jfc Final Report.pdf

REPORT TO THE COMMI

SSIONER OF BASEBALL

OF AN INDEPENDENT INVESTIGATION INTO

THE ILLEGAL USE OF STEROIDS AND OTHER

PERFORMANCE ENHANCING SUBSTANCES

BY PLAYERS IN MAJOR LEAGUE BASEBALL

GEORGE J. MITCHELL

DLA

PIPER

LLP

December 13, 2007

Commissioner of Baseball.

TABLE OF CONTENTS

Page

Summary and Recommendations ............................................................................................SR-1

I. Scope of this Investigation.................................................................................................1

II. Major League Baseball and Other S

ports Must Combat the Illegal Use of

Performance Enhancing Substances..................................................................................4

A. Health Risks from Abuse of Steroi

ds and Other Widely Used Performance

Enhancing Substances............................................................................................ 5

1. Adverse Effects of Anabolic Steroid Abuse.............................................. 5

2. Adverse Effects of Human Growth Hormone ........................................... 9

B. Threat to the Integrity of Baseball

Posed by the Illegal Use of Performance

Enhancing Substances.......................................................................................... 11

C. The Effects on Young Athletes............................................................................ 15

III. The Governing Laws and Baseball Policies Regarding Possession or Use of

Performance Enhancing Substances................................................................................18

A. Laws Regarding Performance Enhancing Substances......................................... 18

B. Baseball’s Drug Policies Before 2002................................................................. 24

1. Bowie Kuhn and Baseball’s First Drug Policies...................................... 26

2. The Ferguson Jenkins Decision............................................................... 29

3. Cocaine Suspensions of 1983-84............................................................. 31

4. The 1984 Joint Drug Program.................................................................. 34

5. Drug Policies Under Peter Ueberroth ...................................................... 36

6. 1991: Fay Vincent Adds Steroids to Baseball’s Drug Policy.................. 41

7. Baseball’s Drug Policies Under Bud Selig.............................................. 42

8. 2001 Minor League Drug Prevention and Treatment Program............... 44

C. Informal Reasonable Cause Testing .................................................................... 47

D. The Joint Drug Program Under the Basic Agreement, 2002 to Present.............. 50

IV. Early Indications of Steroid Use in Baseball (1988 to August 1998).............................. 60

V. Androstenedione and Baseball’s

Broadening Awareness of the Use of

Performance Enhancing Substances................................................................................77

VI. Incidents Providing Evidence to Baseball

Officials of Players’ Possession or Use

of Performance Enhancing Substances............................................................................86

A. Operation Equine................................................................................................. 89

B. Steroids Found in Boston Red Sox Player’s Car, June 2000............................... 91

C. Discovery of Steroids in Florida Marlins Player’s Locker, June 2000................ 92

TABLE OF CONTENTS

(continued)

Page

D. Shipment of Steroids to Arizona Clubhouse, September 2000............................ 94

E. Canadian Border Service Seizure of

Steroids in Tor

onto, October 2001............ 95

F. Bullpen Catcher Admits to Supplyi

ng Steroids to Ei

ght Major League

Players, September 2002...................................................................................... 99

G. Infielder Disciplined For Steroids Shipment, July 2004.................................... 101

H. Cooperation in Law Enforcement Investigation, Late 2004.............................. 103

I. Investigation Following Rafael Palmeiro’s Positive Drug Test, May 2005...... 103

J. 50-Game Suspension of Jason Grimsley for Reported Admissions of

Human Growth Hormone Use, Summer 2006................................................... 106

K. Procedures Followed for Players Implicated in Recent Government

Investigations..................................................................................................... 108

L. Unreported Incidents.......................................................................................... 109

VII. Major League Baseball and the BALCO Investigation................................................. 112

A. The BALCO Raid and Grand Jury Investigation............................................... 112

B. Information Learned During this

Investigation Concerning BALCO and

Major League Baseball...................................................................................... 121

1. Information About Possible Ster

oid Sales By Greg Anderson

Before the Raid on BALCO................................................................... 121

2. Players’ Links to Performance Enhancing Substances.......................... 127

VIII. Information Obtained Regarding Other Players’ Possession or Use

of Steroids and Human Growth Hormone..................................................................... 138

A. Background........................................................................................................ 138

1. Kirk Radomski’s Cooperation ............................................................... 138

2. Radomski’s Employment with the New York Mets.............................. 141

3. Radomski’s Distribution of Perf

ormance Enhancing Substances to

Major League Baseball Players ............................................................. 142

B. Information Regarding Purchases

or Use of Performance Enhancing

Substances by Players in Major League Baseball.............................................. 145

C. Additional Information Concerni

ng Players’ Use of Performance

Enhancing Substances........................................................................................ 230

TABLE OF CONTENTS

(continued)

Page

iii

IX. The Threat Posed By Internet Sales of Steroids and Human Growth Hormone ...........234

A. Two Methods for Illegal Internet

Distribution of Perf

ormance Enhancing

Substances.......................................................................................................... 234

1. Drug Dealers’ Use of the Internet to Sell Illegal Performance

Enhancing Substances............................................................................ 234

2. Internet Trafficking in Perf

ormance Enhancing Substances by

Rejuvenation Centers and

Compounding Pharmacies........................... 238

B. Alleged Internet Purchases of Pe

rformance Enhancing Substances By

Players in Major League Baseball ..................................................................... 242

X. Review of the Major League

Baseball Joint Drug Prevention

and Treatment Program.................................................................................................. 258

A. Development of the Essential Elements of an

Effective Drug Testing Program........................................................................ 259

B. Review of the Administration

of the Major League Baseball

Joint Drug Prevention and Treatment Program................................................. 263

C. Allegations of Advance Notice of Tests............................................................ 278

1. Alleged Advance Notice of 2003 Survey Testing ................................. 278

2. Alleged Advance Notice During 2004 Season ...................................... 281

XI. Recommendations.......................................................................................................... 285

A. Recommendations for Investigation

of Non-Testing Based Allegations of

Performance Enhancing Subs

tance Possession or Use...................................... 286

1. The Commissioner Should Establish a Department of

Investigations......................................................................................... 287

2. The Commissioner’s Office Shoul

d More Effectively Cooperate

with Law Enforcement Agencies........................................................... 290

3. The Commissioner’s Office S

hould Actively Use The Clubs’

Powers, as Employer, to Invest

igate Violations of the Joint

Program.................................................................................................. 291

4. All Clubs Should Have Clear, Written, and Well-Publicized

Policies for Reporting Inform

ation Relating to Possible

Performance Enhancing Substance Violations...................................... 292

5. Logging Packages Sent to Players at Major League Ballparks ............. 294

B. Additional Actions to Address

Performance Enhancing Substance

Violations........................................................................................................... 295

C. Educational and Related Reco

mmendations to Decrease Use of

Performance Enhancing Substances.................................................................. 296

TABLE OF CONTENTS

(continued)

Page

1. The Design and Implementation of the Educational Program

Should Be Centralized with

the Independent Program

Administrator......................................................................................... 298

2. Spring Training Programs Should

Include Testimonials and Other

Speakers and Presentations.................................................................... 298

3. Explain the Health Risks in C

ontext and Provide Education on

Alternative Methods to Achieve the Same Results................................ 300

4. Players Need to Understand the Non-Health Effects of Buying

Performance Enhancing Substan

ces from Street Dealers and

“Internet Pharmacies”............................................................................ 301

5. Prominently Display Posters About Performance Enhancing

Substance Use Prevention...................................................................... 302

D. Recommendations for Further Impr

ovement of the Joint Drug Prevention

and Treatment Program...................................................................................... 302

1. The Program Should Be Independent.................................................... 303

2. The Program Should Be Transparent..................................................... 304

3. There Should Be Adequate Year-Round, Unannounced Drug

Testing.................................................................................................... 305

4. The Program Should Be Flexible Enough to Employ Best Practices

as They Develop .................................................................................... 305

5. The Program Should Continue to

Respect the Legitimate Rights of

Players.................................................................................................... 306

6. The Program Should Have Adequate Funding...................................... 306

E. We Need to Look to the Future.......................................................................... 307

XII. Conclusions.................................................................................................................... 310

Appendices

A. Independence of the Investigation.....................................................................A-1

B. Process of the Investigation............................................................................... B-1

C. Media Articles Before August 1998.................................................................. C-1

D. Documents Relating to Transactions Described in Chapter VIII ......................D-1

REPORT TO THE COMMI

SSIONER OF BASEBALL

OF AN INDEPENDENT INVESTIGATION INTO

THE ILLEGAL USE OF STEROIDS AND OTHER

PERFORMANCE ENHANCING SUBSTANCES

BY PLAYERS IN MAJOR LEAGUE BASEBALL

SUMMARY AND RECOMMENDATIONS

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Summary and Recommendations

For more than a decade there has been wide

spread illegal use of anabolic steroids

and other performance enhancing substances by players in Major League Baseball, in violation

of federal law and baseball policy. Club officials routinely have discussed the possibility of such

substance use when evaluating players. Those w

ho have illegally used

these substances range

from players whose major league careers were br

ief to potential members of the Baseball Hall of

Fame. They include both pitchers and position players, and their backgrounds are as diverse as

those of all major league players.

The response by baseball was slow to develop and was initially ineffective, but it

gained momentum after the adoption of a manda

tory random drug testing program in 2002. That

program has been effective in that detectable ster

oid use appears to have declined. But the use of

human growth hormone has risen because, unlike

steroids, it is not dete

ctable through urine

testing.

This report, the product of an intensive

investigation, describes how and why this

problem emerged. We identify some of the play

ers who were caught up in the drive to gain a

competitive advantage through the illegal use of th

ese 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.

From hundreds of interviews and thousands of documents we learned enough to

accurately describe that era. While this investigation was prompted by revelations about the

involvement of players with the Bay Area Labor

atory Co-Operative, the evidence we uncovered

indicates that this has not been an isolated prob

lem involving just a few play

ers or a few clubs. It

has involved many players on many cl

ubs. In fact, each of the thirty clubs has had players who

have been involved with performance enhancing

substances at some ti

me in their careers.

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The illegal use of these substances was not limited to the players who are

identified in this report. There have been

many estimates of use. In 2002, former National

League Most Valuable Player Ken Caminiti estimated that “at least half” of major league players

were using anabolic steroids.

Dave McKay, a longtime coach for

the St. Louis Cardinals and the

Oakland Athletics, estimated that at one time 30

% of players were using

them. Within the past

week, the former Cincinnati Reds pitcher Jack

Armstrong estimated that between 20% and 30%

of players in his era, 1988 to 1994, were using

large doses of steroids while an even higher

percentage of players were using lower, maintena

nce doses of steroids. There have been other

estimates, a few higher, many lowe

r, all impossible to verify.

However, it is a fact that between 5 and

7 percent of the major league players who

participated in anonymous survey testing in 20

03 tested positive for performance enhancing

substances. Those figures almost certainly unders

tated the actual level of use since players knew

they would be tested at some time during the

year, the use of human growth hormone was not

detectable in the tests that we

re conducted, and, as many have observed, a negative test does not

necessarily mean that a player has not b

een using performance

enhancing substances.

Mandatory random testing, formally star

ted in 2004 after the survey testing

results, appears to have reduced the use of de

tectable steroids, but pl

ayers switched to human

growth hormone precisely because

it is not detectable. Player

s who use human growth hormone

apparently believe that it assists their ability to

recover from injuries and fatigue during the long

baseball season; this also is a major reason w

hy players used steroids.

Human growth hormone

was the substance most frequently sold to play

ers by Kirk Radomski, a former New York Mets

clubhouse employee who was a significant source of illegal performance enhancing substances

until late 2005. Separately, a number of player

s reportedly purchased human growth hormone

SR-3

through “anti-aging” centers using dubious pr

escriptions written by physicians who never

examined, or even met, the customers for whom they were writing prescriptions.

At the beginning of this investigation,

I said that I would conduct a “deliberate

and unbiased examination of the facts that will co

mport with basic American values of fairness.”

To honor that commitment, I invited each current or

former player about whom allegations were

received of the illegal possession or use of perf

ormance enhancing substances to meet with me

so that I could inform him of the evidence suppo

rting the allegations a

nd give him a chance to

respond. The explanations provi

ded by those players who we did interview were taken into

account and are reflected in this report.

Among current players I asked to intervie

w 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 st

atement. Four of the

five declined. One of them, Frank Thomas of

the Toronto Blue Jays, agreed. His comments

were informative and helpful.

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 test

ing of its members for steroids or other

substances. On the other side

of the bargaining table, the ow

ners and several Commissioners

proposed drug testing programs but gave the issu

e a much lower priority in bargaining than

economic issues. But when the opportunity wa

s presented in 2002 to achieve agreement on a

system of mandatory random

drug testing, the Commissioner pre

ssed hard on the issue and the

Players Association agreed to the basic elemen

ts of the program that is in place today.

SR-4

No drug testing program is perfect. Th

e current drug testing program in Major

League Baseball is the product of the give and take

inherent in collective

bargaining. It appears

to have reduced the use of de

tectable steroids but by itself

has not removed the cloud of

suspicion over the game. Even as this inve

stigation was underway, developments in several

government investigations exposed the depth and br

eadth of the continuing illegal use of these

substances in baseball (and in other sports) and

made clear that this problem continues, years

after mandatory random testing began and stringent pe

nalties for failing those tests were adopted.

Plainly, baseball needs to do more to eff

ectively 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 re

ported in several newspa

pers: “Major League

Baseball is trying to investigate the pa

st so they can fix the future.”

That is the purpose of the recommendations

that are set forth in detail in this

report. In summary, they fall into three cat

egories: (1) Major League Baseball must

significantly increase its ability to investigate al

legations of use outside of the testing program

and improve its procedures for keeping performa

nce 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.

Although I sought and received a wide range

of views, including the opinions of

many experts in the field, the conclusions and

recommendations in this report are mine alone,

SR-5

following close consultation and ex

tensive discussions with the very talented members of the

staff I assembled to assist me in this effort.

A. The Investigation and this Report

On March 30, 2006, the Commissioner of Ba

seball, Allan H. (“Bud”) Selig, asked

me to investigate allegations th

at a number of players in Majo

r League Baseball had illegally

used steroids and other performance enhancing

substances. I accepted on the conditions that

(1) I have total independence in

conducting the inves

tigation and in prepar

ing this report; and

(2) I have full freedom and authority to follow th

e evidence wherever it might lead, so that the

investigation would not be limited to any one play

er or team. The Commi

ssioner readily agreed.

He pledged that this report, when completed, w

ould be made public, a decision I agreed with.

He promised his full support and he kept his promise.

The Commissioner retained the authority

to determine whether any activities in

the conduct of this investiga

tion might violate his obligati

ons under the Basic Agreement,

including the joint dr

ug program. I agreed to be bound by

his decisions in that regard.

The Commissioner also retained the right

to prohibit publication in this report of

any information that he is under a legal duty to ke

ep confidential. To enable him to make that

determination, I agreed to provide his office the

opportunity to review this report three business

days before it was released publicl

y. No material changes were made as a result of that review.

I was assisted in this investigation by lawyers from the firm of DLA Piper US

LLP and by several experts. They

include Richard V. Clark, M.D.,

Ph.D., a leader in the fields

I personally conducted many of

the interviews that form the basis for this report, but

because more than 700 interviews were taken during this investigation it was not possible for me

to conduct all of them. Lawyers on my staff fr

om the law firm of DL

A Piper conducted the

interviews that I did not attend. In this repo

rt, I use the pronouns “I” and “we” interchangeably

because its findings are based on our work collectively, under my direction.

SR-6

of andrology and endocrinology and Richard

H. McLaren, HBA, LL.B., LL.M., C. Arb.,

a professor of law at the Univer

sity of Western Ontario and a di

stinguished arbitrator for the

Court of Arbitration for Sport.

I requested the production of releva

nt documents from the Commissioner’s

Office, each of the thirty major league clubs,

and the Players Associat

ion. We received and

reviewed more than 115,000 pages of documents

from the Commissioner’s Office and the thirty

clubs and over 20,000 electronic documents that we

re retrieved from the computer systems of

the Commissioner’s Office and some of the cl

ubs. We also gathered and reviewed many

documents from other sources, some of them public.

In the course of the investigation, we in

terviewed more than 700 witnesses in the

United States, Canada, and the Dominican Republic. Over 550 of these witnesses were current

or former club officials, managers, coaches, te

am physicians, athletic trainers, or resident

security agents. We also interviewed 16 pe

rsons from the Commissioner’s Office, including

Commissioner Selig, president

and chief operating officer Robert DuPuy, executive vice

president for labor relations Robert D. Manfred, Jr

., and former senior vice president for security

and facility management Kevin Hallinan.

