This figures to be a test of union's cooperation

By Michael A. Hiltzik and Henry Weinstein

Dec. 14, 2007 12 AM PT

Times Staff Writers

Former Sen. George Mitchell’s blistering 409-page report on steroid abuse in baseball, released Thursday, amounts to a road map for further tightening of the sport’s anti-doping policies -- one that is likely to put intense pressure on the baseball players’ union to agree to a tougher program of drug tests and possibly tougher sanctions for abusers.

But Mitchell’s investigation also may have sowed the seeds of further conflict between Major League Baseball and the Players Assn., the two parties whose mutual cooperation is indispensable if any changes are to be made in the existing program.

On the surface, baseball seems to have won the immediate contest to seize the high road on the doping issue, a matter of fierce public and political debate. Mitchell’s report dominated sports talk and news coverage all day, portraying baseball as fallen prey to the steroid culture for a decade and at risk from abuse of human growth hormone.

Its release allowed Commissioner Bud Selig to commit the major leagues to a policy of rigorous eradication of performance-enhancing substances from the clubhouse and the quest for a reliable test for HGH, which is currently undetectable.

Selig told a news conference in New York that he would unilaterally implement some of Mitchell’s 20 specific recommendations. They include proposals to work more closely with law-enforcement agencies, make sure team officials report suspected drug violations promptly to MLB and intensify anti-drug education programs for players.

But many other recommendations, including the most ambitious, require the union’s approval under the current collective bargaining agreement, which runs to 2011. And Players Assn. Executive Director Donald Fehr made plain in his news conference that baseball’s failure to give the union a role in the Mitchell investigation from the outset had turned it into an adversarial affair and undermined its goals.

Fehr especially took issue with the report’s naming of 86 current and former players as accused dopers.

“Many players are named, their reputations have been adversely affected, probably permanently, even if it turns out down the road that they should not have been,” he said.

As recently as two days ago, he said, the union’s request for an advance copy of the Mitchell Report was rejected. Fehr called that refusal “unfortunate” and suggested that it reflected the report’s nature as the baseball owners’ document.

Such signals of friction over the report are troubling, legal experts say, because drug testing is a legitimate topic for collective bargaining -- and the core of Mitchell’s recommendations is the creation of a more effective testing program. “It should be just; it should be fair; it should be negotiated,” said Paul Haagen, a sports law expert at Duke University law school.

The union is under no legal obligation to bargain over changes to the drug program until the current collective bargaining agreement expires.

“Under labor law, they can tell baseball to whistle Dixie,” said Robert J. Kheel, a labor lawyer at Willkie Farr & Gallagher and a lecturer at Columbia Law School.

But he also questioned whether that would serve the union’s overall membership. Kheel noted, for example, that the Mitchell Report identified only 86 supposed users -- all but a handful of them middle-of-the-pack talents whose careers were not noticeably lengthened or enhanced by drug use. Also, with some of those 86 linked to drugs as long ago as nine years, he argued that the report demonstrates that the vast majority of players are clean.

“That means the majority didn’t do anything [wrong] and were unfairly cheated” by the guilty, Kheel said. “The union should say, we work for every player.”

Cooperation between baseball and the union also will be necessary to preempt action by Congress, which has interested itself in issues of sports doping for several years. Indeed, a round of congressional hearings on steroid abuse, which featured the public grilling of MLB officials and such high-profile stars as Mark McGwire and Rafael Palmeiro, were largely responsible for goading baseball and the union into sharply raising penalties for positive drug tests in 2005.

Two congressional committees involved in the 2005 investigations moved Thursday to apply more pressure to the sport and its players. The House Oversight and Government Reform Committee said Selig, Fehr and Mitchell would testify Tuesday.

“We look forward to their testimony on whether the Mitchell Report’s recommendations will be adopted and whether additional measures are needed,” Reps. Henry A. Waxman (D-Beverly Hills) and Tom Davis (R-Va.), the committee chairman and ranking member, said in a joint statement.

Meanwhile, the Energy and Commerce Committee’s Subcommittee on Commerce, Trade and Consumer Protection, which unsuccessfully proposed a “Drug-Free Sports Act” in 2005, scheduled a hearing for Jan. 23.

The one recommendation in Mitchell’s report likely to cause the most conflict between the union and MLB is his call for mandatory year-round unannounced drug testing.

The current major league program involves a minimum of two tests per player per year, one administered at the beginning of spring training and the second on a random date during the season or postseason playoffs. MLB is permitted to perform a maximum of 60 off-season tests on players. Further tests can be performed only on a showing of “reasonable cause” in an individual player’s case, according to the Mitchell Report.

