Thursday, December 13, 2007

Fisking the Mitchell Report -- Part 1

I may come to regret it, but here's a stab at fisking the Mitchell Report. For now I will limit it to the first 50 pages or so, which constitutes the summary and recommendations. This, I feel, is the meat of the thing, providing as it does an entire overview of what he did, why he did it, and what he thinks should be done going forward. If you, the reader, decide that you like this level of minutiae, I will continue on over the next couple of days and fisk the whole damn thing, probably in installments. Please let me know your thoughts about it in the comments. If you're already sick of this after one installment, I can logically stop here and say that I've done my job.

So, without further ado, we begin some overanalysis of the things that interest me in the Mitchell Report.

Page SR-1:

This report, the product of an intensive investigation, describes how and why this problem emerged. We identify some of the players who were caught up in the drive to gain a competitive advantage through the illegal use of these substances. Other investigations will no doubt turn up more names and fill in more details, but that is unlikely to significantly alter the description of baseball’s “steroids era,” as set forth in this report.

I have always cringed at the term "steroids era" being used to describe post-1992 baseball. It was the lazy invention of some moralizing sportswriters, and I think it paints with far too broad a brush, serving to delegitimize everything that has happened in the past 15 years. Unfortunately, Mitchell has now legitimized the term, so I presume it is here to stay.

While this investigation was prompted by revelations about the involvement of players with the Bay Area Laboratory Co-Operative, the evidence we uncovered indicates that this has not been an isolated problem involving just a few players or a few clubs. It has involved many players on many clubs. In fact, each of the thirty clubs has had players who have been involved with performance enhancing substances at some time in their careers.

There goes the criticism that Mitchell was going to somehow whitewash any Red Sox involvement. I thought it was a stupid criticism -- how transparent would that have been? -- but at least it has been put to rest.

Page SR-2

Mandatory random testing, formally started in 2004 after the survey testing results, appears to have reduced the use of detectable steroids, but players switched to human growth hormone precisely because it is not detectable.

Mitchell mentioned HGH a lot in his statement today, and while I haven't read ahead, I get the sense that HGH will constitute a major part of the report's finding given that HGH-dealer Radomski was his primary source. Still, I hope Mitchell makes some effort to distinguish between steroids and HGH use, because from what I understand, the science behind what HGH does for a guy is nowhere near as settled as it is for steroids.

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Among current players I asked to interview were five who have spoken publicly about the issue. When I did so, I made clear that there was no suggestion that any of the five had used performance enhancing substances, and I repeat here that clarifying statement. Four of the five declined. One of them, Frank Thomas of the Toronto Blue Jays, agreed. His comments were informative and helpful.

And with that, the Big Hurt's Hall of Fame credentials have been secured.

Since 1986, drug testing has been subject to collective bargaining in Major League Baseball. For many years, citing concerns for the privacy rights of players, the players Association opposed mandatory random drug testing of its members for steroids or other substances. On the other side of the bargaining table, the owners and several Commissioners proposed drug testing programs but gave the issue a such lower priority in bargaining than economic issues. But when the opportunity was presented in 2002 to achieve agreement on a system of mandatory random drug testing, the Commissioner pressed hard on the issue and the Players Association agreed to the basic elements of the program that is in place today.

This remedies one of my earlier criticisms. During his statement this afternoon, he implied that the players had no good reason other than stubbornness for opposing testing during previous collective bargaining sessions. I'm glad to note that Mitchell acknowledges a reason for players to oppose testing other than some blind desire to cheat with impunity.

Page SR-4:

Plainly, baseball needs to do more to effectively address this problem. I have never met or talked with Jeff Kent of the Los Angeles Dodgers, but he appears to have understood this when he said in September, as reported in several newspapers: “Major League Baseball is trying to investigate the past so they can fix the future.”

I believe this marks the first time a comment from Jeff Kent has been held up as an example of "understanding" of anything, ever.

In summary, [the recommendations] fall into three categories: (1) Major League Baseball must significantly increase its ability to investigate allegations of use outside of the testing program and improve its procedures for keeping performance enhancing substances out of the clubhouse; (2) there must be a more comprehensive and effective program of education for players and others about the serious health risks incurred by users of performance enhancing substances; and (3) when the club owners and the Players Association next engage in collective bargaining on the joint drug program, I urge them to incorporate into the program the principles that characterize a state-of-the-art program, as described in this report.