We sought to interview as many current

and former players

as possible. We

attempted to reach almost 500 former players.

Many of them declined to be interviewed, but

68 did agree to interviews. In addition, intervie

ws of 3 former players were arranged through the

assistance of federal prosecutors and law enforcement agents.

Lawyers from Foley & Lardner LLP played a

separate but important

role as counsel for

the Commissioner and Major League Baseball

. Lawyers from Foley & Lardner did not

participate in many of the interviews that we c

onducted and had no role in

preparing this report

other than reviewing it, as representatives of th

e Commissioner, three days before its release.

SR-7

The Players Association was largely uncoope

rative. (1) It re

jected totally my

requests for relevant documents. (2) It perm

itted one interview with its executive director,

Donald Fehr; my request for an interview w

ith its chief operating officer, Gene Orza, was

refused. (3) It refused my request to interview

the director of the Mont

real 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 cont

act 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 th

e illegal possession or use of performance

enhancing substances by a number of current play

ers. Through their representative, the Players

Association, I asked each of them

to meet with me so that I co

uld provide them with information

about the allegations and give them a chan

ce to respond. Almost

without exception they

declined to meet or talk with me.

My goal in preparing this report was

to provide a thorough, accurate, and fair

accounting of what I learned in th

is investigation about the illega

l use of performance enhancing

substances by players in Major

League Baseball. To provide

context for my conclusions and

recommendations, I also include in the report the

medical, legal, and historical issues that are

part of this complex problem.

I have not included every allegation that

we received or th

e results of every

interview we conducted or every document we re

viewed. Inevitably, much of that information

was cumulative, not relevant, or of only marginal

relevance. None of it would have materially

altered the account that is provided.

SR-8

B. The Problem Is Serious

The illegal use of performance enhancing s

ubstances poses a serious threat to the

integrity of the game. Widespread use by player

s of such substances unfairly disadvantages the

honest athletes who refuse to use them and raises

questions about the validity

of baseball

records.

In addition, because they are break

ing the law, users of these s

ubstances are vulnerable to drug

dealers who might seek to exploit their knowledg

e through threats intended

to affect the outcome

of baseball games or otherwise.

The illegal use of these substances to im

prove athletic performance also carries

with it potentially se

rious negative side effects on th

e human body. Steroid users place

themselves at risk for psychiatric problems, car

diovascular and liver damage, drastic changes to

their reproductive systems, musculoskeletal injur

y, and other problems. Users of human growth

hormone risk cancer, harm to their reproducti

ve health, cardiac and

thyroid problems, and

overgrowth of bone and connective tissue.

Apart from the dangers posed to the majo

r league player himself, however, his

use of performance enhancing substances encour

ages young athletes to use those substances.

Young Americans are placing themselves at risk

of serious harm. Because adolescents are

already subject to significant hormonal changes,

the abuse of steroids and other performance

enhancing substances can have more serious

effects on them than they have on adults.

Some estimates appear to show a recent

decline in steroid use by high school

students; they range from 3 to 6 percent.

But even the lower figure means that hundreds of

See

Restoring Faith in America’s Pastime:

Evaluating Major League

Baseball’s Efforts

to Eradicate Steroid Use: Hearing

Before the H. Comm. on Gov’t Reform, 109

Cong. 307

(2005) (statement of

Dr. Kirk Brower).

National Institute on Drug Abuse, Monitoring the Future: Nat’l Survey Results on Drug

Use, 1975-2006, Vol. 1, at 44 (2006); Center

s for Disease Control and Prevention,

National

SR-9

thousands of high school-aged young people are still

illegally using steroids. It’s important to

devote attention to the Major Leag

ue Baseball players who illegally used performance enhancing

substances. It’s at least as im

portant, perhaps even more so, to

be concerned about the reality

that hundreds of thousands of our children are

using them. Every American, not just baseball

fans, ought to be shocked into action by that distur

bing truth. The recent decline is welcome, but

we cannot be complacent.

Don Hooton, whose son committed suicide

after abusing anabolic steroids,

created the Taylor Hooton Foundation for Fight

ing Steroid Abuse. In 2005 congressional

testimony, Mr. Hooton said:

I believe the poor example being set by professional athletes is a major

catalyst fueling the high usage of steroi

ds amongst our kids. Our kids look

up to these guys. They want to do the things the pros do to be successful.

* * *

Our youngsters hear the message loud a

nd clear, and it’s wrong. “If you

would want to achieve your goal, it’s

OK to use steroids to get you there,

because the pros are doing it.” It’s

a real challenge for parents to

overpower the strong message that’s

being sent to our children by your

behavior.

Finally, the illegal use in baseball of

steroids and other performance enhancing

substances victimizes the majority of player

s who do not use those substances. A September

2000 study by the National Center on Addic

tion and Substance A

buse observed that:

‘Clean’ athletes face three choices:

(1) compete without performance-

enhancing substances, knowing that they may lose to competitors with

fewer scruples; (2) aban

don their quest because they are unwilling to use

performance-enhancing substances to

achieve a decisive competitive

Youth Risk Behavior Survey: 1991-2003: Trends in the Prevalence of Marijuana, Cocaine and

Other Illegal Drug Use

(2004).

Restoring Faith in America’s Pastime: Eval

uating Major League Ba

seball’s Efforts to

Eradicate Steroid Use: Hearing Be

fore the H. Comm. on Gov’t Reform, 109

Cong. 307 (2005)

(statement of Donald M. Hooton, presid

ent & director, Taylor Hooton Foundation).

SR-10

advantage; or (3) use performance-e

nhancing substances to level the

playing field.

We heard from many former players who believed

it was grossly unfair that some players were

using performance enhancing substances to gain an

advantage. One former player told us that

one of the “biggest complaints” among players was th

at a “guy is using steroids and he is taking

my spot.”

C. Governing Laws and Majo

r League Baseball Policies

Anabolic steroids are listed as controll

ed substances under th

e federal Controlled

Substances Act. Since 2004, the dietary supp

lement androstenedione and other steroid

precursors have been as well. That means that it is illegal to use or po

ssess steroids or steroid

precursors without a valid physician’

s prescription. Violations of this law carry penalties similar

to those applicable to the illeg

al use or possession of narcotic

s. Human growth hormone is a

prescription medication. It is illegal to issu

e a prescription for human growth hormone except

for very limited purposes. Human growth hormone never has been approved for cosmetic or

anti-aging uses, or to improve at

hletic performance. Issuing

a prescription for human growth

hormone for any of these unauthorized purposes is a violation of federal law.

Many have asserted that st

eroids and other performance enhancing substances

were not banned in Major League Baseball be

fore the 2002 Basic Agreement. This is not

accurate. Beginning in 1971 and continuing toda

y, Major League Baseball’s drug policy has

prohibited the use of any prescription

medication without a valid prescription.

By implication,

National Center on Addiction and Subs

tance Abuse at Columbia University,

Winning at

Any Cost

, at 3 (Sept. 2000).

See

Notice No. 12, Memorandum from Major

League Baseball Office of the

Commissioner to Administrative Officials of

Major and Minor League Ball Clubs Re: Drug

Education and Prevention Program, dated Apr. 5,

1971, ¶ 9 (“Baseball must

insist its personnel

SR-11

this prohibition applied to steroids even be

fore 1991, when Commissi

oner Fay Vincent first

expressly included steroids in ba

seball’s drug policy. Steroids ha

ve been listed as a prohibited

substance under the Major League Baseball

drug policy since then, although no player was

disciplined for steroid use before the prohibi

tion was added to the collective bargaining

agreement in 2002.

It is also inaccurate to assert, as some

have, that baseball’s drug policy was not

binding on players before it was added to the co

llective bargaining agreement. Many players

were suspended for drug offenses before 2002, even

though none of those suspensions related to

the use of steroids or other performance enhanc

ing substances. Some suspensions were reduced

in grievance arbitrations br

ought by the Players Association, but no arbitrator ever has

questioned the authority of the Commissioner to

discipline players for “just cause” based on their

possession, use, or distribu

tion of prohibited drugs.

For many years before 2002, the Players Association opposed any drug program

that included mandatory random testing, despite

several proposals for such a program from

different Commissioners. The ear

ly disagreements on this issue centered around testing for

cocaine and other “recreational”

drugs, not steroids, but the eff

ect of the Players Association’s

opposition was to delay the adoption of mandato

ry random drug testing in Major League

Baseball for nearly 20 years.

However, opposition by the Players Asso

ciation was not the only reason that

mandatory random drug testing was not adopted

. In 1994, Commissioner Selig and the club

owners proposed a drug program that would have included some forms of testing and would

have listed steroids among base

ball’s prohibited substances. R

obert D. Manfred, Jr., who is now

comply with the federal and state drug laws. It

is your obligation to be

familiar with these drug

laws.”).

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executive vice president for labor relations in th

e Commissioner’s Office,

recalled that anabolic

steroids were included in the

1994 proposal to be proactive, and

the decision to include steroids

in the proposal was not based on any particular

concern about the use of those substances in

baseball at that time. He acknowledged that

at the time the drug program was not as high a

priority as economic issues.

The Players Association did not agree to

the proposal. Officials of the Players

Association said that th

e clubs did not appear to regard th

e 1994 proposal as a high priority and

did not pursue its adoption vigorous

ly. Indeed, Players Associat

ion executive director Donald

M. Fehr recalled that the proposal never ev

en reached the main

bargaining table during

negotiations.

Later that year, a work stoppage ended the season and resulted in the cancellation

of the World Series. Play resumed in 1995 wit

hout a collective bargaining agreement, and the

owners made no attempt to renew the drug

program proposal when collective bargaining

resumed. That bargaining resulted in an agreemen

t that remained in effect until 2002, so the next

proposal for a mandatory random drug testing prog

ram was made in those negotiations with the

Players Association in early 2002.

In 2001, the Commissioner had unilaterall

y implemented drug testing throughout

baseball’s affiliated minor leagues. He used

that program as the basis for his 2002 proposal to

the Players Association for a ma

jor league program. The pr

oposal included many of the

elements of the current Major League Baseball

joint program. Building from that proposal, the

Players Association and the clubs negotiated the

terms of a joint drug program as part of the

2002 Basic Agreement. For the first time, there

was a program; it provided for the possibility of

mandatory random drug testing of all major league

players if more than 5% of players tested

SR-13

positive for steroids during anonymous survey testi

ng in 2003. After that did in fact occur,

mandatory random drug testing began in Major L

eague Baseball in 2004. That year, there were

12 undisputed positive tests for steroids. No pl

ayer was suspended because the program did not

provide for suspensions of first-

time offenders at that time.

The Major League Baseball Joint Drug Prevention and Treatment Program has

been modified twice since it originally was ag

reed to in 2002. In January 2005, human growth

hormone (along with seventeen other compounds) was

added to the list of pr

ohibited substances.

In addition, the Players Associati

on agreed to more stringent pe

nalties for a positive test for

steroids (or similar substances) including, for

the first time, a suspension of ten days for a

player’s first positive test. In 2005, 12 players te

sted positive for steroids and were suspended

for ten days.

Later that year, further revi

sions were agreed to, includi

ng significant increases in

penalties: a 50-game suspension for a first pos

itive test; a 100-game suspension for a second

positive test; and a permanent suspension for a third positive test. The penalties are unchanged

since those revisions. The penalties for positive

drug tests under the major league program are

the strongest in major U.S. professional sports leagues.

In 2006, two players tested positive for

steroids and were suspended for 50 games. In

2007, three players were suspended for 50 games

each for positive steroids tests.

In addition, in June 2006 Arizona Di

amondbacks pitcher Jason Grimsley was

suspended for 50 games based on “non-analytic” evidence that he had violated the policy,

In major professional sports leagues in th

e United States, athletes are represented in

collective bargaining by players a

ssociations. Under federal law,

drug testing is a subject of

collective bargaining and, in this context, requir

es the agreement of the players associations.

That is not the case with the Olympics or othe

r traditionally amateur sports; there the governing

bodies may unilaterally impose a

ny program of their choice.

SR-14

specifically, his reported admissi

ons to federal agents that he

had used steroids and human

growth hormone. In September 2007, Cincinna

ti Reds catcher Ryan Jorgenson also was

suspended for 50 games based on non-analytic evid

ence that he had violat

ed the joint program.

In December 2007, two players, Jay Gibbons and Jo

se Guillen, were each suspended for 15 days

based on non-analytic evidence of past

violations of the joint program.

D. The Rise of the “Steroids Era”

Reports of steroid use in

Major League Baseball be

gan soon after the widely

publicized discipline of Canadi

an sprinter Ben Johnson at the Summer Olympic Games in

September 1988. Jose Canseco of the Oakland At

hletics 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.

News reports about alleged steroid use in baseball grew more frequent throughout

the 1990s. In 1996, after a dramatic increase in

offense throughout Major League Baseball, Ken

Caminiti of the San Diego Padres was voted the Na

tional League’s Most Valuable Player. In a

2002 Sports Illustrated article, he admitted that

he had been using steroids that season and

credited them for his increased power. In

August 1998, coverage of the issue reached what

seemed at the time to be a peak, when an articl

e reported that Mark McGwire was using the then-

legal steroid precursor andros

tenedione while chasing the si

ngle-season home run record.

With the benefit of hindsight, it is cl

ear that baseball missed the early warning

signs of a growing crisis. Then, beginning

in the summer of 2000, a number of incidents

involving steroids or drug pa

raphernalia came to the attent

ion of club and Commissioner’s

Office officials, and the Player

s Association. They included:

In June 2000, state police in Boston discovered steroids and hypodermic needles

in the glove compartment of a vehicle

belonging to a Boston Red Sox infielder;

SR-15

Also in June 2000, a clubhouse attendant f

ound a paper bag containing six vials of

steroids and over two dozen syringes in the locker of a pitcher with the Florida

Marlins;

In mid-September 2000, a clubhouse employee

discovered a bottle of steroids and

several hundred diet pills in

a package that had been mailed to the ballpark for an

Arizona Diamondbacks infielder;

In October 2001, officers with the Canadi

an Border Service discovered steroids,

syringes, and other drugs in an unmarked

bag that came from the entourage of a

Cleveland Indians outfielder;

In September 2002, a bullpen catcher with

the Montreal Expos was arrested for

trying to send marijuana back to Florida

with the Florida Marlins’ luggage. He

later told Major League Baseball security officials that he had supplied drugs to

nearly two dozen major league players, in

cluding eight players for whom he said

he had procured steroids.

Further inquiries were made in the Arizona

and Montreal incidents, but in some of

these cases, little investigation was conducte

d. Almost without ex

ception, before this

investigation began active major le

ague players were not interviewe

d in investigations into their

alleged use of performance

enhancing substances.

Instead, players under suspici

on frequently were subjec

ted to “reasonable cause”

testing for steroid use. Prior to the 2002 Basi

c Agreement those tests were the subject of an

informal arrangement between the Commissioner’s Office and the Players Association that

involved negotiations in each case as to whether

testing of a player would be conducted and, if

SR-16

so, when. As a result, when they did occur, the

tests were administered

long after the allegations

were received, and no suspected player ever te

sted positive for steroids in these tests.

Commissioner Selig and Rob

Manfred both recognized the flaws in “reasonable

cause” testing as it was conducte

d during those years. In

2002, Manfred told a Senate

subcommittee that the process was “ad hoc at best, and dysfunctional at worst.”

To remedy the

problems, they focused their efforts on negotia

ting a comprehensive drug program with the

Players Association which, when it was agreed

to, included both mandatory random drug testing

and its own formal procedure

for reasonable cause testing.

More recently, the Commissioner’s Offi

ce has been more aggressive in

responding to allegations of the use of steroids

or other performance enhancing substances.

Examples include:

In June 2004, a minor league athletic trainer discovered a vial

of steroids in a

package that had been mailed by a play

er on a major league 40-man roster.

Manfred and his deputy investigated the in

cident and negotiated a resolution with

the Players Association under which the pl

ayer was immediately separated from

his team and was required to submit to a drug

test if he ever attempted to return to

Major League Baseball;

In June 2006, the Commissioner suspende

d Arizona Diamondbacks pitcher Jason

Grimsley for 50 games based on admissions

he reportedly made to federal law

enforcement officers about his illegal use of performance enhancing substances.

The joint drug program did not expressl

y provide for a suspension under those

Steroid Use in Professional Baseball

and Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

Comm. on Commerce, Science and Transp., 107

Cong. 7 (2002).

