No strikes and you’re outted

Even baseball players deserve to be regarded as innocent until proven guilty. 

Four score and several baseball players have been accused of cheating by ingesting “performance enhancing” substances such as anabolic steroids and human growth hormone.

The accuser? Former Senator George Mitchell of Maine. The former Senator has apparently scored big against baseball, lecturing to America about an issue that most ordinary Americans understand far better than he does. Mitchell’s “private” report to major league baseball bears a pretentious title: Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball. The report has ruined or attempted to ruin the reputations of athletes who now have the difficult position of trying to prove a negative.

The report fails fundamental tests of fairness and honesty. The evidence he presents is at best flawed and at worst manufactured. Sports writers have jumped on Mitchell’s bandwagon, accepting uncritically the report’s accusations. Mitchell is in the same position. He has nothing at stake. And, as he himself says casually about his report, a “standard of evidence was not necessary.” What if the MLB players association investigated the senator in the same way? Imagine finding a few disgruntled hangers-on who were willing to say that Mitchell did this or that, and giving them a forum completely protected from retribution. How would former Senator Mitchell, or most of his colleagues (or most of us), stand up to that?

One gets the impression that many of the people who believe the report have not read it. Its evidence is weak. It is cloaked in and padded by pseudo-scholarship about the history of drugs in baseball and the effects of drugs on performance. But, in the end, the report relies on a few documents and a few very suspect witnesses to smear players who have, however bloated their salaries are, no way adequately to respond.

Mitchell’s report names names, making sure to include a few that are guaranteed to appeal to the lust of an uninformed public. He claims, sounding innocent enough, that he gave every player whose name he was to defame an opportunity to talk with him. The hubris of this attitude aside, why would any man agree to prostrate himself before an extra-legal committee to answer the equivalent question, “when did you stop beating your wife?” Their refusal Mitchell takes to be a sign of guilt, and therefore their names are put into the public arena as drug abusers, to be savaged accordingly in the media.

Senator Mitchell relies on strained logic. He says that the witnesses against the accused players were interviewed in the “presence of federal law enforcement agents who informed [them] that if they made false statements they would subject themselves to possible criminal jeopardy. So there was very strong incentives [sic] to tell the truth.” In fact, the two, the only two, key witnesses in his investigation are both men whose only motives for naming names is to get prosecutorial leniency for their own wrong-doing.

One of the two key witnesses is Brian McNamee. He was Roger Clemens’ trainer, apparently a good one, but also the man who said that he produced Clemens’ success in 1998 with “performing enhancing” drugs. McNamee hung around the Yankees (after leaving the New York City police force for reasons nobody has yet disclosed). Then he got a job as a strength and conditioning coach. He met Clemens in Toronto, moved back to the Yankees with him, was fired after a murky date rape charge, and was later nabbed by authorities for having passed along various drugs to athletes in his care. He was the one who gave up Roger Clemens and Andy Pettite as part of an apparent plea bargain.

In the online version of the report, two things stand out: first, there are no sources of evidence against Roger Clemens except Brian McNamee; second, Roger Clemens did not talk with former Senator Mitchell. Does this justify the rush to judgment by hundreds of sports writers? Does this give us any reason to believe Mitchell (or McNamee) and not to believe Clemens, who through his lawyer (and now on taped releases and 60 Minutes) has categorically denied the charges? Indeed, Mitchell “did not think a standard of evidence was necessary.”

His excuse, according to the Associated Press, is that it was a “private inquiry.” It was, in fact public from the moment that Major League Baseball commissioned it. To say that Mitchell is disingenuous on this point is to give it a very generous interpretation. For him to use this as an excuse for the public execution of reputations is dishonorable. It also protects everybody involved in the report. According to Chicago attorney Keith Scherer, neither Clemens nor anybody else accused in such a manner has legal options to reply unless they can prove the negative, show that the report’s intent was malicious, and expose virtually all aspects of their private lives to an investigative process. As Mr. Scherer says, “It’s hard to imagine a baseball player who would want to let that kind of information out of the can.”

Former Senator Mitchell’s report does not address several larger problems. What, for example, is “performance enhancing?” Various sports give varying answers, but nobody, including (and especially) the Food and Drug Administration knows what enhances what and what harms what. Or take cortisone, or other pain killing treatments that athletes in all sports have been using from the moment they became available? What’s the difference between shooting up to mask pain and Andy Pettite taking some HGH to help his elbow heal a little quicker? The potential for hypocrisy is present in any intelligent conversation about such complicated topics. Former Senator Mitchell’s report treats blithely a medical and moral issue too complicated for unsubstantiated charges.

Former Senator Mitchell needs to be reminded that he is not the ethical arbiter in this case.

Dr John Willson has been a professor for over four decades, most of them at Hillsdale College.

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