That's the meat of it folks. I have no objection to greater education and implementation of a state-of-the-art testing program. Recommendation number 1, however, seems problematic, mostly because it seems to be a defacto power grab on the part of MLB outside the parameters of the collective bargaining process (note the lack of a caveat about player agreement as seen in recommendation number 3). Given Mitchell's position in baseball management, and given the knowledge that any reluctance on the part of the players to go along fully with his report will result in Congressional action of some kind, Mitchell, essentially, just granted unprecedented powers to ownership.

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The Players Association was largely uncooperative. (1) It rejected totally my requests for relevant documents. (2) It permitted one interview with its executive director, Donald Fehr; my request for an interview with its chief operating officer, Gene Orza, was refused. (3) It refused my request to interview the director of the Montreal laboratory that analyzes drug tests under baseball’s drug program but permitted her to provide me with a letter addressing a limited number of issues. (4) I sent a memorandum to every active player in Major League Baseball encouraging each player to contact me or my staff if he had any relevant information. The Players Association sent out a companion memorandum that effectively discouraged players from cooperating. Not one player contacted me in response to my memorandum. (5) I received allegations of the illegal possession or use of performance enhancing substances by a number of current players. Through their representative, the players Association, I asked each of them to meet with me so that I could provide them with information about the allegations and give them a chance to respond. Almost without exception they declined to meet or talk with me.

This will probably be widely quoted, but I'm not sure how Mitchell could expect anything different. While today Mitchell strongly recommended that no retroactive discipline be meted out based on anything in the report, no such comments had ever been made before. In the face of Mitchell's uncertain mandate and the prospect of random, due-process free punishment, why would any player agree to cooperate with the probe? If, at the outset, Selig had agreed not to impose any ex-post-facto punishment, maybe cooperation would have been forthcoming.

Page SR-14:

Reports of steroid use in Major League Baseball began soon after the widely publicized discipline of Canadian sprinter Ben Johnson at the Summer Olympic Games in September 1988. Jose Canseco of the Oakland Athletics was the subject of the first media speculation about his use of steroids, and Boston Red Sox fans taunted him for his alleged steroids use during the 1988 American League
Championship Series.

And the beginning is pegged. I'm a bit dubious, though. Anyone ever try to talk to Brian Downing? Anyone ever dig beyond Canseco? I ask mostly because I can't get comfortable with the idea that Jose came up with anything himself. He's just not that bright and doesn't seem that ambitious. He is a convenient starting point, though, even if he's not a likely one.

Page SR-17-22:

Mitchell names his primary sources: (1) the BALCO investigation; (2) Radomski and former major league strength and conditioning coach Brian McNamee; and (3) investigations of Signature Pharmacy and the like which have gone on in the past year or so. Obviously the man can only go with what he's got, but given how prevalent he claims steroid use is among kids, one would think that any player could easily obtain PEDs from dealers and places that aren't subject to large, high-profile law-enforcement actions. Just as your friend the junkie doesn't buy his stuff from a big distributor, my sense is that a smart ballplayer buys his PEDs from someone with a much lower-profile than the sources upon which Mitchell relies.

Page SR-23-28:

Examples cited of some of the holes in the random testing program. This, I think, is a big issue. Much bigger than the name-naming, anyway. The point of all of this is not to totally eliminate PEDs. Fans accept that there will always be some PED abuse. The point, I think, is to make people feel comfortable that the system isn't a sham and that at least some effort is being made to try and fairly and regularly police PEDs. Right or wrong, people think the NFL has such a system, which is why no one really cares that an MVP-caliber player like Shawne Merriman gets caught. Baseball has to create an environment in which people don't consider it all that newsworthy to hear of players linked to PEDs, and having a bulletproof system is the key to that.

Page SR-26-27:

Former player Larry Bigbie is cited as one of the former players who cooperated with the investigation. Bigbie played for the Orioles from 2001-2005. The report names a boatload of Orioles from that era. I think it's safe to say that Larry Bigbie will not be on the invitation list for the banquet celebrating the 2001-2005 Orioles. That is, he wouldn't be if those teams had ever done anything worth celebrating.

Page SR-28-32:

Some specific recommendations are provided. Most notable among these are to create a "Department of Investigations" led by someone who, no doubt, will quickly come to be called the 'roids Czar. According to Mitchell, this guy should be given the power to act quick and kick ass. My first thought upon reading that was that it would be someone like Bob Watson, who goes around and fines managers for not wearing jerseys. Mitchell imagines this person would interface with law enforcement, however, so methinks he has something greater in mind. I can't imagine anything like that happening without reopening the collective bargaining agreement first. One also wonders why on Earth law enforcement would ever be willing to share information with a 'roids Czar the way Mitchell describes, given how it could easily compromise ongoing criminal investigations and subject cops and prosecutors to a million public records requests. What else ya got, George?