Sports doping experts have long held that unlimited random tests during the off-season offer the best opportunity for catching cheats. That’s because many performance-enhancing substances, including anabolic steroids and human growth hormone, are used to improve the effectiveness of training, rather than for a direct boost in a game or race. By the time of competition, the substances often have been cleared from the body, and thus remain undetected.

But athletes’ advocates tend to regard such random testing as a violation of civil liberties. At the Major League Baseball Players Assn., that position dates to the 1980s, when it agreed to let the commissioner’s office request off-season testing only if there was a reason to believe an athlete was abusing drugs. The program was unilaterally canceled in 1985 by then-commissioner Peter Ueberroth, who contended it was not sufficiently stringent. Ueberroth was said to be traveling Thursday and unavailable for comment.

Marvin Miller, the union’s founding director, was a staunch foe of Olympic-style random drug testing. In a 2002 interview he said rules allowing athletes to be tested anywhere and at any time were “an absolutely outrageous violation of a person’s individual rights.”

Fehr suggested Thursday that the union’s position may not have changed significantly. “It seems to me that in the regular course of events, the general notions in the U.S. Constitution ought to apply in business,” he said. “Before you do a search of an individual, you ought to have some reason, related to that individual, to do a search.”

He also questioned whether a heightened program is needed. Mitchell’s report, he said, does not indicate that the current anti-doping program is failing, noting that it found steroid use “appears to have declined” since baseball drug testing began in 2002.

However, the report said that HGH use has risen.

Fehr said that he had not had a chance to read Mitchell’s report thoroughly. Once he does, he may find much in it to dislike. Mitchell criticizes the union as “largely uncooperative” in his inquiry and accuses it of having discouraged athletes from speaking with him.

Only one current player alleged to be a steroid user, Jason Giambi of the New York Yankees, is known to have been interviewed by Mitchell. The report says Frank Thomas of the Toronto Blue Jays also spoke with Mitchell, but he was not named as a drug user.

The union leader said he had no choice but to advise current players that submitting voluntarily to Mitchell’s questioning might expose them to disciplinary action or criminal prosecution. Fehr said most of those contacted by Mitchell’s staff obtained private counsel, on the union’s advice.

He also suggested that Mitchell’s naming of 86 accused drug users, identified in the “absence of procedural safeguards,” validated his concerns about the investigation.

Indeed, naming names drew broad criticism from legal experts Thursday. The accusations in many cases were “based on what, in court, would be referred to as hearsay,” said Kent Shropshire, director of the Wharton Sports Business Initiative at the University of Pennsylvania’s Wharton School of Business. “For many of these men, no matter how this plays out . . . it will be very difficult for them to regroup.”

He said the release of names also dilutes Mitchell’s message of forgiveness, calling on Selig to “forego imposing discipline” on the named players as a way of closing “this troubling chapter in baseball’s history.”

“That does not defuse the impact of your name appearing on this list in this day and age,” Shropshire said.

Times staff writer Faye Fiore in Washington and correspondent Ross Newhan in Los Angeles contributed to this report.

michael.hiltzik@latimes.com

henry.weinstein@latimes.com

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On their to-do list

Summation of the Mitchell Report’s recommendations:

Higher priority should be placed on investigating non-testing evidence.

* A department of investigations should be established, led by a senior executive who operates independently but reports directly to the president of Major League Baseball.

* MLB should more effectively cooperate with law enforcement agencies.

* MLB should use the clubs’ powers as employers to investigate violations.

* Teams should have clear policies relating to substance violations.

* There should be logging of packages sent to players at the ballpark.

MLB should improve its educational program on the risks of using performance-enhancing substances.

MLB’s drug-testing program should be regularly updated in cooperation with the league and the players’ association.

* The program should be independent of the league, teams and players’ union.

* Transparency of the program should be achieved by outside audits and the publishing of periodic aggregate reports.

* The testing program should be year-round and unannounced.

* The program should be able to employ the best testing practices as they are developed.

* Teams should perform background checks on prospective clubhouse personnel and random drug testing after they are hired.

Establish hot-line or ethics committee for reporting anonymous tips.

Top 100 prospects should be tested before June’s annual draft.

The commissioner should not discipline players for past violations except in those cases where it is determined “the conduct is so serious that discipline is necessary to maintain the integrity of the game.”

Los Angeles Times

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By the numbers

409 - Pages in the report

700+ - Total number of witnesses interviewed

0 - Active players who contacted investigators after a

memorandum was sent to each asking them to make contact if they had relevant information

550+ - Former club officials, managers, coaches, team physicians, trainers or security officials among the witnesses

68 - Players who agreed to be interviewed

115,000 - Pages of documentation provided by the commissioner’s office

20,000 - Electronic documents retrieved from the computer systems of the commissioner’s office and several major league teams

86 - Major league players connected to illegal performance-enhancing drugs