My Five-Step Ethical Analysis: Major League Baseball and Performance-Enhancing Drugs (PEDs)

Everyone who has ever known me for longer than a few minutes knows that I am a baseball fan. I have devoted thousands of hours over the past 55 years (I am 60; my first recollection of baseball is watching the 1958 World Series on TV, when I was 5 years old) watching baseball and studying baseball facts and statistics. I know a lot of baseball trivia and stats.

It therefore would surprise people how ignorant and confused I am about the steroids scandal in Major League Baseball, especially considering that in addition to being a baseball fan for 55 years, I have been a lawyer for the past 36 years. To this day, I don’t know whether steroids are legal or illegal. I know almost nothing about the drug laws and pharmaceutical laws. Are steroids legal in some states and illegal in other states? Are they legal with a doctor’s prescription in some states and without a doctor’s prescription in other states? Are they illegal in the sense that they violate the rules of baseball, or do they also violate the laws of the 50 states, or some of the 50 states, and/or federal law? If they violate the rules of baseball today (2013), did they violate the rules of baseball at the time the players used them? If steroids are illegal, that is, if they violate the laws of some or all of the 50 states and/or federal law, why has no Major League Baseball player (that I can think of) been prosecuted by the government for it? Why have the players who have been prosecuted by the government for a crime relating to steroids been prosecuted, not for possession of steroids, but for “lying” or being “evasive” about whether they possessed steroids? Players such as Ryan Braun, who yesterday (July 22) agreed to a 65-game suspension for an unspecified (as of this moment, 3:25 pm ET on July 23, I still don’t know exactly what Braun did or didn’t do) violation of baseball’s drug program, have been punished by Major League Baseball, not by the government. The whole controversy is a mystery to me. Moreover, I don’t know whether “steroids” are synonymous with “performance-enhancing drugs” (PEDs). Are all PEDs illegal? I simply do not know the answer.

With that lengthy introduction to what I know and don’t know about baseball, here is what I have to say today in this blog. I read on Yahoo! last week that John Rocker, a former Major League pitcher who created something of a stir when he made some derogatory remarks about some people in the late 1990s or early 2000s (I don’t recall the exact date he made the remarks), says baseball was a “better game” in the late 1990s and early 2000s, when the players were using steroids, than it is in 2013. In 2013, supposedly, MLB has cracked down on steroid use. We are led to believe that far fewer, if any, players are using steroids today. No longer are players hitting 70, 60, or even 50 home runs a season, although Chris Davis of the Orioles and Miguel Cabrera of the Tigers are on a pace to hit 50 or more in 2013. When Mark McGwire and Sammy Sosa were each on a pace to break Roger Maris’s record of 61 home runs in a season, a record set in 1961 (61 in ’61), in 1998, the ballparks were packed with fans. Today I see empty seats at Fenway Park and many other ballparks. In the past five years, only one player (Jose Bautista) has hit 50 or more home runs in a season (Bautista hit 54 in 2010).

Perhaps we should ignore what Rocker said about steroids and whether they improve or diminish the game. Instead, let us analyze the steroids controversy according to my five-step ethical analysis. Let’s ask a question that some people are asking: Should MLB allow players to use steroids? If the game is more exciting when the players are using steroids, should MLB allow them? Let’s step up to the plate and take few swings at the five questions.

Question 1. Is it illegal? What do I mean by “it”? I mean, Would it be illegal if Major League Baseball were to allow players to use steroids? The answer depends on whether steroids are legal or illegal under federal law and the laws of states in which Major League Baseball is played. As I said above, I don’t know whether they are legal or illegal. If they are illegal, that ends our analysis. For, even if MLB were to “allow” players to use steroids, that would not give players the right to use steroids. If steroids are illegal according to the laws of the U.S. Government or the State governments, MLB should not allow them. Plain and simple.

But what if steroids are not illegal according to the laws of the U.S. Government or the State governments? Or what if they are legal with a doctor’s prescription and a doctor prescribes them for a player? Should MLB allow players to use them? We go to Question 2.

Question 2. Is it a tort, breach of contract, or other activity that might cause someone to sue you (in this case, “you” are Major League Baseball or a MLB team) in court and win? If the answer to Question 1 is no (again, I don’t know if the answer to Question 1 is yes or no; I’m just saying that if the answer to Question 1 is no), my guess is that the answer to Question 2 is no. We go to Question 3.

Question 3. Will it offend people, and if so, will it offend enough people so that the amount of money you lose by doing it is greater than the amount of money you gain by doing it? In this case, many people would be offended if MLB were to allow players to use steroids or PEDs. But are there enough such people to offset whatever gains MLB would make having players hitting more home runs? I don’t know the answer to this. One problem—and this might be due to my lack of knowledge about steroids, medicine, biology, and chemistry (I should have spent more time studying science than baseball)—I don’t know whether there is a clear definition of what is and isn’t a “performing-enhancing drug” (PED). What if a player eats carrots to improve his eyesight at home plate? Are carrots a “drug?” They are made of chemicals. All matter is made of chemicals. I will end this analysis here. I don’t know the answer to questions 1, 2, or 3. That’s three strikes and I’m out. I have no reason to try to answer questions 4 and 5.

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