Seems Athletes Have Lost Their Legal Legs

The question so far has been: Did they break the rules?

The next question is: Do those rules make sense?

Talking about Barry Bonds and Marion Jones. Talking about Tim Montgomery and Jason Giambi. Talking about all of those athletes whose names have been made public during investigations of possible illegal steroid use.

We know the rules. If you test positive for steroids, you’re in trouble.

Track and field bosses in the United States have an even more stringent standard. They can rule against you based on circumstantial evidence; they don’t need to be convinced “beyond a reasonable doubt,” but only to “comfortable satisfaction.” Here, Marvin Miller laughed out loud.

“ ‘Comfortable’? To whom? The judges, eh? Oh, boy.... It’s absolutely a terrible standard, especially when put together with the penalties they’re talking about. Lifetime suspensions in some cases. The two just don’t go together.”

Marvin Miller is one of sports’ wise men. He’s now 87 years old. For 16 years, he was the executive director of the Major League Baseball Players Association. His work changed baseball in so many positive ways that he should be in the game’s Hall of Fame.

What gave his work its power was that at its heart it was based on the concept that a player has rights that cannot be taken from him. Using those rights, baseball players gained equal footing in bargaining with club owners who for a century and more had regarded players as indentured servants.

The Marion Jones’ and Tim Montgomerys of the 21st century track world have no such power and no such rights. Like every other world-class track and field athlete, they gave them away in return for the so-called privilege of competing. They agreed to random, unannounced, any time/anywhere drug testing, and they agreed to the use of circumstantial evidence against them. They agreed to dance to their bosses’ tune.

What’s happening now to Jones and Bonds makes no sense to Miller. He accepts neither argument about the use of steroids, that 1) they’re bad for your health, or 2) they enhance your athletic performance. Worse, in the current climate, he says athletes may have been denied their constitutional right against self-incrimination.

He said, “There are those that raise the health considerations -- not the Olympics people, they don’t care -- I care about that, too, and I part company with these people in that I don’t know of any decent scientific evidence anywhere about the health aspects.”

What’s “decent” evidence is arguable. Many physicians and scientists insist that research shows the abuse of steroids -- the abuse, if not legal use -- has been linked to illness and disease as deadly as brain cancer.

Miller gives a little ground: “I feel, nevertheless, that’s it’s serious enough that I do approve of outlawing substances that you don’t know about, pending further information.”

And yet: “I’m highly suspicious of people who pretend the health aspect is the most serious one. People who don’t raise their voices or raise their pens or use their influence to deal with products that are known to be killers....Tobacco is the No. 1 cause of avoidable death in the United States.”

As example of influential people not using their influence in the most productive ways, Miller cited a former baseball club owner now otherwise employed, George W. Bush, who recently called on sports organizations to get rid of steroids: “We have a president with all the responsibilities in the world devoting valuable time in his State of the Union speech to things like steroids without a word about tobacco.”

If the evidence on health risk is slight, Miller insists it’s all but nonexistent on performance. “They are jumping to conclusions. I don’t have any scientific basis for saying it doesn’t enhance performance. But I don’t think it’s up to anybody to prove a negative. Those people who are so confident it’s enhancing the performance of major league baseball players, I don’t know where they’re coming from.”

Players may become bigger and stronger, and such muscling up certainly would help “a football linebacker or a professional wrestler or a saloon bouncer,” Miller said. “But I have yet to see the evidence that that makes for a greater ability to hit major league pitching.” Might not greater strength enable, say, a Barry Bonds to hit a baseball farther?

“Let’s go back to the ‘pre-steroid’ era,” Miller said. “He hit them pretty far. So you add 10 feet, 20 feet, so what? If you hit them out of the stadium anyway, what difference does it make? I just don’t understand the whole argument.”

The darkest aspect of these steroids investigations has nothing to do with sports and everything to do with a citizen’s rights under the U.S. Constitution.

Miller sees the possibility that athletes have given testimony that could become self-incriminating and might even send them to jail.

“Human nature is human nature,” he said, and so, without counsel present in a grand jury proceeding, an athlete might think to protect his livelihood by denying any connection to steroids -- only to have a connection proved by federal authorities. He might then face charges of perjury with his grand jury testimony as evidence. The result would be a loss of the constitutional guarantee that no citizen can be required to give testimony against himself.

“To me, that’s more frightening than all the steroid users put together,” said Marvin Miller, a wise man.