The Legal Perspective on Baseball Hall of Fame Voting and Steroids
In each of his six years of Hall of Fame eligibility, Mark McGwire received less than 24 percent of the vote. With McGwire's case, the baseball writers who cast the ballots indicated that players who took steroids should not have a Cooperstown bust.
Will Barry Bonds get into the Hall of Fame?
This year's eligible class will test that stance more than any previous year. Barry Bonds and Roger Clemens -- arguably the greatest hitter and pitcher of their generation -- are on the ballot, along with steroid-era superstars like Sammy Sosa, Mike Piazza, and Jeff Bagwell.
But while McGwire has admitted to using steroids, many of the others players in this year's class fall under varying degrees of suspicion. And as more of that generation's players become eligible for the hall, the writers face a fundamental question: How do you punish the steroid users without unfairly denying entrance to clean players who only maybe took performance-enhancing drugs (PEDs)? Or, more straightforward, when can a voter consider a candidate's connection to steroids?
That's the question Wes Porter, a professor at Golden Gate University School of Law, sought to answer.
"The thing about the Hall of Fame," he says, "is we're using a bunch of people using a lot of different barometers to determine whether somebody took steroids."
Porter, with help from his graduate assistant, Dan Dressman, assessed the evidence against the candidates tied to steroid use, which he published on the baseball blog MLBReports.com. Porter, a former federal attorney, saw a legal analogy involving how evidence gets admitted in court.
Imagine a trial where a defendant is charged with assault and robbery. Prosecutors claim that the defendant punched a lady in the stomach, then snatched her purse. The defense team argues that the defendant had seen the lady steal the purse from somebody else, and that he grabbed it without any punch. In a basic trial, the jury must base their verdict on the merits of the case, such as physical evidence and witness testimony.
However, to show that the defendant has a history of violence, the prosecutors want to tell the jury that the defendant is in a gang, and that members of his gang have committed similar crimes in the past. The judge determines whether prosecutors will be allowed to mention the gang ties, and must instruct the jury on how to consider that evidence. If the judge allows it, it is up to the individual jurors to decide how heavily the gang membership, and the gang's history of robberies, will weigh on their judgement.
In a standard Hall of Fame vote, the writers base their selections on a player's merits -- the stats on the back of the baseball cards. But unlike in the legal example, here there is no judge to determine whether the writers can consider a player's possible steroid use. With all these steroid-era players lumped together under a "could have," some may be unfairly judged to have taken steroids despite little evidence.
"Without some guidance, it is inevitable that each writer will factor the varying levels of suspicion related to cheating and PED use differently," Porter wrote.
His analysis draws a line on "whether a reasonable voter (a Hall of Fame juror) could find that the bad act occurred by competent evidence."
For these cases, writers "may consider the fact that a candidate cheated":
1. any candidate that publicly admitted to using PEDs (McGwire)
2. any candidate that was convicted of an obstruction charge in a criminal court, based upon a denial about PED use (Bonds)
3. any candidate that failed a MLB drug test after 2004 as part of the MLB Mandatory Drug Testing Program (Palmeiro)
For these cases, a writer "may not consider, at all, the fact that a candidate cheated":
1. any candidate charged criminally by grand jury (a probable cause finding) with an obstruction charge based upon a denial about PED use, yet not found guilty at trial (Clemens).
2. any candidate merely named in the Mitchell Report, because investigatory agencies have countless investigations that do not materialize into anything, much less indictments (see #1 above). (Sosa) Simply put, an investigation is not itself competent evidence.
3. any candidate that failed an MLB drug test before the Mandatory Drug Testing Program was implemented in 2004 (Sosa again - strike 2?)
4. any candidate who purportedly admitted to PED use off the record or, not publicly, but only according to a third party (Piazza).
5. any candidate merely suspected as using based on appearances or relationships with other admitted PED users (Bagwell).
To Porter, Clemens and Sosa present the grayest cases.
Clemens, along with 88 other players, was named in the Mitchell Report, Sen. George Mitchell's investigation into steroid use in Major League Baseball. Clemens' teammate Andy Petite and trainer Brian McNamee made the accusations. When called before Congress, Clemens' denied using PEDs, which led to a perjury charge. In trial, though, Petite walked back his allegation, McNamee apparently came off as unreliable, and Clemens was acquitted.
"If I were a baseball writer, I would feel pretty comfortable thinking Clemens used beyond reasonable doubt," he says. "Now, he's indicted -- that's a mere probable-cause finding-- but he's not convicted. Indictment is not enough. Like they say, prosecutors can indict a ham sandwich."
Sosa actually tested positive for steroids in 2003, when MLB conducted "survey testing" too see if official testing would be necessary. The sport did not intend to use those tests to punish players -- it was more of a trial balloon. To Porter, this is a significant distinction -- the way blood drawn from a car accident victim in the hospital may not be allowed into court to show that a man charged with burglary has done meth in the past.
"This was getting tested for an internal investigation to determine whether the sport required certain provision, not being tested to find wrong doing," he says.
But Sosa has a credibility problem. He was once caught using a corked bat. And when he was called to testify before Congress to answer questions about steroid use, he claimed to need an interpreter, even though he had conducted countless English interviews and pressers over the course of his career.
"It shows his willingness to sort of stretch and cheat," says Porter, "and maybe the integrity of the game doesn't mean as much to him."
Porter's analysis does not seek to determine which candidates did and didn't take steroids, but rather who's steroid connection is strong enough for writers to consider.
Articulating the distinction is particularly important given that the level of scrutiny various players faced was somewhat arbitrary. Bonds got caught up in an investigation because the Feds raided BALCO facilities and found evidence of the Home Run King's use. However Bonds was not one of the 104 players who tested positive in 2003. And while Sosa was one of those players, he was not listed in the Mitchell Report. the fact is that some players have been fairly implicated, some players have likely been unfairly implicated, and many other players will, rightly or wrongly, never be implicated.
The root of the dilemma, says Porter, is that the sport's governing body has failed to address the role of steroids in Hall of Fame considerations, leaving the 537 voters to form their own conclusion.
"Why doesn't Major League Baseball weigh in, and why didn't they conduct investigations in the five years before these names came up?" wonders Porter. "They're doing the writers a disservice because they didn't find the answers to these things. They basically do nothing. They give the writers no guidance."