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circumstances, but as part of a later sett

lement the Players Association agreed that

the suspension was appropriate and c

ould be a precedent in the future;

During 2007, the Commissioner’s Office interv

iewed several players, and to date

has suspended two of them, after news artic

les appeared alleging their past illegal

use of performance enhancing substances.

E. The BALCO Investigation

Commissioner Selig asked me to conduct th

is investigation after the publication

Game of Shadows

, a book that contained allegations a

bout the illegal us

e of performance

enhancing substances by major league player

s that were supplied by BALCO and the personal

trainer Greg Anderson.

Throughout this investigation, a federal cr

iminal investigatio

n related to BALCO

was ongoing. On November 15, 2007, former San Fr

ancisco Giants outfiel

der Barry Bonds was

indicted for perjury and obstr

uction of justice based on his

grand jury testimony in that

investigation. The ongoing criminal investig

ation, and the resulting unwillingness of many

participants to cooperate with

me, limited my ability to gather information that was not already

in the public record about th

e involvement of major league

players with BALCO. The

information that we did obtain

is set forth in Chapter VII.

F. Evidence Obtained of Other Players’ Possession or Use

Through the efforts of the United States

Attorney’s Office for the Northern

District of California and federal law enfor

cement agencies, we obtained the cooperation of

former New York Mets clubhouse employee Kirk

Radomski. Radomski was interviewed by me

and members of my investigative staff on f

our occasions, with federal law enforcement

representatives participating in all interviews an

d his lawyer participating in three of them.

SR-18

Radomski identified a large number of current or

former major league players to whom he said

he illegally sold steroids, human grow

th hormone, or other substances.

Radomski also provided me with a nu

mber of documents relating to his

transactions with players in Ma

jor League Baseball, in

cluding copies of deposited checks that he

retrieved from his banks, copies of some shipping labels or receipts, his telephone records for

two years, and a copy of his address book in the

form in which it was seized by federal agents

when they executed a search warrant at his home.

We also obtained information from sources

other than Radomski about players’

possession or use of performance enhancing subs

tances. These included several former major

league players and two former strength and c

onditioning coaches, some

of whom met with us

voluntarily; others did so at

the request of federal la

w enforcement officials.

As a result, we gathered sufficient evid

ence about their alleged illegal possession

or use of performance enhancing substances to iden

tify in this report dozens

of current or former

players in Major League Baseball. Each of the

players was invited to meet with me to provide

him with information about the allegations agai

nst him and give him an opportunity to respond.

Both pitchers and position players are name

d in this report. Some of those named

are prominent, including winners of significant po

st-season awards. Many played in the World

Series or in All-Star games.

Others are less well known, and so

me had only brief careers at the

major league level. The players were with cl

ubs spread throughout Majo

r League Baseball, as

Radomski’s customers referred their friends and

teammates to him as they moved from club to

club.

SR-19

I carefully reviewed and cons

idered all of the informa

tion we received about the

purchase, possession, or use of performance enha

ncing substances by Major League Baseball

players.

1. Kirk Radomski provided substantial in

formation about the distribution of

performance enhancing substances, and in many cas

es his statements were corroborated by other

evidence. He did not, however, observe or pa

rticipate in the use of performance enhancing

substances by any player named in this report,

with one exception that is described below.

The corroboration took many forms, incl

uding: (a) the admission by eleven

players that Radomski ha

d supplied them with performance enha

ncing substances, as he had said

in our interviews of him;

(b) checks or money orders written to Radomski by some players in

appropriate amounts; (c) mailing receipts for ship

ments of performance enhancing substances by

Radomski to some players; (d) statements by ot

her witnesses supporting the allegations of use by

some players; (e) the names, addresses, and/or

telephone numbers of ma

ny players were found in

Radomski’s seized address book; (f) telephone records showing calls between Radomski and

some players; and (g) a positive drug test.

I did not include in this re

port the names of three player

s to whom Radomski said

he sold performance enhancing substances: two

of them because the players had retired from

Major League Baseball by the time of the allege

d sales; and one of them because the player

admitted that he had purchased and possessed the s

ubstances but denied that he had used them

and his version of events was corroborated by other credible evidence.

I interviewed Radomski four times (in

June, July, October, and November 2007),

three times in person, once by tele

phone. His personal lawyer pa

rticipated in three of the

Two players admitted receipt and possession of illegal performance enhancing

substances sold by Radomski but denied they ever used them.

SR-20

interviews. Federal law enforcement officials and members of my staff participated with me in

all of the interviews. No one from the Co

mmissioner’s Office, any club, or the Players

Association participated in these interviews.

During each of the interviews, the law en

forcement officials warned Radomski

that if he made any false statements he woul

d forfeit their commitment to recommend a more

lenient sentence and he would face further criminal

jeopardy. Before the interviews, Radomski

had been debriefed extensively by federal prosecut

ors and agents. They subsequently confirmed

that the information he provided to

us in his interviews was consistent with the information he

had previously provided to them.

2. Six players are named based on info

rmation obtained from persons other

than Radomski or former major league strength

and conditioning coach Brian McNamee. In

each case, these allegations are supported by one or

more of the following: (a) checks; (b) prior

consistent statements; (c) a statement made about

a player’s use where the witness was a friend

of the player identified and under circumstances

in which the witness faced criminal exposure for

making a false statement; (d) statements reportin

g a witness’s direct observation of the player

using a performance enhancing substance; (e)

the player’s own admission of his use.

3. Brian McNamee said that he was a

direct eyewitness and participant in

alleged illegal use by three players who he served

as a personal trainer.

I interviewed him three

times (in July, October, and December 2007)

, once in person and twice by telephone.

His

personal lawyer participated in each interview. Federal law enforcement officials and members

of my staff participated with me in all of

the interviews. No one from the Commissioner’s

Office, any club, or the Play

ers Association participat

ed in these interviews.

In addition, a member of my investiga

tive staff interviewed him by telephone on a

fourth occasion in December 2007; his

personal lawyer also participated.

SR-21

During each of the interviews, the law enfo

rcement officials warned him that he

faced criminal jeopardy if he made any false stat

ements. With respect to

two of the players,

McNamee was acting against his financial interest

in disclosing this information. Before the

interviews, McNamee had been debriefed extensively by federal prosecutors and agents. They

subsequently confirmed that the information he pr

ovided to us in his interviews was consistent

with the information he had previously provided to them.

In some cases, I include statements by club personnel in emails or other

documents commenting on a player’s alleged dr

ug use. Those statements are cited as

corroboration of other

evidence that a player possessed

or used performance enhancing

substances; they did not serve as

the primary basis for any of the d

ecisions I made. No player is

identified in this report on the ba

sis of mere suspicion or speculation.

Radomski met with many players while they

were in New York, where he lives.

Most of his business, however, was conducted by

telephone and mail or overnight delivery. He

sent drugs to their homes, to hotels, and in some

cases to major league clubhouses. He was paid

by check, by money order, or in cash.

Even before mandatory random drug testing began in Major League Baseball,

Radomski observed players moving aw

ay from oil-based steroids that stay in the body for a long

time, to water-based steroids that clear the

body faster. Because human growth hormone cannot

be detected in a urine test, as mandatory

random drug testing was implemented many players

switched to it even when th

ey concluded that it was less effective than steroids.

A detailed discussion of Radomski’s netw

ork of customers, and other players for

whom evidence has been obtained

of their alleged possession or

use of performance enhancing

substances, is provided in Chapter VIII of the report.

SR-22

G. Players’ Use of Substances

Purchased from Anti-Aging Centers

In February 2007, a government task force

executed search warrants on Signature

Compounding Pharmacy in Orlando, Florida and ot

her businesses, includ

ing several so-called

“rejuvenation centers,” exposing another source

of illegal performance enhancing substances.

Some businesses that describe themselves as anti-

aging or rejuvenation cent

ers sell steroids or

human growth hormone and arrange for buyers to

obtain prescriptions for those substances from

corrupt or suspended physicians or even, in some

cases, a dentist. The prescriptions are then

filled by a compounding pharmacy affiliated with th

e center and delivered to the buyer either

through the mail or at the “clinic.”

In a series of news reports during 2007,

eight active major league players and

eight former players were identi

fied as appearing in the customer records of either anti-aging

clinics or compounding pharmacies

that are involved in this ill

egal trade. Those players

reportedly purchased steroids, human growth horm

one, and other drugs used

to counteract the

effects of steroid use.

Several players mentioned in these news reports admitted that they purchased

human growth hormone from an anti-aging clinic

or rejuvenation center and claimed that the

purchases were to treat an injury or other

medical condition. The F

ood and Drug Administration

has never approved the use of huma

n growth hormone to treat an at

hletic injury, to become more

lean, or to improve athletic performance. The

use of human growth horm

one is a violation of

federal law if not for an authorized purpose, even

if with a prescription.

In any event, based on

the news reports it is doubtful th

at the prescriptions were valid.

In the section of this report entitled “A

lleged Internet Purchases of Performance

Enhancing Substances By Players in Major Le

ague Baseball,” I brie

fly describe alleged

purchases by sixteen players. The information

in that section was obtai

ned from public sources,

SR-23

primarily news articles. All of these disclosure

s arose out of investigat

ions by federal and state

law enforcement agencies.

H. Major League Baseball’s Joint

Drug Prevention and Treatment Program

The joint drug prevention and treatment program was added to the Basic

Agreement in 2002. Under that program, testing

has been conducted of players in Major League

Baseball since 2003, first in the fo

rm of anonymous survey testing in 2003, and thereafter in

mandatory random testing that now carries with it

severe penalties for violations. The program

has been amended formally twice since 2002 as

the result of negotiations between the

Commissioner and the Players Association, and othe

r minor modifications also have been made.

As a result, penalties have been

increased, the list of prohibite

d substances has been lengthened,

and some improvements in procedures have been made.

Adoption of the current program was a

positive first step. The information

obtained in this investigation s

uggests that the use of detectable

steroids by players in Major

League Baseball has declined but the use of hum

an growth hormone has increased. In some

respects, however, the program still falls short of

current best practices in drug testing for the use

of performance enhancing substances.

The drug testing programs in all sports

, including the Olym

pics, have evolved

over time through a process of trial and error,

as the programs were modified to address

problems and concerns. In that respect, baseball's program has been like all the others. The

challenge now is to take the program to a new a

nd higher level and to then

continue the process

of improvement to deal with the problems a

nd concerns which cannot be foreseen but which

inevitably will arise. Certai

n characteristics are now widely

recognized as essential to an

effective testing program. These are: independ

ence of the program administrator; transparency

SR-24

and accountability; effective, ye

ar-round, unannounced testing; adhe

rence to best practices as

they develop; due process for athletes; ade

quate funding; and a robust education program.

Programs based on these principles ca

n more readily adapt to changing

circumstances in the ongoing contest between at

hletes who compete clean and those who do not,

although even the strongest program by itself ca

nnot entirely eradicate the use of banned

substances. The Major League Baseball joint dr

ug program can be strengthened in several of

these areas. Most notably, the program is not ad

ministered by a truly independent authority.

Although in their latest revisions

to the program the parties esta

blished an “independent program

administrator,” the Commissioner’s Office and th

e Players Association continue to retain

authority over the program administ

rator and other important issues.

The current program also lacks transparenc

y, an essential attribute to demonstrate

the integrity and effectiveness of the program to outside observers. Transparency is most often

obtained by issuing periodic repo

rts on a program’s operations,

including reporting aggregate

data on testing, and by regular

audits, neither of which is

now done under the joint program.

Concerns have been raised about the

collection procedures

used, including

allegations that some players received advance notice of testing. In

Game of Shadows

, and in an

earlier San Francisco Chronicle article, the au

thors described a surrept

itious recording of a

conversation that reportedly occurred in spring

2003 between Greg Anderson and an unidentified

person. In that conversation, Anderson reportedl

y claimed that he would receive notice of

upcoming tests between one and two weeks in advan

ce. He also reportedly claimed that testing

was “going to be either at the end of

May or beginning of June . . .”

I could not obtain a copy of the record

ing or otherwise confirm that Anderson

made these statements, or that he made them be

fore late May 2003 as reported by the authors.

SR-25

However, records that we obtained from the cont

ractor who administered

his tests show that

Bonds was tested on May 28 and June 4, 2003. Theref

ore, if the report of

this conversation is

accurate Anderson correctly predicted the dates of

testing, at least for his client Barry Bonds.

We interviewed the relevant personnel

from Comprehensive Drug Testing, Inc.,

the company responsible for sample collection

under the Major League Baseball joint drug

program. Those witnesses denied that they provi

ded advance notice of test dates to Bonds or

anyone else. CDT witnesses also told us that

advance notice of testing

dates was never provided

to Quest Diagnostics, Inc., the laboratory that pr

ocessed test samples, so Quest personnel could

not have been the source of advance notice to

anyone else. A Quest spokesman was reported to

have said the same thing in the orig

inal news article about the recording.

I also investigated other allegations that

some players received advance notice of

tests in 2004. In April 2004 fe

deral agents executed search

warrants on the two private firms

involved in the 2003 survey testing, Comprehens

ive Drug Testing, Inc. and Quest Diagnostics,

Inc.; the warrants sought drug

testing records and samples fo

r ten major league players

connected with the BALCO investigation. In the c

ourse of those searches,

the agents seized data

from which they believed they could determine

the identities of the major league players who

had tested positive during the anonymous survey testing.

Shortly after these events, the Players A

ssociation initiated discussions with the

Commissioner’s Office regardi

ng a possible suspension of dr

ug testing while the federal

investigation proceeded. Manfred sa

id the parties were concerned at

the time that test results that

they believed until then raised only employment

issues had now become an issue in a pending

criminal investigation. Ultimately, the Comm

issioner’s Office and the Players Association

agreed to a moratorium on 2004 drug testing. While

the exact date and lengt

h of this moratorium

SR-26

is uncertain, and the relevant 2004

testing records have been dest

royed, Manfred stated that the

moratorium commenced very early in the season, pr

ior to the testing of an

y significant number of

players. Manfred stated that th

e Players Association was not author

ized to advise its members of

the existence of the moratorium.

According to Manfred, the moratorium lasted for a short period. For most

players, drug tests then resumed. With respect

to the players who the fe

deral agents believed had

tested positive during 2003 survey testing, howev

er, the Commissioner’s Office and the Players

Association agreed that:

(1) the Players Association would be

permitted to advise those players

of this fact, since that info

rmation was now in the hands of

the government; (2) the testing

moratorium would continue with respect to thos

e players until the Players Association had an

opportunity to notify them; and (3) the Players A

ssociation would not advise any of the players

of the limited moratorium.

Sometime between mid-August and early

September 2004, Manfred contacted

Orza because the Players Association had not yet

notified the players involved. The 2004 season

was drawing to a close without those players havi

ng been tested because they remained under the

moratorium. Manfred said that he pressed Orza to

notify the players as soon as possible so that

they could be tested. All of the players were notified by early September 2004.

A former major league player

stated that in 2003 he was tested as part of the

survey testing program. He said that in Se

ptember 2004, Gene Orza of the Players Association

told him that he had tested positive in 2003 and that

he would be tested in the next two weeks.

Independently, Kirk Radomski told

us that this former player had earlier told him the same thing

about Orza’s statements shortly after the c

onversation between Orza a

nd the former player

SR-27

occurred. In addition, the former player Larry Bi

gbie told us that the same former player had

told him the same thing about his conversation with Orza.

Furthermore, according to Bigbie, in 2004 a current player admitted to Bigbie that

he also had been told by a representative of th

e Players Association that he had tested positive

for steroids in 2003.

I am not permitted to identify either the former player with whom we spoke or the

current player who made the admission to Bi

gbie because the Commissioner’s Office and the

Players Association have concl

uded that for me to do so woul

d violate the confidentiality

provisions of the joint program.

According to the redacted affidavit filed

in support of a search warrant sought for

Jason Grimsley’s residence, Grimsley told federa

l agents that he, too, was informed that he had

tested positive for anabolic steroids in 2003. The

identity of the person who so advised Grimsley

is redacted in the public version of the affida

vit, and I did not have access to the unredacted

version.

Other players may have received similar

notice, since (1) the program required

that each player be tested once during the

2004 season, (2) the Commissioner’s Office and the

Players Association agreed that, since the govern

ment had the names of the players who they

believed had tested positive in 2003, those players

should be notified and should not be tested in

2004 until that notification had taken place, and (3) that notificati

on did not take place until late

August or early September 2004, just

weeks before the season ended.