The Commissioner also should strengthen existing efforts to keep illegal substances out of major league clubhouses. Given the evidence that many players have had steroids and human growth hormone shipped to them at major league ballparks, packages delivered to players through their clubs should be logged and tracked.

I always wondered why in the world players had banned drugs shipped to the clubhouse. Of course, most ballplayers didn't go to college, so we can't expect them all to have thought this through all the way.

Second, improved educational programs about the dangers of substance use are critical to any effort to deter performance enhancing substance use.

I like this in principle, but ask yourself, did the D.A.R.E officer that came to your school in the fifth grade keep you from firing up the bong and listening to Marley during your freshman year? Me neither.

Next, Mitchell recommends establishing the sort of bulletproof testing that I think everyone wants to see. He notes, however, that that may be easier said than done:

The current joint drug program is part of the Basic Agreement that was agreed to in 2006 and will remain in effect until 2011. Any changes to the program therefore must be negotiated with and agreed to by the Players Association. Neither party is obligated to agree to reopen the Basic Agreement to address the program, even though that is what happened in 2005. There is no way for me to know whether that will happen again.

Again, given that Congress is hot to pounce in the event the players so much as sigh too loudly at Mitchell's recommendations, I have this feeling Mitchell said this for the express purpose of ensuring that Basic Agreement be reopened. An offer the players can't refuse, if you will.

Page SR-32:

All of these recommendations are prospective. The onset of mandatory random drug testing, the single most important step taken so far to combat the problem, was delayed for years by the opposition of the Players Association.

Wait, didn't he blame both players and management before? Careful George, your bias is showing.

Page SR-33:

I urge the Commissioner to forego imposing discipline on players for past violations of baseball’s rules on performance enhancing substances, including the players named in this report, except in those cases where he determines that the conduct is so serious that discipline is necessary to maintain the integrity of the game. I make this recommendation fully aware that there are valid arguments both for and against it; but I believe that those in favor are compelling.

As I said earlier, I agree with this wholeheartedly. I wish he would have said this -- and gotten Bud to sign on -- back in 2006. If he had done so, maybe he would have gotten more cooperation. One caveat, though:

The Commissioner should give the players the chance to make a fresh start, except where the conduct is so serious that he must act to protect the integrity of the game.

Mitchell denied it when asked about it during the press conference, but I can't help but think that this passage will one day come to be known as the "Bonds Clause." So many in the media and around the sport are so invested in the notion that Barry Bonds is the Antichrist, that there has to be some way to continue to demonize him while finding ways to pardon Roger Clemens, Andy Pettitte, and other players everyone likes. If I had to guess, the non-testing endgame to this whole drama will be (a) letting Bonds' perjury trial play out; and (b) crucifying him for all of baseball's sins, based on the notion that he, more than anyone else, compromised the integrity of the game.

And there it is. The Mitchell Report, in all of its summarized glory. As I said above, if you like this micro-analysis, please let me know and I'll continue. If not, we'll let it die.

Update: The masses have spoken, so I'll continue. For Part 2, go here.


jnr98 said...

Hell, I just read the first 2 paragraphs and I already want more. I am printing the rest to read at my leisure. Great work, Shyster.

Shyster said...

Thanks, man. I'll probably work on it over the next day or so.

Marc in Tallahassee said...

I definitely like it. I've skimmed the juicier bits of the report and already know a good bit about it, but a Shyster summary would be an invaluable online resource. I can't wait to see what you think about the "code of silence" stuff. That, more than anything else in the report, angered me. Keep up the great work!

Christopher said...

Agreed. Nice work.

Osmodious said...

Please continue...with the approach of this whole thing this week, your analysis is what I looked forward to most (not only as an excellent baseball analyst, but as an attorney as well).

Thanks for all the hard work, it is much appreciated by those of us who know we would fall asleep before the end of the first section!

Jason said...

Yes, please continue--especially if you can work in more Jeff Kent jokes.

Damon Rutherford said...

Thank you sir, may I have another!?

Good stuff, CC.

rone said...

For it to be called the Bonds Clause, it needs to be shown that Bonds actively attacked the integrity of the game in a way that was above and beyond everyone else. And breaking Aaron's record isn't any more significant than McGwire breaking Maris's record. Baseball's obsession with its own records is, frankly, rather unhealthy.