Student Brief: The Legal Implications of Drug Testing in Sports by Professor Schmidt

By student blogger Mark Berardi 

    The Sports and Entertainment Law
Society recruited Professor Christopher Schmidt of Chicago-Kent College of Law
to present the history and legal implications of drug testing in sports.
Professor Schmidt’s talk drew on a project he is currently working on entitled,
“Governing Baseball.” He is exploring the history of the relationship between
baseball and the government through four case studies: (1) The appointment of Judge Kenesaw Mountain Landis as the first
Commissioner of baseball in the wake of the Black Sox Scandal; (2) the
integration of baseball; (3) team relocations and the expansion of major league
baseball in the 1950s and 1960s; and (4) the introduction of drug testing in
the past decade. He argues that while organized baseball has generally prided
itself on its independence from government regulation, the game actually has a
long history of reliance on government, and, furthermore, government
involvement has generally benefited the game.

                Professor Schmidt
began the presentation by explaining how there has been a long history of use
or abuse of substances in baseball. 
Alcohol has always been a part of the game, and in the 1970s and 1980s
the game went through several cocaine scandals. 
Players regularly relied up stimulants, from caffeine to amphetamines, to
help them get through the season. With regard to performance enhancing drug
usage in baseball, he then explained that recent history can be divided into
three eras. From around 1980 through 1994, there was a period in which there
were rumors and rumblings of a steroid problem in the MLB. From after the 1994
players’ union strike through 2004, the steroid era ruled. Finally, the time
from 2004 to the present is considered the beginning of the end of the steroid
era.

                During the first
era, the use of steroids and other performance enhancing drugs was a big
problem for the NFL, the Olympics and other sports, but not so much baseball.
Until the 1980s, ballplayers generally believed that bulky muscles were not
good for hitting. In 1990, the US got involved and created the Anabolic
Steroids Act, which lists steroids as a controlled substance. Then, in 1991,
the MLB commissioner sent out a memo to all owners telling them that steroids
are prohibited substances, but did not institute any kind of testing. The
owners made half-hearted attempts to create a testing program through the
collective bargaining process, but the players’ union steadfastly opposed all
such proposals.  For years, the union
succeeded at keeping testing out of the game.

                The 1998 season
saw an offensive explosion and the home run race between Mark McGwire and Sammy
Sosa. This was great for baseball teams and, since other players wanted the
attention of the media as well, steroid use increased dramatically. Although
players such as Ken Caminiti and Jose Conseco would in the coming years
publicly claim that baseball was riddled with steroid users, there was a tacit acceptance
of steroids in major league baseball. The owners loved that players were
driving up demand for baseball tickets and the players loved to be able to
demand huge contracts and media attention. Professor Schmidt explained that,
despite baseball’s pride of its independence from government intervention,
those who controlled the game proved incapable of confronting the problem
themselves. There was a need for the government to help to stop the use of
steroids in baseball. 

                With more player
exposes and continued rumors of steroid use, and in the face of public pressure
and threats from Congress, the owners and the players in 2002 finally agreed to
a provisional “survey”  testing program,
designed to determine whether a problem really existed.  At this point, the government got involved.
In 2003 federal agents raided BALCO labs in California. President Bush, in his
2004 State of the Union address, demanded that sports leaders do something
about steroids, likening it to a public health epidemic. Congress held several
hearings on the issue.  Then, in 2004,
Congress amended the Controlled Substance Act to include various steroids and
steroid-like substances that had previously been available without a
prescription. Finally, in 2005, the players’ union agreed to a strong testing
program tied to the Controlled Substance Act list of drugs, and in 2007 MLB
hired ex-Senator George Mitchell to conduct an independent investigation of
baseball in the steroid era.  The
government intervention pushed the apathetic MLB into testing its players.

                Professor Schmidt
suggested that in order to consider an appropriate remedy for performance
enhancing drugs, we should first examine the reasons for prohibiting them.
There are three most commonly cited reasons. 
First is the argument that the use of these drugs is cheating and hurts
the integrity of the game. Second is the argument that the risk of medical harm
necessitates the banning of these drugs. 
And third is the idea that baseball players are role models, and their
use of these drugs leads to a public health concern if children begin using
them. Despite the arguments that the government should not get involved in
major league sports’ drug regulation, Professor Schmidt concluded that
government intervention was the only way that baseball would be cleaned up
since neither the owners nor the players wanted change.

Finally, Professor Schmidt described the
thorny legal issues involved in sport drug testing.  He discussed some of the constitutional
issues of privacy that arise from drug regulation, concluding that there is not
much room for argument on behalf of the players as long as there is a process
of appeals.  The sharing of information
between federal law enforcement officials and MLB might also raise some legal
concerns.  Recently NFL players have
successfully used state-level workplace laws to challenge league drug testing
policy, a development with potentially transformative implications for drug
testing in professional sports.  He concluded
by noting that the current zone of growing concern for MLB is steroid use by
players outside of the country who are recruited to play in the U.S.