Orza declined my request for an interview.

Affidavit of IRS Special Agent Jeff Novitz

ky in Support of Search Warrant, sworn to

on May 31, 2006, ¶ 16.

SR-28

Officials of the Commi

ssioner’s Office emphasized that the circumstances

described above represented an emergency resp

onse to an unforeseen event: a government

investigation that obta

ined the names of players who had

tested positive in the 2003 survey

testing, information that the parties had agreed

in advance would be anonymous. Consequently,

they assert that it does not descri

be the normal operation of the program.

The Players Association objected to my

making any reference to this matter in

this report. I offered to include a statement

by the Association and they provided me with the

following:

Because of certain actions by the

Government in 2004 (which led to

litigation, much of which has been unde

r seal), the parties were forced to

confront a serious threat to the c

onfidentiality and integrity of our

program. To combat that threat, and i

ndeed to save the credibility of our

program, the parties undertook certain meas

ures in that year only. These

were not unilateral actions undert

aken by the MLBPA, but actions

discussed and agreed upon between

the MLBPA and the Commissioner’s

Office. Each party was fully aware and in agreement with the steps the

other was taking.

The MLBPA believes that, by publishing in

this Report anything related to

these subjects, Senator Mitchell and the Commissioner’s Office are

breaching promises of confidentiality made to the MLBPA and to its

members.

I. Recommendations

To prevent the illegal use of performance enhancing substances in Major League

Baseball, I make a series of recommendations

. Some can be implemented by the Commissioner

unilaterally; some are subject to collective bargai

ning and therefore will re

quire the agreement of

the Players Association.

The recommendations below focus on three principal areas: investigations based

upon non-testing evidence; player ed

ucation; and further improvements in the testing program.

These recommendations are designed to work

in combination with one another to more

SR-29

effectively combat performance enhancing subs

tance violations. It bears emphasis that no

testing program, standing alone, is enough. Certai

n illegal substances ar

e difficult or virtually

impossible to detect, and law enforcement i

nvestigations of Kirk Radomski and compounding

pharmacies and anti-aging clinics sh

ow that, even in this era of

testing, players can continue to

use performance enhancing substances while avoi

ding detection. Indeed,

one leading expert has

argued that “testing only scratches the surface.” Th

e ability to investigate vigorously allegations

of performance enhancing substa

nce violations is an essentia

l part of any meaningful drug

prevention program.

First, the Commissioner should create a Department of Investigations, led by a

senior executive who reports dire

ctly to the president of Majo

r League Baseball, to respond

promptly and aggressively to allegations of

the illegal use or possession of performance

enhancing substances. The success of that official will depend in

part upon his interaction with

law enforcement officials, who in the course of

their own investigations obtain evidence of

athletes’ possession or use of illegal substances

that, under appropriate circumstances, can be

shared with sports leagues, as

recent events in both Major League

Baseball and other sports have

demonstrated.

The Commissioner also should strengthen

existing efforts to keep illegal

substances out of major league clubhouses. Gi

ven 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. Clubs also should be

required to adopt policies to ensure that alle

gations of a player’s possession or use of

performance enhancing substances are reported pr

omptly to the Department of Investigations.

SR-30

Second, improved educational programs about the dangers of substance use are

critical to any effort to deter performance enhanc

ing substance use. Over

the last several years,

the Commissioner’s Office and the Players Associati

on have made an increas

ed effort to provide

players and some club personnel with educational materials on performance enhancing

substances. Some of these efforts have been effective, but we heard criticism from both former

players and club personnel about the

anti-steroids education programs.

Most of the educational programs we re

viewed address the

side effects of

performance enhancing substance use and the dele

terious health effects of long-term use.

According to Dr. Jay Hoffman, a former professiona

l athlete and expert in

the field, discussions

of health risks alone, although important, genera

lly will not deter a player from using these

substances because players who consider using

performance enhancing substances do not view

them as dangerous if used properly. To count

er this skepticism, Dr

. Hoffman proposes that

education about the dangers of

performance enhancing substances be combined with education

on how to achieve the same results through prop

er training, nutrition, and supplements that are

legal and safe.

Another health risk associ

ated with performance enha

ncing substances is the

unknown nature and origin of the substances. Play

ers need to be aware of the risks associated

with buying black market drugs.

The public outcry over the use of pe

rformance enhancing substances in

professional sports has provided the substance

dealer with an opportunity to exploit his

relationship with a player. Those players

who buy and use illegal performance enhancing

substances place their livelihoods and reputations

in the hands of drug dealers. Players also

SR-31

should be reminded of their responsibilities as ro

le models to young athletes, who in emulating

major league players’ illegal substan

ce use will place themselves at risk.

Third, although it is clear that even the be

st drug testing program is, by itself, not

sufficient, drug testing remains an important elem

ent of a comprehensive approach to combatting

the illegal use of performance

enhancing substances. In Major League Baseball, however, the

Commissioner does not have the au

thority to act unilaterally on dr

ug testing; the agreement of

the Players Association is required. The curre

nt 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. Th

ere is no way for me to know whether that will happen again.

In recognition of the uncertainties asso

ciated with both the timing of further

action on drug testing and the position of the partie

s when that action does take place, I set forth

in this report the principles that presently char

acterize a state-of-the-a

rt drug testing program.

Every program should be updated regularly to ke

ep pace with constantly changing challenges

and best practices. It will be

for the clubs and the Players As

sociation to decide when to

undertake a fresh review of these issues. When

they do, I urge them to incorporate into the

Major League Baseball joint drug program the

principles described in this report.

The program should be administered by a

truly independent authority that holds

exclusive authority over its stru

cture and administration. This

could be in the form of an

independent expert who cannot

be removed except for good cause

, an independent non-profit

corporation, or another structure

devised and agreed to by the Players Association and the major

league clubs.

SR-32

The program should be transparent to th

e public, by allowing for periodic audits

of its operations and providing regular reports of

aggregate data on testing and test results. The

program should include adequate year-round, unannounced testing and employ best practices as

they develop. How the program achieves those obj

ectives is best left

to a truly independent

administrator to decide. To ensure that he

can accomplish these objectives, the program should

receive sufficient funding. The program should c

ontinue to respect the legitimate privacy and

due process rights of the players.

* * *

All of these recommendations are prosp

ective. The onset of mandatory random

drug testing, the single most im

portant step taken so far to co

mbat the problem, was delayed for

years by the opposition of the Players Association. However, there is valid

ity to the assertion by

the Players Association that, pr

ior to 2002, the owners did not push hard for mandatory random

drug testing because they were much more conc

erned about the serious economic issues facing

baseball.

To prolong this debate will not resolve it

; each side will dig in its heels even

further. But it could seriously and perhaps fatally

detract from what I believe to be a critical

necessity: the need for everyone in baseball to

work together to devise and implement the

strongest possible strategy to co

mbat the illegal use of perf

ormance enhancing substances,

including the recommendations set forth in this report.

I was asked to investigate the use of pe

rformance enhancing substances by major

league players and to report what I found as fa

irly, as accurately, and as thoroughly as I could.

I have done so.

SR-33

Only the Commissioner is vested with aut

hority to take disciplinary action. Any

such determination is properly for the Commissione

r to make, subject to th

e players’ right to a

hearing.

I urge the Commissioner to forego impos

ing 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 ag

ainst it; but I be

lieve that those in favor are

compelling.

First, a principal goal of th

is investigation is to bri

ng to a close this troubling

chapter in baseball’s history and

to use the lessons learned from the past to prevent the future use

of performance enhancing substances. While that

requires us to look back, as this report

necessarily does, all efforts s

hould now be directed to th

e future. That is why the

recommendations I make are prospective. Spendi

ng more months, or even

years, in contentious

disciplinary proceedings will keep

everyone mired in the past.

Second, most of the alleged violations in

this report are distant in time. For

current players, the allegations

of possession or use are at least

two, and as many as nine years

old. This covers a period when Major League

Baseball made numerous changes in its drug

policies and program: it went from limited probabl

e cause testing to mandatory random testing;

since 2002, the penalties under the program have

been increased several times; human growth

hormone was not included as a prohibited s

ubstance under the joint drug program until 2005.

Under basic principles of labor

and employment law, an employe

r must apply the policies in

place at the time of the conduct in question in dete

rmining what, if any, discipline is appropriate.

SR-34

Until 2005, there was no penalty for a first positive drug test under the joint drug program,

although the Commissioner ha

s always had the authority to im

pose discipline for “just cause” for

evidence obtained outside of the program.

Third, and related, more than half of th

e players mentioned in this report are no

longer playing in Major League Baseball or its

affiliated minor leagues and thus are beyond the

authority of the Commissioner to impose discipline.

Fourth, I have reported what I learned.

But I acknowledge and even emphasize

the obvious: there is much about

the illegal use of performance e

nhancing substances in baseball

that I did not learn. There were ot

her suppliers and there have been

other users, past and present.

Many of those named in this report were supplied

by Kirk Radomski. Yet plainly he was not the

only supplier of illegal substances

to major league players. Radomski himself said that some

players told him they had other

sources. And the evidence demons

trates that a number of players

have obtained performance enhanc

ing substances through so-called “rejuvenation centers” using

prescriptions of doubtful validity.

Fifth, the Commissioner promised, and I agre

ed, that the public should know what

I learned from this investigation. Perhaps the mo

st important lesson I learned is that this is a

serious problem that cannot be solved by anythi

ng less than a well-conceived, well-executed, and

cooperative effort by everyone involved in baseba

ll. From my experience in Northern Ireland

I learned that letting go of the past and looking to

the future is a very ha

rd but necessary step

toward dealing with an ongoing problem.

That is what baseball now needs.

It should be noted, however, th

at the rule that there would

be no discipline for the first

positive test was part of the quid pro quo for the

Players Association’s agreement to mandatory

random drug testing. Indeed, the Basic Agreemen

t protects a “First Posi

tive Test Result” from

discipline but does not similarly protect the first

use of steroids from discipline. The primary

evidence of wrongdoing in this report was not obt

ained from baseball’s

testing program but

rather from an inde

pendent investigation.

SR-35

The Commissioner should give the player

s 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. This

would be a tangible and positive way for him to dem

onstrate to the players, to the clubs, to the

fans, and to the general public his desire for the

cooperative effort that baseball needs to deal

effectively with this problem. It also would

give him a clear and convincing basis for imposing

meaningful discipline for future violations.

J. Conclusions

There has been a great deal

of speculation about this

report. Much of it has

focused on players’ names: how many and which ones. After considering that issue very

carefully I concluded that it is

appropriate and necessary to in

clude them in this report.

Otherwise I would not have done what I was asked

to do: to try to find out what happened and

to report what I learned accu

rately, fairly, and thoroughly.

While the interest in names is understa

ndable, I hope the media and the public

will keep that part of the report in context a

nd will look beyond the indi

viduals to the central

conclusions and recommendations of this report.

In closing, I want to emphasize them:

1. The use of steroids in Major League Baseball was widespread. The

response by baseball was slow to

develop and was initially ineff

ective. For many years, citing

concerns for the privacy rights of the player

s, the Players Association opposed mandatory

random drug testing of its members for steroids

and other substances. But in 2002, the effort

gained momentum after the clubs and the Players

Association agreed to

and adopted a mandatory

random drug testing program. The current program

has been effective in that detectable steroid

use appears to have declined. However, that

does not mean that players have stopped using

performance enhancing substances. Many play

ers have shifted to

human growth hormone,

which is not detectable in any currently available urine test.

SR-36

2. The minority of players who used such substances were wrong. They

violated federal law and baseball policy, and th

ey distorted the fairness of competition by trying

to gain an unfair advantage over the majority

of players who followed the law and the rules.

They – the players who follow the law and the rule

s – are faced with the painful choice of either

being placed at a competitive disadvantage or

becoming illegal users themselves. No one should

have to make that choice.

3. Obviously, the players who illegal

ly used performance enhancing

substances are responsible for their actions.

But they did not act in a vacuum. Everyone

involved in baseball over the past two decades

– Commissioners, club o

fficials, the Players

Association, and players – shares to

some extent in the responsibil

ity for the steroids era. There

was a collective failure to recogni

ze the problem as it emerged and to

deal with it early on. As a

result, an environment developed in which illegal use became widespread.

4. Knowledge and understanding of the past

are essential if the problem is to

be dealt with effectively in the future. But bein

g chained to the past is

not helpful. Baseball

does not need and cannot afford to engage in a ne

ver-ending search for the

name of every player

who ever used performance enha

ncing substances. The Commissione

r was right to ask for this

investigation and report.

It would have been impossible to get

closure on this issue without it, or

something like it.

5. But it is now time to look to the futu

re, to get on with the important and

difficult task that lies ahead. Ev

eryone involved in Major League Ba

seball should join in a well-

planned, well-executed, and sustained effort to

bring the era of steroids and human growth

hormone to an end and to prevent its recurrence in

some other form in the future. That is the

SR-37

only way this cloud will be removed from the game. The adoption of the recommendations set

forth in this report will be a

first step in that direction.

REPORT TO THE COMMI

SSIONER OF BASEBALL

OF AN INDEPENDENT INVESTIGATION INTO

THE ILLEGAL USE OF STEROIDS AND OTHER

PERFORMANCE ENHANCING SUBSTANCES

BY PLAYERS IN MAJOR LEAGUE BASEBALL

I. Scope of this Investigation

The powers of the Commissioner of Baseball are established by contract. The

Major League Constitution is the governing agreement among the thirty major league clubs,

under which the powers of the Commissioner are e

numerated. Article II, section 2 of that

agreement grants the Commissioner the power:

. . . [t]o investigate . . . any act, tran

saction or practice charged, alleged or

suspected to be not in th

e best interests of the na

tional game of Baseball,

with authority to summon persons and to order th

e production of

documents and in case of refusal to appear or produce, impose such

penalties as are hereinafter provided.

The Commissioner also is empowered

“ . . . [t]o determine, afte

r investigation, what preventive,

remedial or punitive action is appropriate” agains

t either major league clubs or individuals.

The Commissioner’s “best interest

s” powers do not extend “to any

matter relating to the process

of collective bargaining” between the clubs and th

e Major League Baseball Players Association.

Because the Commissioner’s powers are

granted by contract, only persons who

are subject to the provisions of that agreemen

t – those employed in Major League Baseball and

affiliated organizations (such as clubs in the affiliated minor leagues) – are subject to the

Commissioner’s powers. Unlike a government

al body, therefore, the Commissioner does not

Major League Const., Art. II, §§ 2(b), (c

) (2003). The “best interests of baseball”

provision is essentially uncha

nged from the provision under which

the powers were granted to

the first Commissioner of Baseball,

Judge Kenesaw Mountain Landis.

See

New Major League

Agreement, Art. I, § 2 (1921). For players, the permissible discipline includes temporary or

permanent ineligibility, or a fine. For clubs, pe

rmissible penalties includ

e exclusion from major

league meetings, a fine of up to $2 million or denial of certain player se

lection rights. For club

officials, the Commissioner may levy a fine of up to $500,000. In all cases, the Commissioner

also can take “such other actions as the Comm

issioner may deem appropriate.” Major League

Const., Art. II, § 3.

have the power to compel testimony or the produc

tion of relevant eviden

ce from third parties,

including former players.

Acting pursuant to his enumerated

powers, on March 30, 2006, Commissioner

Selig appointed me to conduct an investigation:

. . . to determine, as a factual matter, whether any Major League players

associated with [the Bay Area Labor

atory Co-Operative] or otherwise

used steroids or other illegal perf

ormance enhancing substances at any

point after the substances were

banned by the 2002-2006 collective

bargaining agreement.

The Commissioner said that he

was prompted to ask me to c

onduct this inves

tigation by the

publication of the book

Game of Shadows

, which “amplified” allegations regarding the

relationship between certain play

ers and Greg Anderson, a personal

trainer, and with BALCO, an

enterprise whose principals were convicted of su

pplying illegal steroids and other substances to

professional athletes in

a number of sports.

The Commissioner also acknowledged that

conduct “before the

effective date of

the 2002 Basic Agreement” could be relevant, and

he authorized me, if necessary, “to expand the

investigation and to follow the evidence wherever it may lead.”

I welcomed this latitude as

necessary to ensure that my findings were reache

d in the proper context and that I would not be

required to request additional investigativ

e authority from the Commissioner once the

investigation began.

The Players Association is only the bargai

ning representative for active major league

players.

Press Release, Major League Baseball O

ffice of the Commissioner, Statement of

Commissioner Allan H.

Selig (Mar. 30, 2006).

