The first witness, former Sen. George Mitchell, author of the Mitchell Report, was way more polite than I would have been, and I'm pretty polite when under oath. "It has been settled law in the United States for more than 20 years that drug testing in the workplace is a subject of collective bargaining in those employer-employee situations where a recognized bargaining unit exists," he said.
Players association chief Donald Fehr, who along with commissioner Bud Selig followed Mitchell at the witness table, kept having to explain the same thing, and he used real simple words so our elected representatives could understand him. At one point he launched into that explanation to Del. Eleanor Holmes Norton, D-D.C., and she stopped him.
"Let me begin by stating something which is obvious to labor lawyers but perhaps in this day and age isn't as well known," he said. "Under the law, we have the legal right but more importantly the responsibility to negotiate all terms and conditions of employment --"
"You don't have to go -- I taught labor law," Norton said.
"I apologize," Fehr said. But could you blame him? By that time he'd been trying to dumb it down for almost two hours.
Rep. Mark Souder, R-Ind., who had a better moment later on, asked Mitchell whether baseball was capable of regulating itself. He called players' lack of cooperation with Mitchell a "horrific and terrible role model for Americans all over this country and kids, because we could not prosecute any drug abuse in America if Americans followed the pattern that baseball players did."
"Literally," he continued, "one either former or current player coming forth is a humiliation. If that were followed by other Americans, we would be in a disaster in our society."
Then he noted that the major revelations about drug abuse in baseball came as a result of the BALCO investigation. "There was really no legal breakthrough [in Mitchell's probe]. You didn't have subpoena power. You didn't have the ability to grant immunity, which we usually work with in narcotics cases."
Wait, I thought the War on Drugs was such a success because Americans fortunately don't follow the horrific and terrible example of baseball players, instead voluntarily coming forward to tell their tales. What's this stuff about subpoenas and immunity?
Mitchell had told the committee he had to catch a train. Really. He was probably thinking, "Why didn't you clowns just read the report?" But he was kind.
"I've prosecuted at the state level," he said. "I was the United States attorney for Maine and a federal judge, and now I've been through this experience and I can tell you, there's a huge difference between conducting an investigation when you can compel testimony and documents and when you have to simply ask for them. Huge difference."
Got that, congressman? We going too fast for you? Also: The red tie on the red shirt? That's not working for you.
But don't think this is partisan bashing. The Democrats had their moments too. Rep. Peter Welch, D-Vt., was recognized and the first question he asked Mitchell, the most important thing he could think of, was: "Do you believe that a major league baseball player who did use performance enhancing drugs and is the holder of a major league baseball record -- most home runs, most batters struck out, most stolen bases -- should be stripped of that record?"
Grandstanding? Perish the thought. "I would hope no one would dispute that protecting public health, keeping young athletes safe, is a vital and appropriate function of government," Davis had said at the start of the hearing. Should the home run record belong to Barry Bonds or Henry Aaron? Evidently, the health of our nation's youth rides on the answer!
Mitchell demurred that the question was beyond his mandate, authority and expertise, and no doubt thought, "I'm missing my train for this?"
To be fair, it wasn't all boneheaded grandstanding. There was also some smart grandstanding.
Souder was much better when he questioned Selig and Fehr.
"I want to thank Mr. Selig and Mr. Fehr for having taken some steps, and I believe this report and the followup are additional steps," he said. "But I don't know and what many of us are asking is, would they have been taken if BALCO hadn't occurred? Would they have been taken if the hearings here hadn't occurred? The leadership part is missing. It tends to be waiting until potentially the law is coming, and then trying to fend the law off."
That's some solid stuff. Fehr and Selig tap-danced around, but no honest person could answer yes to that question. The answer is obviously no, because there was a time before BALCO, and those steps weren't taken or even contemplated.
Then Souder veered into the ditch again. He talked about having worked on some legislation that involved probable cause triggering drug testing among high school students, then asked Selig if he thought a player's improved play could be considered probable cause to test for steroids.
"Are you looking specifically at, when you see changes in performance in key categories, where they're tripling from one year, then you do extra testing?" he asked.
Selig said, "Well, we have the program now. We test as frequently as we can. If there are reasons to test more, we're willing and able to do that."
"Are statistical anomalies potentially a reason?" Souder said. Selig, hemming and umming in his way, and being interrupted by Souder, who wanted to make clear the whole thing would be subject to due process, said yes.
Franz Kafka just sat up in his grave and said, "Are you people on crack?"
These guys are yammering on about protecting the integrity of the game, and then agreeing with each other that if a guy's home run total spikes one year, that's probable cause to investigate him for a crime, to step up testing. They're ready to create an incentive for players having too good a year to ease up. Who needs the aggravation of extra drug testing just for hitting 40 home runs? Thirty's good enough to get a big contract.
Performance spikes predate steroids by a lot. Does the gentleman from Indiana want to dig up Wally Moses? He had 25 home runs in 1937. In the rest of his 17-year career, before and after, he never hit 25 home runs in any three seasons combined. He must have been juicing! Get a subpoena!
I don't know who let Rep. John Yarmuth, D-Ky., in. Ninety-one minutes into the hearing, he asked the first really good question. He cited a newspaper article about a study that found no improved performance by those players who had tested positive.
"I'm wondering," he asked Mitchell, "whether, in the course of your investigation, you felt that we really knew enough about what these substances really did. Because in terms of providing education for our kids, if in fact there is no performance [enhancement], maybe the kids would be less prone to use them if we really found out that there wasn't any quantitative difference in their performance."
Mitchell, to his credit, gave a nuanced answer. "I believe the subject is very complicated," he said, "and as often happens in life, a phrase has entered into the universal vocabulary of our society: Performance-enhancing substances. If you look at and talk to the players who use them, you find that the motives, while they ultimately involve performance, don't always do so in an immediate sense. A lot of it is recovery time, recovery from injury, recovery from strenuous workouts, the ability to work out more often."
Mitchell also talked about the possible placebo effect. But he didn't really answer the question. Whether the intention is to immediately improve performance or to do so indirectly by recovering from injury more quickly or being able to work out harder, if it doesn't work, it doesn't work. Getting the word out on that might be a very smart front to open in the War on Drugs.
It went on more or less like this for about four and a half hours. And what came out of this hearing?
Miguel Tejada better have a good lawyer. Chairman Henry Waxman, D-Calif., opened the hearing, and Davis backed him up, by saying the committee was very interested in having the Justice Department open a perjury investigation into Tejada's statements as the committee investigated whether Palmeiro had lied under oath when he denied steroid use.
Other than that some representatives got some face time on the TV doing the kind of thing they love to do: saying that something that no sane person would say is good is bad. The committee members stood unafraid in front of the American people and said they think kids shouldn't take steroids, and goshdarnit they don't care who knows it.
At publishing time, it was not known if Mitchell caught his train, but if he did, the exercise wasn't a total loss.
Previous column: New ice bowls cometh
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About the writer
King Kaufman is a senior writer for Salon. You can e-mail him at king at salon dot com or visit his Facebook page.
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