. (After taking a quick look through the Federal Controlled Substances Act, I see that a creative prosecutor might be able to concoct charges nevertheless against one who ‘distributes’ controlled substances overseas, per 21 USC 959(c), or if any money laundering took place overseas in relation to sales of controlled substances, per 18 USC 1956(f).)