Id.

My investigation did not include an examin

ation of the use of amphetamines by players

in Major League Baseball. The allegedly widesp

read use of amphetamines in baseball, rumored

As stated above, the Commissioner’s aut

hority under the “best interests of

baseball” provision does not apply to

any matter “related to the pro

cess of collective bargaining.”

In addition, as a party to the collective bargai

ning agreement between the Players Association

and the thirty major league clubs

, the Commissioner is bound by the terms of that agreement. As

will be discussed further below, the subject of drug testing for any substance has been

determined by baseball arbitrator

s to be a mandatory subject of

collective bargaining. Since the

2002 Basic Agreement, the major league clubs and

the Players Association have been parties to

Major League Baseball’s Joint Drug Prevention

and Treatment Program, which contains detailed

provisions that affect the Commi

ssioner’s ability to act

in some instances. Other provisions of

the Basic Agreement also are implicated by an investigation of this nature, including that the

Players Association receive prior notice of any reque

st for an interview of a current major league

player.

for decades, is a problem distinct from more recent allegations that players have used steroids

and other substances with anabolic or similar e

ffects to gain an unfair competitive advantage.

I was asked to examine the latter question, and

I am comfortable that a thorough examination did

not require me to look into the additional problem

s posed by amphetamines use, serious as those

problems might be. Moreover, an expansion of

the scope of this inve

stigation to include

amphetamines use inevitably woul

d have increased the already significant time that was needed

to complete this investigation and diluted it

s focus, which I believe would have hampered

whatever improvements might be achie

ved as a result of this report.

II. Major League Baseball a

nd Other Sports Must Combat

the Illegal Use of Performance Enhancing Substances

The illicit use of anabolic steroids an

d other performance enhancing substances

by players in Major League Baseball is a probl

em that must be addressed, for a number of

reasons. First, steroids, human

growth hormone, and similar substances pose significant health

risks to those who use them. This is especially

true of illegal users, who often obtain dubious

products (contaminated or othe

rwise) from black market sources, self-administer these

substances with no medical supervision based on

advice gleaned from internet sites and fellow

bodybuilders, and use these substances in amounts that far exceed those that are prescribed by

physicians for legitimate uses.

Second, beyond the dangerous effects on players themselves, the public

perception that players in Major

League Baseball use these substa

nces contributes to their use by

young athletes, who in turn cause themselves great

physical harm. Adolescents might be at even

greater risk of harm than adult athletes from

the use of these substances because the intense

hormonal changes of adolescence can exacerbate

their adverse psychiatric side effects.

Third, the illegal use of anabolic ster

oids, human growth hormone, and similar

drugs poses a significant threat to

the integrity of the game of ba

seball. The widespread use of

these substances raises questions about the va

lidity of records and th

eir comparability across

different eras. Because such use is in violati

on of law, professional baseball players who do so

can place themselves in a position of vulnerabili

ty to drug dealers who might use their access and

knowledge of violations of law

to their own advantage, through

threats intended to affect the

outcome of baseball games or otherwise.

Restoring Faith in America’s Pastime: Eval

uating Major League Ba

seball’s Efforts to

Eradicate Steroid Use: Hearing Be

fore the H. Comm. on Gov’t Reform, 109

Cong. 307 (2005)

(statement of Dr. Kirk Brower).

Finally, and very important from my perspective,

the illegal use of these

substances by some players is unfair to the ma

jority of players who do not use them. These

players have a right to expect

a level playing field where succe

ss and advancement to the major

leagues is the result of ability

and hard work. They should not be forced to choose between

joining the ranks of those who illegally use these

substances or falling short of their ambition to

succeed at the major league level.

Health Risks from Abuse of Steroids and Other

Widely Used Performance Enhancing Substances

Anabolic steroids and human growth horm

one can have seriou

s negative effects

on the human body.

1. Adverse Effects of Anabolic Steroid Abuse

The term “steroids,” when used in the c

ontext of athletic performance enhancing

drugs, refers to a class of drugs more preci

sely known as anabolic androgenic steroids.

Anabolic steroids are natural

or synthetic versions of test

osterone, the primary male sex

hormone.

Steroids foster the anabolic process

(muscle growth and th

e increase of muscle

mass) and also limit catabolism (the breakdown of pr

otein in muscle cells). As a result, steroid

users can increase the muscle gain resulting from strenuous exerci

se and maximize the impact of

a high protein diet. In additi

on, because of their an

ti-catabolic effect, steroids reduce the

soreness that normally results from strenuous exerci

se, which allows an athl

ete using steroids to

The two primary characteristics of these dr

ugs are (1) “anabolic”

in that they induce

muscle growth and increased muscle mass,

and (2) “androgenic” because they promote

development of male sexual ch

aracteristics. J.D. Wilson, 9

Androgen Abuse by Athletes

Endocrine Revs. 181-99 (1988);

see also

Will Carroll and William L. Carroll,

The Juice: The

Real Story of Baseball’s Drug Problems

10, 14, 47-52 (Ivan R. Dee 2005).

A.M. Matsumoto,

Clinical Use and Abuse of An

drogens and Antiandrogens,

Principles

and Practice of Endocrinology and Metabolism,

1181-1200 (Kenneth L. Becker ed., 3d ed.

2001).

exercise more frequently, even daily. At least

until a given anabolic steroid loses its efficacy for

the user, larger doses generally result in more

rapid gains in lean muscle mass and strength.

The adverse side effects of anabolic ster

oids used at the le

vels necessary to

achieve these effects can be significant, however.

In part, this is because the doses of anabolic

steroids typically used by athletes are much high

er than those that woul

d be prescribed for any

legitimate therapeutic use, between 5 and 30 times gr

eater than the level of testosterone naturally

produced by the body.

Advocates of illicit steroid use by athletes argue that the adverse side effects have

been exaggerated, focusing their arguments on

the limited clinical trial data available.

Medical

ethics have prevented the scientif

ic study of the massive doses of

steroids taken by athletes using

these drugs to obtain an

athletic advantage.

Despite this limitation, however, there are

sufficient data to conclude that there is an

association between steroi

d abuse and significant

adverse side effects.

These side effects include:

See

S. Bhasin, et al.,

The Effects of Supraphysiologic Dose

s of Testosterone on Muscle

Size and Strength in Normal Men

, 335 New Eng. J. of Med. 1-7 (1996); S. Bhasin, et al.,

Older

Men are as Responsive as Young Men to the Anabolic Effects of Graded Doses of Testosterone

on the Skeletal Muscle

, 90 J. of Clinical Endocri

nology & Metabolism 678-88 (2005).

J. Hoffman and N. Ratamess,

Medical Issues Associated with Anabolic Steroid Use:

Are They Exaggerated?

, 5 J. of Sports Science & Med. 182,

183 (2006) (citing P.J. Perry, et al.,

Anabolic Steroid Use in Weightlifters and Bodybuild

ers: An Internet Survey of Drug Utilization,

15 Clinical J. of Sports Med. 326-30 (2005)).

See, e.g.,

Daniel Duchaine,

Underground Steroid Handbook II 60 (1989); W. Nathaniel

Phillips,

Anabolic Reference Guide

123 (6th ed. 1991); William Llewellyn,

Anabolics 2007 32

(6th ed. 2007).

See

C.J. Bagatell and W.J. Bremner,

Androgens in Men – Uses and Abuses

, 334 New

Eng. J. of Med. 707-14 (1996); Hoffman and Ratamess,

supra

note 24, at 183-84.

For an overview of the current state-of-the-science,

see

Hoffman and Ratamess,

supra

note 24, at 182-93, and F. Hartgens and H. Kuipers,

Effects of Androgenic-Anabolic Steroids in

Athletes

, 34(8) Sports Med. 513-54 (2004). For additional references related

to side effects of

steroid use,

see

Bagatell and Bremner,

supra

note 26, at 707, Matsumoto,

supra

note 22, at 1181-

1200, and J.W. Lenders, et al.,

Deleterious Effects of Anabolic

Steroids on Serum Lipoproteins,

Psychiatric Effects:

studies have found a strong

link between steroid abuse and

serious adverse psychiatric symptoms, in

cluding mania, hypomania, and severe

depression. Steroid users also

appear to be at higher risk of suicide, especially

during withdrawal.

Cardiovascular Effects:

anecdotal evidence sugg

ests a possible connection

between steroid abuse and heart attack

s in young and middle-aged bodybuilders.

Steroid abuse has been tied more defin

itively to adverse effects on cholesterol

levels, and a connection is suspected between

steroid abuse and an enlarged heart.

Liver Damage:

The use of oral anabolic steroi

ds has been tied to liver injury,

including impaired liver functionality,

cholestasis (impaire

d bile drainage),

jaundice, an elevated risk of liver tumo

rs and liver cancer, and peliosis hepatis

(the life-threatening devel

opment of blood-filled cysts in the liver). Abnormal

liver function might be revers

ible, but recurrent use of

steroids at high doses can

lead to serious liver di

sorders in the long term.

Harm to Reproductive System:

Anabolic steroids can have significant adverse

effects on the reproductive system as a re

sult of their interference with the body’s

natural production of testosterone. In

men, extended steroid abuse can result in

hypogonadism, in which the body ceases the natural production of testosterone.

Steroid abuse also can result

in severe shrinkage of th

e testes and a reduction in

Blood Pressure, and Liver Functi

on in Amateur Bodybuilders

, 9 Int’l J. of Sports Med. 19-23

(1988).

Adolescents might be especially vulnerable

because they are “already subject to normal

surges of sex hormones during puberty, which are

associated with expected, albeit sometimes

problematic changes in

mood and behavior.”

Restoring Faith in America’s Pastime: Evaluating

Major League Baseball’s Efforts to Eradicate

Steroid Use: Hearing Before the H. Comm. on

Gov’t Reform, 109

Cong. 145 (2005) (statement of Dr. Kirk Brower).

sperm count to minimal levels, resulting in infertility. Even when reversible, the

effects of steroid abuse on testosterone production and fertility can take many

months or longer. In women, steroids

suppress ovarian function and can impair

fertility.

Musculoskeletal Effects:

Steroid abuse may cause st

unted growth in adolescents

due to the premature fusion of growth pl

ates of the long bones in the legs and

arms. There also appears to be a connection between steroid use and an increased

risk of tendon tears in athletes.

Other Adverse Effects in Men:

In men, steroid abuse can cause severe acne,

excess stimulation of sebaceous glands

on the face and body, an increase in body

hair, and acceleration of male

pattern balding. Enlargem

ent of the prostate gland

can occur. In addition, gynecomastia (male breast enlargement) occurs in some

male steroid abusers as the body converts

excess testosterone

or testosterone

precursors to estrogenic compounds. Some

steroid abusers take anti-estrogen

drugs such as tamoxifen or raloxifene to

block the effect of

the excess estrogen.

Other Adverse Effects in Women:

The hormonal imbalance between estrogen

and androgens caused by steroids can cau

se breast shrinkage, acne, facial and

body hair growth, loss of scalp hair, a

nd balding. Steroid use also causes

enlargement of the larynx causing a deep

ening of the voice, and enlargement of

the clitoris. Several of these virilizing effects can be permanent.

Potential for Addiction:

A report by the Nationa

l Institute on Drug Abuse

concluded that some steroid users exhi

bit addictive behaviors identical to

symptoms of addiction to other drugs of abuse, including “withdrawal symptoms

‘such as mood swings, fatigue, restlessne

ss, loss of appetite, insomnia, reduced

sex drive, and the desire

to take more steroids.’”

2. Adverse Effects of Human Growth Hormone

Human growth hormone is a protein hor

mone produced naturally in the body by

the anterior pituitary gland. It

is essential for growth and de

velopment and is responsible for

regulation of adult height, muscle and organ grow

th, and has a role in sexual development.

Since 1985, it has been available in

a synthetic form called recombinant human growth hormone.

Human growth hormone acts primarily by stimulat

ing the liver to produce

insulin-like growth

factor (IGF-1), the more potent growth stimulant.

Both appear to have anabolic effects in adults

in that they enhance protein synthesis and protein turnover in muscles.

A number of studies have shown that

use of human growth hormone does not

increase muscle strength in healt

hy subjects or well-trained athletes.

Athletes who have tried

human growth hormone as a training aid have reached the same conclusion. The author of one

2006 Steroids Report, Steroids Working

Group, United States Se

ntencing Commission,

at 25 (Mar. 2006) (quoting Nat’l Inst. on Drug Abuse,

Anabolic Steroid Abuse

, NIH Pub. No. 00-

3721, at 6 (Apr. 2000)).

C. Ehrnborg, et al.,

Supraphysiologic Growth Hormone:

Less Fat, More Extracellular

Fluid but Uncertain Effects on Musc

les in Healthy, Active Young Adults

, 62 Clinical

Endocrinology 449-457 (2005); J. Gibney, et al.,

Growth Hormone and Testosterone Interact

Positively to Enhance Protein and Energy

Metabolism in Hy

popituitary Men

, 289 Am. J. of

Physiology-Endocrinology & Metabolism E266-71 (2005).

R. Deyssig, et al.,

Effect of Growth Hormone Tr

eatment on Hormonal Parameters,

Body Composition and

Strength in Athletes

, 128 Acta Endocronolog

ica 313-18 (1993); K.E.

Yarasheski, et al.,

Effect of Growth Hormone and Resist

ance Exercise on Muscle Growth in

Young Men,

262 Am. J. of Physiology-Endocrino

logy & Metabolism E261-67 (1992);

K.E. Yarasheski, et al.,

Short-term Growth Hormone Treatm

ent Does Not Increase Muscle

Protein Synthesis in Experienced Weight Lifters,

74 J. of Applied Physiology 3073-76 (1993).

A more recent study concluded

that high doses of growth hor

mone did significantly reduce body

fat in young adults but did not have any

effect on muscle mass. M.J. Rennie,

Claims for the

Anabolic Effects of Growth Hormone: A Case of the Emperor’s New Clothes?

37 Brit. J. of

Sports Med. 100-05 (2003).

book targeted at steroid abusers obser

ved that “[t]he most curious as

pect of the whole situation is

that I’ve never encountered any athlete using HGH

to benefit from it, and all the athletes who

admit to having used it will usually agre

e: it didn’t/doesn’t work for them.”

The primary attraction of human grow

th hormone for athletes seeking

performance enhancing effects appears to be that it is not detectable in any currently available

drug test.

In addition, because human growth hormone stimulates growth in most body tissues,

athletes use it to promote tissue re

pair and to recover from injury.

As is the case with steroids, however, us

e of human growth hormone is associated

with potentially severe adverse

side effects. The most remark

ed upon of these are acromegaly,

the overgrowth of bone and connective tissue that

leads to protrusion of the jaw and eyebrow

bones, and gigantism, the overgrowth of the enti

re body in children or adolescents. (In adults,

gigantism cannot occur because growth zones in bones have sealed).

Other possible side

effects include cancer, impoten

ce in men, menstrual irregularit

ies in women, cardiomyopathy,

hypothyroidism, and arthritis.

Duchaine,

Underground Steroid Handbook II

, at 74;

see also

Phillips,

Anabolic

Reference Guide

, at 39; William Llewellyn,

Anabolics 2007 501.

C.M. McHugh, et al.,

Challenges in Detecti

ng the Abuse of Growth Hormone in Sport

51 Clinical Chem. 1587-93 (2005).

M. Hedström, et al.,

Positive Effects of Short-Term

Growth Hormone Treatment on

Lean Body Mass and BMC After Hip Fracture

, 75 Acta Orthopaedica Scandinavica 394-401

(2004).

See

George Fan, Comment, Toward a Rational Drug Po

licy: Anabolic Steroid and

Human Growth Hormone Abuse: Creating an

Effective and Equitable Ergogenic Drug Policy

1994 U. Chi. Legal F. 439, 455-56 (1994) (citing H.A. Haupt,

Anabolic Steroids and Human

Growth Hormone

, 21 Am. J. of Sports Med. 468, 471 (1993)).

Id.

;

see

Import Alert No. 66-71, Food & Drug

Administration, Detention Without

Physical Examination of Human Growth Horm

one (HGH), also known as Somatropin (Jan. 23,

2007).

Additional risks arise from using human gr

owth hormone that has been fabricated

in compounding pharmacies, often using undilu

ted human growth hormone of unknown or

questionable origin. Before recombinant human

growth hormone was introduced, for example,

HGH was derived from cadavers and some user

s were diagnosed with Creutzfeldt-Jakob

syndrome, the human counterpart of mad-cow disease.

As with steroids, multiple use of

needles to self-administer HGH carries the risk of

infections with Hepatitis C, HIV, and other

serious diseases.

Finally, it appears that insulin is often

used by athletes in combination with

human growth hormone in an attempt to achieve a s

ynergistic effect. This can

give rise to severe

medical risks caused by resulting prec

ipitous drops in glucose levels.

Threat to the Integrity of Baseball Posed by the

Illegal Use of Performance Enhancing Substances

In initiating this investigation, Commi

ssioner Selig recognized that baseball “is

America’s pastime because of the tr

ust placed in this sport by its fans.” The alleged illegal use

of anabolic steroids and other performance e

nhancing substances by players in Major League

Baseball “is a matter of integrity”

that calls for “an impartial, t

horough review” to confront this

problem head on.

Commissioner Selig’s comments in th

is regard echo similar sentiments

expressed for decades by his predec

essors as Commissioner of Baseball.

Rule 21 of the Major League Rules prohibi

ts gambling on baseball and other acts

(such as rewarding opponents) th

at, since the “Chicago Black S

ox” scandal of 1919, have been

S.D. Frasier and T.P. Foley, Jr.,

Creutzfeldt-Jakob Disease in Recipients of Pituitary

Hormones

, 78 J. of Clinical Endocrinol

ogy & Metabolism 1277-79 (1994).

P.H. Sonksen,

Insulin, Growth Hormone, and Sport, 170 J. of Endocrinology 13-25

(2001).

Press Release, Major League Baseball O

ffice of the Commissioner, Statement of

Commissioner Allan H.

Selig (Mar. 30, 2006).

recognized as “cheating” that can a

ffect the integrity of the game.

But cheating is a broader

and more nuanced activity than the limited pr

ohibitions of Rule 21 suggest. In 1987, Bart

Giamatti, the former president of Yale University who served as president of the National

League and later as Commissione

r of Baseball, observed that:

. . . acts of cheating are intended to a

lter the very conditions of play to

favor one person. They are secretive, covert acts that strike at and seek to

undermine the basic foundation of any

contest declaring the winner – that

all participants play under identical

rules and conditions. Acts of cheating

destroy that necessary foundation and

thus strike at

the essence of a

contest. They destroy faith in th

e games’ integrity and fairness; if

participants and spectators alike cannot assume integrity and fairness, and

proceed from there, the contest cannot in its essence exist.

The illegal use of performance enhancing substances fits Giamatti’s definition of

cheating precisely. Users of these substances act in

secret, in violation of

federal law, baseball

policy and, since 2002, its collective bargaining agreemen

t. It is the intenti

on of these players to

gain an advantage over other player

s, whether or not such an advant

age actually is obtained as a

result. The problem of performance enhancing s

ubstance use in baseball has shaken the faith of

many baseball fans in the integrity and fairness of

the contest before them and in the records that

have been achieved during what has come to

be known as baseball’s “steroids era.”

The well-known commentator George Will recently observed:

Drugs enhance performance by devaluing it when they unfairly

alter the conditions of competition.

Lifting weights and eating spinach

enhance the body’s normal functioning; ma

ny chemical intrusions into the

body can jeopardize the health of

the body and mind, while causing both

to behave abnormally.

Athletes who are chemically prope

lled to victory do not merely

overvalue winning, they misunderstand

why winning is properly valued.

Professional athletes stand at an

apex of achievement, but their

See

Major League Rules, Rule 21.

A. Bartlett Giamatti,

Decision in the Appeal of Kevin Gross

, in

A Great and Glorious

Game: Baseball Writings

of A. Bartlett Giamatti

66, 72-73 (Kenneth Robson, ed., 1998).

achievements are admirable primarily

because they are the products of a

lonely submission to a sustained disc

ipline of exertion. Such submission

is a manifestation of good character. .

. . Drugs that make sport exotic, by

radical intrusions into the body, drai

n sport of its exemplary power by

making it a display of chemistry rather

than character. In fact, it becomes

a display of some chemists’ virtuos

ity and some athletes’ bad character.

Former Commissioner Fay Vincent told me

that the problem of performance

enhancing substances may be the most serious challenge that baseball has faced since the 1919

Black Sox scandal. The illegal use of anabolic steroids and similar substances, in Vincent’s

view, is “cheating of the worst sort.” He believe

s that it is imperative for Major League Baseball

to “capture the moral high ground” on the issue and, by words and deeds, make it clear that

baseball will not tolerate the us

e of steroids and other performance enhancing drugs. Similarly,

the executive director of the Player

s Association, D

on Fehr, has said:

Simply put, [the] Major League Play

ers Association does not condone or

support use by players, or by anyone el

se, of any unlawful substance or

condone the unlawful use of any substan

ce legal for certain purposes . . .

The use of any illegal substance is wrong.

Illegal drug use poses practi

cal threats to the integrity of the game, not just a

moral dilemma. In attempting to come to grips with a serious epidemic of cocaine use in

baseball in the 1980s, former Co

mmissioner Peter Ueberroth iden

tified how the integrity of

baseball can be jeopardized by drug use by major

league players. In a 1985 memorandum to the

major league clubs implementing a revise

d drug policy in baseball, he wrote:

Our other principal concern is the maintenance of the integrity of

the game. It is most important that all of us in Baseball and our fans have

the fullest confidence in our game.

Drug involvement or the suspicion of

drug involvement is inconsistent with

maintaining that essential goal.

George F. Will,

Barry Bonds’ Enhancement

, Newsweek, May 21, 2007, at 82.

Restoring Faith in America’s Pastime: Eval

uating Major League Ba

seball’s Efforts to

Eradicate Steroid Use: Hearing Be

fore the H. Comm. on Gov’t Reform, 109

Cong. 307 (2005)

(statement of Donald M. Fehr, executive director & general counsel, Major League Baseball

Players Association).

At whatever level, illegal drug us

e inevitably involves contact with

criminals. In the sports world, th

is connection will just as inevitably

involve gambling. . . . The knowledge th

at a player . . . uses drugs is a

fact which illegal gamblers clearly want to know. Drug dealers who

supply Baseball personnel can dilute

a drug or combine it with other

substances so as to affect performance and could ultimately place the user

in a position of dependence upon both the drug and its source of supply.

The results, of course, could be devastating.

Finally, and perhaps most important, the i

llegal use in baseball of steroids and

other performance enhancing substa

nces victimizes the majority

of players who do not use those

substances. A September 2000 study by the Nati

onal Center on Addiction and Substance Abuse

observed that:

‘Clean’ athletes face three choices:

(1) compete without performance-

enhancing substances, knowing that they may lose to competitors with

fewer scruples; (2) aban

don their quest because they are unwilling to use

performance-enhancing substances to

achieve a decisive competitive

advantage; or (3) use performance-e

nhancing substances to level the

playing field.

We heard from many former players who believed

it was grossly unfair that some players were

using performance enhancing substances to gain an

advantage. One former player told us that

one of the “biggest complaints” among players was th

at a “guy is using steroids and he is taking

my spot.”

Another former player noted the unfairnes

s, until 2004, that arose from the fact

that minor league players were subject to ma

ndatory random testing while players who were on

the 40-man rosters of major league clubs were ex

empt (even if playing in the minor leagues):

“Forty man [roster] guys already have all of th

e [major league] club advantages, and then they

could use steroids . . . it was

not a level playing field.”

Memorandum from Commissioner Peter V.

Ueberroth to All Clubs Re: Baseball’s

Drug Education & Prevention Program, dated May 14, 1985, at 1.

National Center on Addiction and Subs

tance Abuse at Columbia University,

Winning

at Any Cost

, at 3 (Sept. 2000).

As the former player Todd

Zeile told USA Today in a 2002 article discussing the

prevalence of steroids in the game at that time:

The sad part is that the issues I hear

discussed are whether (using steroids)

is taking away from the level playing

field or whether there are long term

effects to this stuff. I never hear

anybody talking about th

e morality or the

ethics or the integrity of the game. It’s cheating in every sense.

Zeile’s views might be held by a largely si

lent majority of players. The same

2002 USA Today article reported that

79% of active players at the time were in favor of drug

testing.

When survey testing was conducted in

2003 pursuant to baseball’s new collective

bargaining agreement, some players reportedly initially resisted submitting to drug tests because

they knew that their refusal to submit to a test would be counted as a positive for steroid use and

they wanted at least 5% of pl

ayers surveyed to test positive

so that random testing would be

implemented beginning the next season.

C. The Effects on Young Athletes

The youth of this country and other c

ountries model their behavior after

prominent athletes. “Athletes ar

e second only to parents in the extent to which they are admired

by children,” yet a Kaiser Family Foundation st

udy found that over half of the youth surveyed

believed that “it is common for famous athletes

to use steroids or other banned substances in

order to get an edge on the competition.”

If Major League Baseball players send

a message that the illegal use of

performance enhancing drugs is acceptable, more

young athletes will use these substances as

they emulate these prominent figures. This

common sense conclusion is well supported by the

Mel Antonen,

Steroids: Are they worth it?

, USA Today, July 8, 2002, at A1.

Id.

National Center on Addiction and Subs

tance Abuse at Columbia University,

Winning

at Any Cost

, at 2 (Sept. 2000).

facts. After the Associated Press reported

in August 1998 that Mark McGwire was using

androstenedione, a steroid precursor that was legal

at the time, sales of that supplement increased

by over 1,000%.

McGwire may not have wanted to be a

role model, but he was. According to

the National Institute on Drug Abuse, by 2001, 8%

of male high school seniors had used andro

within the prior year.

Some estimates appear to show a recent

decline in steroid use by high school

students; they range from 3 to 6 percent.

But even the lower figure means that hundreds of

thousands of high school-aged young people are still

illegally using steroids. It’s important to

devote attention to the Major Leag

ue Baseball players who illegally used performance enhancing

substances. It’s at least as im

portant, perhaps even more so, to

be concerned about the reality

that hundreds of thousands of our children are

using them. Every American, not just baseball

fans, ought to be shocked into action by that distur

bing truth. The recent decline is welcome, but

we cannot be complacent.

Don Hooton, whose son committed suicide

after abusing anabolic steroids,

created the Taylor Hooton Foundation for Fight

ing Steroid Abuse. In 2005 congressional

testimony, Mr. Hooton said:

I believe the poor example being set by professional athletes is a major

catalyst fueling the high usage of steroi

ds amongst our kids. Our kids look

up to these guys. They want to do the things the pros do to be successful.

* * *

Anita Manning,

Kids: Steroids Don’t Mix

, USA Today, July 9, 2002, at C1.

National Institute on Drug Abuse, Monitoring the Future: Nat’l Survey Results on

Drug Use, 1975-2006, Vol. 1, at 23 (2006).

Id.

, at 44 (2006); Centers for Dis

ease Control and Prevention,

National Youth Risk

Behavior Survey: 1991-2003: Trends in the Prevalence of Marijuana, Cocaine and Other Illegal

Drug Use

(2004).

. . . our kids know that the use of

anabolic steroids is high amongst

professional athletes. They don’t need to read Mr. Canseco’s new book to

know that something other than natura

l physical ability is providing many

of you with the ability to break so ma

ny performance records that provides

you with the opportunity to make those millions of dollars.

Our youngsters hear the message loud a

nd clear, and it’s wrong. “If you

would want to achieve your goal, it’s

OK to use steroids to get you there,

because the pros are doing it.” It’s

a real challenge for parents to

overpower the strong message that’s

being sent to our children by your

behavior.

Restoring Faith in America’s Pastime: Eval

uating Major League Ba

seball’s Efforts to

Eradicate Steroid Use:

Hearing Before the H. Comm. on Gov’t Reform, 109

Cong. 307 (2005)

(statement of Donald M. Hooton, president

& director, Taylor Hooton Foundation). Major

League Baseball has made a contribution to

the Taylor Hooton Foundation, and the Foundation

runs programs at major league ballparks.

III. The Governing Laws and Baseball Policies Regarding

Possession or Use of Performance Enhancing Substances

There is a widespread misconception th

at the use of steroids and other

performance enhancing substances, such as human

growth hormone, was not prohibited in Major

League Baseball before the inclusion of the join

t drug program in the 2002 Basic Agreement. In

fact, as early as 1991 baseball’s drug policy expre

ssly prohibited the use of

“all illegal drugs and

controlled substances, including st

eroids or prescription drugs fo

r which the individual … does

not have a prescription.”

Even before then, however, the us

e of any prescription drug without a

valid prescription was prohibited in baseball,

and even earlier under fe

deral law. In 1971,

baseball’s drug policy required compliance with fede

ral, state, and local

drug laws and directed

baseball’s athletic trainers th

at anabolic steroids should only

be provided to players under a

physician’s guidance.

A. Laws Regarding Performance Enhancing Substances

Since 1938, the Federal Food, Drug, and Cosm

etic Act has prohibited distribution

of all prescription drugs except

when a physician, based upon an i

ndividualized determination of

a proper course of treatment,

has authorized use of a drug by

a patient under the physician’s

supervision.

In 1970, in reaction to a perceived epidem

ic of drug abuse in the United States,

Congress enacted the Controlled Substances Act,

which among other things established criminal

Memorandum from Francis T. Vincent, Jr

. to All Major League

Clubs Re: Baseball’s

Drug Policy and Prevention Progr

am, dated June 7, 1991, at 2.

Memorandum from Major League Baseball Office of the Commissioner to

Administrative Officials of

Major League Baseball Clubs Re

: Drug Education and Prevention

Program, dated Apr. 5, 1971, at 2.

Federal Food, Drug, and Cosmetic Act, c.

675, 52 Stat. 1040 (codifi

ed as amended at

21 U.S.C. § 353(b)(1)(B) (2004)).

penalties for drug offenses.

The act created five schedules

of controlled substances that

categorized pharmaceuticals and drugs of abuse ba

sed on their “potential for abuse, accepted

medical utility, and safety of use under medical supervision.”

The categories ranged from

Schedule I, which was reserved for drugs such as

heroin that have “high

potential for abuse,” “no

currently accepted medical use,” and a “lack of

accepted safety,” to Schedule V, for drugs that

have a “currently accepted medical use” and a “low potential for abuse.”

More recently, “[i]n recognition

of the fact that illegal dr

ug trafficking in anabolic

steroids and human growth hormone was becomi

ng larger in scope and presenting an ever-

increasing health risk to young athl

etes, Congress addressed the issue with two amendments . . . ,

first in 1988 and then later in 1990.”

The 1988 amendment added a provision making “the

distribution of anabolic steroi

ds illegal unless (1) it was done pursuant to the order of a

physician, and (2) it was for the purpose of treating a disease.”

The 1990 amendment, called the Anabolic Steroids Control Act of 1990, imposed

more stringent controls with

higher criminal penalties for o

ffenses involvi

ng the illegal

Comprehensive Drug Abuse Prevention a

nd Control Act of 1970, Pub. L. No. 91-513,

84 Stat. 1236 (1970) (codified as amended

in scattered sections of 21 U.S.C.);

see

Allan H. Selig

and Robert D. Manfred, Jr.,

The Regulation of Nutritional Su

pplements in Professional Sports

15 Stan. L. & Pol’y Rev. 35, 37 (2004)

(citing Annalise Smith, Comment,

Marijuana as a

Schedule I Substance: Political Ploy or Accepted Science?

, 40 Santa Clara L. Rev. 1137, 1146

(2000)).

Selig & Manfred,

supra

note 56, at 37.

21 U.S.C. § 812 (2000);

see

Selig & Manfred,

supra

note 56, at 37.

U.S. Department of Justice, United Stat

es Attorney Manual, Tit. 4, ch. 19 (Human

Growth Hormone/Steroids Statutory Overview).

Id.

;

see

1988 Anti-Drug Abuse Amendments, Pub. L. No. 100-690, 102 Stat. 4181

(1988).

distribution of anabolic steroi

ds and human growth hormone.

That enactment reclassified

anabolic steroids as Schedule III controlled s

ubstances, effectively rais

ing penalties for their

illegal possession or distributi

on to levels similar to those applicable to narcotics.

In addition, the unlawful dist

ribution of human growth hor

mone was classified as

a felony punishable by up to five years impris

onment (or up to ten years imprisonment for

distribution to individuals under th

e age of 18). Those penalties al

so applied to distribution of

human growth hormone for a use other than trea

tment of a disease or as otherwise expressly

approved by the Food and Drug Administration.

Human growth hormone has never been

approved by the FDA for cosmetic, anti-aging, or athletic performance purposes.

Human

growth hormone was not included w

ith steroids as a Schedule III controlled substance, however,

meaning that under current federal

law, there is no criminal penalty for simple possession of

HGH.

Several states have regulated human gr

owth hormone as a controlled substance,

however, under their own versions of the Controlled Substances Act.

Anabolic Steroids Control Act of

1990, Pub. L. No. 101-647, 101 Stat. 4789 (1990)

(codified as amended in scattered sections of 21 U.S.C.).

Selig & Manfred,

supra

note 56, at 37 (quoting

Jeffrey Hedges, Note,

The Anabolic

Steroids Act: Bad Medicine for the Elderly

, 5 Elder L.J. 293, 297 (1997)).

Pub. L. No. 101-647, 101 Stat. 4789 (1990) (codif

ied at 21 U.S.C. § 333(e) (1992)).

See

Food and Drug Administration Import

Alert No. 66-71, Detention Without

Physical Examination of Human Growth Horm

one (HGH), also known as Somatropin (Jan. 23,

2007). In separate law enforcement proceedi

ngs in 2007, two pharmaceutical companies agreed

to settlements with federal prosecutors relating to off-label sales of human growth hormone (with

a physician’s prescription) for anti-aging, cosm

etic, or athletic pe

rformance purposes.

See

Michael S. Schmidt,

Company Agrees to a Fine Over Shipments of H.G.H.

, N.Y. Times,

Sept. 19, 2007, at D5 (Specialty Distribution Serv

ices, Inc. agrees to $10.5 million fine and

deferred prosecution agreement); Press Release,

Pfizer Inc., Pfizer Subsidiaries Reach $34.7

Million Settlement with DOJ (Apr. 2, 2007)

(Pharmacia and Upjohn agreement to $15 million

fine and deferred prosecution agreement).

See

21 U.S.C. § 333(f)(1);

see generally

George Fan, Comment,

Anabolic Steroid and

Human Growth Hormone Abuse: Creating an

Effective and Equitable Ergogenic Drug Policy

1994 U. Chi. Legal F. 439 (1994). In March 2007,

Senator Charles E. Schumer introduced a bill

The 1988 and 1990 amendments did not a

pply to many potentia

lly performance

enhancing nutritional supplements that were co

nsidered steroid “precursors,” the most well

known of which is androstenedione.

Many of these substances have anabolic effects, and

possible harmful side effects, similar to those a

ssociated with regulated anabolic steroids. In

1994 Congress enacted the Dietary Supplement Health and Education Act (“DSHEA”) after the

Food and Drug Administration announced that it w

ould tighten regulation of

supplements in the

wake of a series of deaths that were attr

ibuted to the use of L-tryptophan, an amino acid.

The DSHEA placed the burden on the FDA to prove that a supplement was unsafe

before its sale could be prohibited.

Following the enactment of the DSHEA, supplements

claiming anabolic effects that

were geared toward bodybuilders a

nd other athletes became more

widely available.

to amend the Controlled Substances Act to

add human growth hormone to Schedule III under

that Act. The bill has been referred to th

e Senate Judiciary Committee. S. 877, 110th Cong., 1st

Sess. (2007).

See, e.g.

, Colo. Rev. Stat. §§ 18-18-102, 18-18-205 (2007) (listing human growth

hormone as an anabolic steroid); Idaho

Code Ann. § 37-2709(f) (

2007) (“human growth

hormones” included on Schedule III); Minn. St

at. § 152.02 (2007) (“human growth hormones”

included in definition of anabolic steroids); R.I. Gen. Laws

§ 21-28-2.08 (2007) (listing human

growth hormone under Schedule III); W. Va. Code

§ 60A-2-208(c)(12) (

2007) (listing “[h]uman

growth hormones or anabolic steroids”

as “depressants” under Schedule III).

The 1990 amendments did apply to “immedia

te precursors” of a substance listed on

Schedule III, but supplement

manufacturers found ways around this prohibition.

See

Selig &

Manfred,

supra

note 56, at 38 (discussing marketing clai

ms for Equibolan, sold as a “legal

precursor to Boldenon,”

an anabolic steroid).

Dietary Supplement Health and Educa

tion Act of 1994, Pub. L. No. 103-417, 108 Stat.

432 (1994) (codified as amended in scattered sections

of 21 U.S.C.). Before the enactment of the

DSHEA, dietary supplements were subject to

pre-market approval

by the FDA unless they

qualified as a food or food a

dditive that was generally recognized

as safe, or claimed to affect the

“structure and function of the body” in a way that

related only to taste, aroma, or nutrition.

See

Selig & Manfred

, supra

note 56, at 38-40.

Selig & Manfred,

supra

note 56, at 41 (citing 21 U.

S.C. § 342(f)(1) (2000)).

In 1988, androstenedione became the subject of national attenti

on after a reporter

observed a container of the s

upplement in the locker of Ma

rk McGwire of the St. Louis

Cardinals during his purs

uit of the single-season home run record.

The ability to purchase the

substance over-the-counter became a subject of

intense discussion, and that off-season

Commissioner Selig and Donald Fehr

, the executive director of the Players Association, agreed

to co-sponsor a scientific study into

androstenedione’s anabolic effects.

Further developments in professional sports

also had an impact on the debate. In

August 2001, Korey Stringer, a lineman with the Mi

nnesota Vikings, died after collapsing during

the team’s summer workouts. Then in Februa

ry 2003, Baltimore Orioles pitcher Steve Bechler

died during spring training. Products containing ephedra, an amphetamine-like stimulant that

could be sold over-the-counter at the time, were

linked to both deaths. In late 2003, the FDA

moved to regulate the sale of products containing ephedra.

By the time of Bechler’s death, the

agency reportedly had been compiling data

required under the DSHEA to show ephedra’s

dangerous side effects in order to ban the subs

tance, but it had not yet completed that work.

As a result of these and other incide

nts, both Congress and the FDA increased

their scrutiny of some supplem

ents, including those, such as androstenedione, that were

See

Steve Wilstein,

Sports Spotlight: Home-Run Derb

y; ROGER THAT; Legendary

Season Grows with Every Prodigious Clout

, Houston Chron., Aug. 16, 1998, at Sports 1.

See

Benjamin Z. Leder, et al

Oral Androstenedione

Administration and Serum

Testosterone Concentrations in Young Men

, 283 JAMA 779, 782 (2000); John Fauber,

“Andro”

Pill Found to Increase Testosterone Like Anabol

ic Steroids; Supplement May Boost Muscles,

Raise Health Risks

, Milwaukee J. Sentinel, Feb. 9, 2000, at 1.

Press Release, Department of Health

& Human Services, FDA Announces Plans to

Prohibit Sales of Dietary Supplemen

ts Containing Ephedra (Dec. 30, 2003).

Press Release, Food & Drug

Administration, HHS Acts to Reduce Potential Risks of

Dietary Supplements Containing E

phedra (Feb. 28, 2003); Stephen Smith,

FDA Proposes

Warning Label for Ephedra

, Boston Globe, Mar. 1, 2003, at A1.

considered steroid precursors.

In March 2004, acting under its in

terpretation of a provision of

the DSHEA, the FDA sent warning letters to

twenty-three companies involved in selling

products that included androstenedione.

In the press release announcing this action, Secretary

of Health and Human Services Tommy Thompson

called on Congress to amend the Controlled

Substances Act to include androstenedione within

the definition of restrict

ed anabolic steroids.

Commissioner Selig and his staff were advocates for stri

cter regulation of these

substances. In congressional testimony in June

2002, Robert D. Manfred,

Jr., the executive vice

president for labor in the Comm

issioner’s Office, described the

androstenedione study that had

been sponsored by Major League Baseball and

the Players Association

and urged Congress to

revise the DSHEA to reimpose regulation on supplements like androstenedione.

In early 2004,

Selig and Manfred published an article in the

Stanford Law and Policy Review explaining the

difficulties posed under baseball’s joint drug pr

ogram (adopted effective as of September 30,

2002) as a result of the lax regulation of

supplements that were steroid precursors.

Don Fehr also expressed the Players

Association’s support for governmental

action to address the problem of legal steroid

precursors. In June

2002 congressional testimony,

See

Selig & Manfred,

supra

note 56, at 42-43 & n.44 (citing

Press Release, Department

of Health & Human Services, HHS Acts to Re

duce Potential Risks of Dietary Supplements

Containing Andro (Mar. 11, 2004)).

Id.

Press Release, Department of Health & Human Services, HHS Acts to Reduce

Potential Risks of Dietary Supplemen

ts Containing Andro (Mar. 11, 2004).

See

Steroid Use in Professional Baseball and

Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

S. Comm. on Commerce, Science and Transp., 107

Cong. 5, 8-9 (2002) (statement of Robert D.

Manfred, Jr., executive vice president for

labor relations, Major League Baseball); see also

Leder, et al

supra

note 71, at 782; John Fauber,

“Andro” pill found to increase testosterone like

anabolic steroid; supplement may boost muscles, raise health risks

, Milwaukee J. Sentinel, Feb.

9, 2000, at 1.

Selig & Manfred,

supra

note 56.

Fehr noted that these substances

legally could be purchased ove

r-the-counter and that use of

some legal supplements could result in positive

tests for steroids, a significant issue for the

Players Association in considering baseball’s

proposal at the time to implement mandatory

random drug testing for ster

oids and other substances.

In October 2004, Congress passed the An

abolic Steroid Control Act of 2004,

which amended the definition of “anabolic steroid” under the Controlled

Substances Act to

include a number of supplements considered to

be steroid precursors, including androstenedione,

but not DHEA (dehydroepiandrosterone) – another st

eroid precursor that is

closely related to

androstenedione – and granted authority to th

e Drug Enforcement Administration to add other

steroid precursors to that

definition in the future.

B. Baseball’s Drug Policies Before 2002

The problem of drug abuse by players in

Major League Baseball has received the

attention of every Commissioner of Baseball who

has served over the past four decades. In

tandem with trends in American society, percepti

ons evolved over that period regarding the type

See

Steroid Use in Professional Baseball and

Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

S. Comm. on Commerce, Science and Transp., 107

Cong. 25, 27, 29, 47 (2002) (statement of

Donald H. Fehr, executive dire

ctor, Major League Players A

ssociation). Since DSHEA was

enacted, several studies have f

ound some dietary supplements to

include anabolic steroids.

A study published in December 2007 reported that al

most 15% of 58 sample dietary supplements

contained steroids or prohormones that

were not declared on the label.

See

C. Judkins, D. Hall,

and K. Hoffman,

Investigation into Supplement Contam

ination Levels in the US Market

, HFL,

2007. This presents a problem for sports drug

testing programs because athletes who test

positive often claim that it was

the result of unknowing ingestion of contaminated dietary

supplements. The Commissioner’s

Office and the Players Association have attempted to address

this problem in several ways, including (1) th

e development of a join

t supplement certification

program, (2) development of a resource exchan

ge center to provide updated information on

supplements, and (3) continued education efforts for players.

Anabolic Steroid Control Act of

2004, Pub. L. No. 108-358, 118 Stat. 1661 (2004)

(codified at 21 U.S.C. §§ 802, 811(g)); see

Anne E. Kornblut & Duff Wilson,

How One Pill

Escaped Place on Steroid List

, N.Y. Times, Apr. 17, 2005, at A11.

of drug abuse that required attention. Since

1971, baseball has prohibi

ted the illegal use,

possession, or distribution of drugs, including the unauthorized

use of prescription drugs.

Anabolic steroids have been expressly listed am

ong baseball’s prohibite

d substances since 1991.

Until it was included in the 2002 Basic Agreement, however, this policy was not agreed to by the

Players Association, which therefore retained the

ability to challenge di

scipline decisions by the

Commissioner for violations of the policy.

Unlike prohibitions on gambling, before 2002 baseball’s drug policy was

communicated in periodic memoranda from the Co

mmissioner or his staff, and the drug policy

was never added to the Major League Rules. Ru

le 21 of the Major League Rules, which bars

gambling and similar activities, requires that it be

posted in every major le

ague clubhouse. Each

year in spring training, representatives from

the Commissioner’s Office

visit the training camps

to remind players of the rule, a

nd, in these presentations

, read the rule in

its entirety. While

many witnesses had general recoll

ections of educational programs

regarding steroids and other

drugs from recent years, few were aware that

baseball’s drug policy before 2002 expressly

prohibited the use or possession of steroids without a valid prescription.

Beginning in 2002, baseball’s drug policy was formally included in the collective

bargaining agreement. Survey testing was conducted in 2003, and mandatory random drug

testing for anabolic steroids and

other prohibited substances has be

en part of that policy since

2004. As early as 1984, however, an informal a

rrangement existed under which “reasonable

cause” testing of players who were suspected of involvement with drugs

was arranged on a case-

by-case basis through discussions between the Commissioner’s Office and the Players

Association; that arrangement was used for inci

dents of suspected steroi

d use beginning in the

summer of 2000.

The informal approach to testing was ine

ffective because it resulted in significant

advance notice to a player who was suspected of

using drugs that he would be subject to a drug

test. As a result, during ne

gotiations with the Players A

ssociation in 2002, bargaining

representatives of the owners

were insistent that a more st

ringent drug testing program be

adopted. The collectively bargained joint drug

program now includes its own procedures for

“reasonable cause” testing, in addition to

providing for mandat

ory random testing.

During the era in which the drug policy was evolving, the powers of the

Commissioner of Baseball to discipline players fo

r their involvement with drugs were also being

affected by grievance arbitrations brought by the

Players Association. An understanding of the

context for Major League Baseball’s approach

to the problem of performance enhancing

substances in the game requires some understandi

ng of the decisions in th

ose arbitrations, which

are discussed chronologicall

y, together with the drug pol

icies that led to them.

1. Bowie Kuhn and Baseball’s First Drug Policies

Baseball’s first written drug policy

was announced by Commissioner Bowie Kuhn

at the beginning of the 1971 season.

At the time, the problem of drug abuse, especially the use

See

Major League Baseball’s

Joint Drug Prevention and Treatment Program, § 3(C)

(2006).

An overview of the early efforts to eradicat

e drug use from Major League Baseball is

provided in Glenn M. Wong & Richard J. Ensor,

Major League Baseball and Drugs: Fight the

Problem or the Player?

, 11 Nova L. Rev. 779 (1987). Other ar

ticles also have addressed this

history.

See

Mark A. Rabuano, Comment,

An Examination of Drug Testing as a Mandatory

Subject of Collective Bargaini

ng in Major League Baseball

, 4 U. Pa. J. Lab. & Empl. L. 439

(2002); Edward J. Rippey,

Contractual Freedom Over Substa

nce-Related Issues in Major

League Baseball

, 1 Sports Law. J. 143 (1994);

see also

Deanna Rusch,

Major League Baseball

and Drug Testing

, 2 Willamette Sports L.J. (Spring 2005).

Notice No. 12, Memorandum from Major Leag

ue Baseball Office

of the Commissioner

to Administrative Officials of Major League

Baseball Re: Drug Education and Prevention

Program, dated Apr. 5, 1971.

of marijuana, had gained nati

onal attention, and Congress had ju

st enacted the Comprehensive

Drug Abuse Prevention and Control Act of 1970.

While focusing on prevention and treatmen

t in the first instance, baseball’s

original drug policy provided for the possibility of

discipline for failure to comply with federal

and state drug laws. Just a year earlier,

pitcher Jim Bouton had published his memoir,

Ball Four

in which he alleged that there was widespread

use of amphetamines by major league players.

The 1971 drug policy memo stated that the “

unprescribed possession

or distribution of

amphetamines or barbiturates (inc

luding ‘greenies’)” was a violation of law that could be the

basis for discipline.

The drug policy did not expressly address the

use of anabolic ster

oids. It stated,

however, that “[b]aseball must in

sist its personnel comply with fe

deral and state drug laws,” and

the policy placed responsibility on the indivi

dual to become familiar with those laws.

(Under

federal law at the time, the use of anabolic steroi

ds without a valid prescription was a violation of

the Federal Food, Drug and Cosmetic Act.

) The drug policy advised

trainers that anabolic

steroids (and certain other substances) should no

t be dispensed without

a physician’s guidance.

Pub. L. No. 91-513, 84 Stat. 1236 (1970) (codified as amended in various sections of

21 U.S.C.).

See

Jim Bouton,

Ball Four

at 81, 157, 171, 211-12 (Wiley 1990 ed.).

Notice No. 12, Memorandum from Major Leag

ue Baseball Office

of the Commissioner

to Administrative Officials of Major League

Baseball Re: Drug Education and Prevention

Program, dated Apr. 5, 1971, at 2.

Federal Food, Drug, and Cosmetic Act, c.

675, 52 Stat. 1040 (codifi

ed as amended at

21 U.S.C. § 353 (2004)).

Trainers also were instructed not

to carry syringes or

to provide injections

to players under any

circumstances.

In 1973, a Congressional subcommittee announc

ed that its staff had completed an

“in depth study into the use of illegal and dange

rous drugs in sports” including professional

baseball. The subcommittee concluded that “t

he degree of improper drug use – primarily

amphetamines and anabolic steroids – can onl

y be described as alarming.” Subcommittee

chairman Harley O. Staggers called on professional

sports leagues to adopt “stringent penalties

for illegal use, i.e., fines, suspension or

even barring for life, if warranted . . . .”

In response,

Commissioner Kuhn issued a statement announcing

that, as a result of its education and

prevention efforts, baseball had “

no significant problem” with drug use,

and he referred to recent

private comments by chairman Staggers who

reportedly “commended baseball’s drug program

as the best and most effective of its kind in sports.”

Each year from 1971 to 1985, the Commissi

oner or his representatives issued

memoranda to major league clubs reiterating

the terms of the drug prevention and education

program in substantially similar form. The me

morandum was revised in 1981 to require each

club to create an employee assistance program

and permit any employee (including any player),

under certain circumstances, to

seek confidential alcohol or drug information and treatment

Notice No. 12, Memorandum from Major Leag

ue Baseball Office

of the Commissioner

to Administrative Officials of Major League

Baseball Re: Drug Education and Prevention

Program, dated Apr. 5, 1971, at Guidelines for Trainers 2.

Press Release, Office of Congressm

an Harley O. Staggers (undated);

see

Norm Miller,

Drug Use in Sports Alarms

, N.Y. Daily News, May 12, 1973, at C22.

Press Release, Major League Baseball

Office of the Commissioner (May 18, 1973).

“without disclosure to management of this fact.”

Any employee who requested help for a drug

or alcohol dependence problem woul

d not be subject to discipline.

The Commissioner’s 1984

memorandum further noted that several clubs had

initiated their own testing programs, expressed

strong support for these efforts, and urged any

clubs considering such

a testing program to

consult with his office.

2. The Ferguson Jenkins

Decision

In 1980, future Hall of Fame member Fer

guson Jenkins, then a pitcher with the

Texas Rangers, was arrested in Canada for

possession of marijuana, hashish, and cocaine

discovered by customs officials in

an inspection of luggage on the team’s charter flight into

Toronto. In an interview by baseball officials following his arre

st, Jenkins declined to answer

certain questions on the advice of his counsel.

Commissioner Kuhn suspended Jenkins with pay because he “declined to

cooperate” with the Commissioner’s

investigation of the incident.

The Players Association

filed a grievance challenging Jenki

ns’s suspension, and in the resu

lting decision a majority of the

Memorandum from Major League Baseball Office of the Commissioner to All Major

League Club Chief Executives, General Mana

gers and Team Physicians Re: Club Drug

Education & Prevention Programs,

dated July 2, 1981, at Tab C.

Id.

Memorandum from Bowie K. Kuhn to All Major League Clubs Re: Drug Program,

dated Feb. 9, 1984, at 2.

See

Arbitration between Major League Baseball Players Ass’n and Major League

Baseball Player Relations Comm., Inc.

, Panel Decision No. 41 (Ferguson Jenkins), at 2

(Sept. 22, 1980) (“Pane

l Decision No. 41”).

Id.

at 1-2 (quoting Letter fr

om Commissioner Bowie K.

Kuhn to Ferguson Jenkins,

dated Sept. 8, 1980).

panel of arbitrators rescinded it, concluding that

the suspension had been without “just cause”

(the owner’s representative on th

e arbitration panel dissented).

The majority of the three-member arbitration panel concluded that it was unclear

whether the Commissioner had susp

ended Jenkins due to his arre

st for possession of drugs or

due to his refusal to answer the Commissioner’s

questions about the arre

st. Neither basis,

however, provided “just cause” for the suspension

, in the majority’s view. The majority

reasoned that “under controlling

principles of United

States and Canadian law – as well as

fundamental rules of fair play – Jenkins must

be presumed innocent until he is proven guilty.”

While there might be instances in which an em

ployer would have the latitude to suspend an

employee before trial – such as an arrest for a vi

olent crime or “where the

repellant nature of the

charge, and the attendant publicity, cause real

istic concerns about adverse effects on the

employer’s business” – in the majority’s view

Jenkins’s arrest for po

ssession of 1.75 ounces of

marijuana, 2.2 grams of hashish, and 3.0 grams of

cocaine was not that type of “repellant”

charge.

The majority also concluded that Jenkins

’s refusal to answer the Commissioner’s

questions could not be “just cause” for th

e suspension because “the Commissioner was

compelling Jenkins to jeopardize his defense in

court” and there was “

no compelling reason why

the investigation into Jenkins’[s] activities coul

d not have awaited the outcome of the trial.”

The Jenkins decision represented the first substantial limitation on the

Commissioner’s power to impose di

scipline on major league player

s and to compel a player to

Id.

at 12, 16-17.

Id.

at 12.

Id.

at 13.

Id.

at 16-17.

cooperate with an investigat

ion, at least when criminal charges are pending against him.

100

In his

announcement of this investigation, Commissioner

Selig alluded to the decision when he said

that “an investigation of the il

legal use of performance enhanc

ing substances by a player or

players is an extraordinarily diffi

cult undertaking. . . . Arbitrator

s have been relu

ctant to allow

compelled, potentially self-incriminating test

imony and, unlike governmental law enforcement

officials, Major League Baseball lack

s the authority to grant immunity.”

101

3. Cocaine Suspensions of 1983-84

Several further incidents in the early 1980s

involving the use, possession, and, in

one instance, assistance in dist

ribution of cocaine led to a se

ries of suspensions. While

Commissioner Kuhn’s discipline of players for

these incidents generally was upheld, in some

cases arbitrators deemed the punishment too

severe, and in one instance a suspension was

overturned based on the arbitrators’ lack of confidence in the le

gal system of another country.

In 1983, four players with the Kansas City Royals were arrested on cocaine-

related charges. Three of those players, Willie

Aikens, Jerry Martin, and Willie Wilson, pleaded

guilty to misdemeanor possession charges and were each sentenced to a fine and one-year

100

Although the Players Association was form

ed in 1954, the first collective bargaining

agreement in Major League Baseball was

not entered into until 1968. Baseball was not

recognized to be within the jurisdiction of

the National Labor Relations Board until 1969.

See

American League of Prof’l Baseball Clubs, et al.

, 180 N.L.R.B. 190, 192 (1969);

see generally

Rabuano, supra

note 82, at 440-41. The grievance and ar

bitration procedures were changed

substantially in 1970, resulting in the basic tripar

tite arbitration panel that remains in effect

today.

See

Wong & Ensor,

supra

note 82, at 782; Doug Pappas,

A Contentious History:

Baseball’s Labor Fights

, espn.com, Sept. 5, 2002.

101

See, e.g.,

Press Release, Major League Baseba

ll Office of th

e Commissioner,

Statement of Commissioner Allan H.

Selig (dated Mar. 30, 2006).

Jenkins later was convicted of

the charges in an Ontario court. The court

expunged the charges immediately. Jenkins and

Commissioner Kuhn agreed to a re

solution under which Jenkins issu

ed a public apology, agreed

to participate in educ

ational programs, and agreed to dona

te $10,000 to a “suitable program for

young people.” Joseph Durso,

Jenkins, Kuhn Reach Accord in Drug Case

, N.Y. Times, Feb. 7,

1981, at B29.

imprisonment (with all but three mont

hs of those sentences suspended).

102

In December 1983,

Commissioner Kuhn suspended the th

ree players for a year without pay, although he said that the

suspensions would be reviewed on May 15, 1984 “with

a view to their reinstatement” if then

warranted in the Commissioner’s judgment. He

also required the players to submit to drug

testing during their probations.

103

Following a Players Associati

on grievance filed on behalf of

Martin and Wilson, the arbitrator

s recognized that “[t]

raditional notions of

industrial discipline

support the conclusion that an employer may re

spond to drug-related misconduct with severe

measures,” and concluded that “just cause” ex

isted for a suspension. However, the panel

concluded, any suspension beyond May 15, 1984 was “t

oo severe to be squared with the just-

cause requirement.”

104

A fourth Royals player, pitcher Vida

Blue, also was convicted, imprisoned, and

fined in the Kansas City incident. Kuhn’s su

spension of him for the 1984 season, followed by a

two-year probationary period

that included mandatory drug

testing, was later upheld in

102

See

Arbitration between Comm’r of Baseba

ll and Major League Baseball Players

Ass’n

, Panel Decision No. 54 (Willie Wilson and Jerry

Martin), at 1-2 (Apr. 3, 1984) (“Panel

Decision No. 54”);

Arbitration between Major League Baseball Player Relations Comm., Inc.

and Major League Baseball Players Ass’n

, Panel Decision No. 61 (Vid

a Blue), at 1-2 (July 24,

1984) (“Panel Decision No. 61”);

see generally

Memorandum from Barry Rona to Rep. Charles

B. Rangel Re: Major League Baseball’s Response to Drug-Related Misconduct by Players, dated

June 13, 1989 (“Rona Memo”), at 5; Wong & Ensor,

supra

note 82, at 785.

103

Panel Decision No. 54, at 2-3;

see

Wong & Ensor,

supra note 82, at 785. Los Angeles

Dodgers pitcher Steve Howe received the same

suspension. Howe was a repeat offender who

failed two separate drug tests for cocaine during

the 1983 season which were administered by the

Dodgers under the club’s agreement with Howe fo

llowing his treatment for cocaine abuse in a

rehabilitation program. Wong & Ensor,

supra

note 82, at 785.

104

See

Panel Decision No. 54, at 5, 10-11. A gr

ievance also was filed on behalf of

Howe, but that matter was settled before

an arbitration decision. Wong & Ensor,

supra

note 82,

at 787.

arbitration, in part based on Blue’s alleged involvement in assi

sting other players to procure

drugs.

105

In a separate arbitration decision issued

in April 1984, the arb

itrators overturned a

one-month suspension of Atlanta Braves pitche

r Pascual Perez that had been imposed by

Commissioner Kuhn after Perez was released

from a three-month imprisonment in the

Dominican Republic for possession of

cocaine. The panel noted the gravity of the charge for

which Perez had been convicted,

and recognized that drug involvement by a major league player

was “not only contrary to estab

lished rules and provisions of th

e Uniform Players Contract, but

also constitutes a ‘serious and im

mediate threat to the business th

at is promoted as our National

Pastime.’”

106

However, the arbitrators questioned wh

ether a conviction in the courts of the

Dominican Republic amounted to “persuasive”

evidence of his guilt, based on a troubling

recitation of the facts surrounding hi

s coercive interrogation by poli

ce officers at the time of his

arrest.

107

These decisions make clear the authority of

arbitrators to review and revise the

severity of discipline imposed by the Commi

ssioner using his “just cause” powers for drug

violations. All of the decisions

concerned drugs of abuse, prin

cipally cocaine, rather than

performance enhancing substances

such as anabolic steroids. Th

e use of the drugs at issue in

these decisions did not assist pl

ayers to gain an unfair competi

tive advantage. Nevertheless,

these and other decisions have affected the

decisions of the Commissioner’s Office and the

105

Panel Decision No. 61, at 3;

see

Wong & Ensor,

supra

note 82, at 789-90.

106

See

Arbitration between Major League Ba

seball Players Ass’n and Comm’r of

Baseball

, Panel Decision No. 58 (Pascual Perez),

at 2 (Apr. 27, 1984) (quoting Panel Decision

No. 54, at 8).

107

Id.

at 3-7;

see

Rona Memo. at 8.

Players Association when reacting to more rece

nt incidents concerning

a player’s involvement

with performance enhancing substances.

108

4. The 1984 Joint Drug Program

As his term neared its end, Commissione

r Kuhn pressed for stronger regulation of

drug use in baseball. Opinions were divide

d among the owners of the major league clubs,

however, over whether to require mandatory random

drug testing as part of such a program. The

Players Association opposed mandatory random test

ing as “degrading” to players and a violation

of their privacy, according to a report of statements by Don Fehr, who was at the time its acting

executive director.

109

In June 1984, the owners (through their Player Relations Committee) and the

Players Association agreed to a joint program that provided for treatment of players who were

found to use, or who had admitted using, certain

drugs of abuse. Steroids and amphetamines

were not on the schedule of prohibited substances. The program provided for drug testing of

players who admitted drug use, and for players fo

r whom there was “reason to believe” that they

were using drugs. “Reason to believe” testing was permitted if a three-member panel

unanimously determined that testing was

warranted. There was no punishment under the

program for failed drug tests, but

players could be subjected to

discipline if they failed to

108

In another arbitration decision handed dow

n during the tenure of Commissioner Peter

V. Ueberroth, arbitrators reduced Ueberroth’s on

e-year suspension of San Diego Padres pitcher

LaMarr Hoyt to sixty days based on Hoyt’s arre

st for transporting hundreds of pills of valium

and propoxyphene, a muscle-relaxant/pain k

iller, across the border from Mexico.

See

Arbitration between Major League

Baseball Players Ass’n and San Diego Padres Baseball Club

and Comm’r of Baseball

, Panel Decision No. 74 (LaMarr Hoyt), at 1-3, 45 (June 16, 1987).

Among other things, the arbitrati

on panel reasoned that the incide

nt did not involve cocaine, but

instead valium, which the arbitrat

ors reasoned was “illegal only, as

in this case, when it is

obtained without a prescription.”

Id.

at 26, 35.

109

See

George Vecsey,

Owners Split Over Testing

, N.Y. Times, May 27, 1984, at E4. As

noted above, this discussion concerned drugs of

abuse, such as cocaine, not performance

enhancing substances.

cooperate under the program, provided that any su

ch discipline would be subject to the Players

Association’s right to file a

grievance and pursue arbitration

over whether it was supported by

“just cause.”

110

In agreeing to the 1984 joint program, th

e Players Association opposed mandatory

random testing. In a letter to the Player Rela

tions Committee, Fehr expl

ained that the Players

Association was “skeptical of the value of such testing . . . and is concerned about infringement

of constitutional rights, and rights of privacy, et

c., in any program of mandatory testing.” He

also asserted that under applicable law the clubs

were not permitted to require players to submit

to urine or other testing

as a condition of employment.

111

In the memorandum of understanding

setting forth the terms of the joint program,

the Players Association

recited its views about

testing:

The Players Association does not object

, in principle, to individual,

voluntary testing, on a case by case ba

sis, provided that a player's

agreement to any such test is truly voluntary, and that such agreement is

not secured through coercion or pressure of any sort, and the

confidentiality and integrity of the te

sting process can be assured . . . .

112

The Players Association reiterated it

s opposition to mandatory drug testing soon

thereafter. Two clubs, the Los Angeles Dodgers

and the San Francisco Giants, attempted to

require drug testing as a term of new player

contracts. Negotiations toward a new collective

bargaining agreement were suspended until the tw

o clubs withdrew that

request and all of the

110

Memorandum of Agreement between 26 Ma

jor League Clubs and the Major League

Baseball Players Association, dated May 24, 1984; Le

tter from Donald M. Fehr to Leland S.

MacPhail, dated May 24, 1984.

111

Letter from Donald M. Fehr to

Leland S. MacPhail, dated May 24, 1984.

112

Memorandum of Agreement between 26 Ma

jor League Clubs and the Major League

Baseball Players Association, dated May 24, 1984, at 3.

clubs agreed that the joint drug program, without

mandatory testing, would take the place of any

such unilateral contract provision.

113

The joint program was criticized by some as insufficiently rigorous, and in any

event it was largely ignored. The program wa

s terminated by the owners in October 1985, by

which time only three players had submitted to

its treatment and rehabilitation provisions.

114

While few players were subjecte

d to “reason to believe” drug te

sting under the joint program, it

served as a precedent for the “reasonable cause” te

sting that was in effect informally thereafter

until the 2002 Basic Agreement added a mandatory random drug testing program to the

collective bargaining agreement.

115

5. Drug Policies Under Peter Ueberroth

In October 1984, Peter V. Ueberroth su

cceeded Bowie Kuhn as Commissioner of

Baseball. Even before he began in that pos

ition, Ueberroth acknowledged that one of his

primary responsibilities as the new Commissioner

would be to address the problem of drug use

in baseball, and today he recalls

accepting the position specifically to address that issue as well

as baseball’s challenging economic conditions.

To Ueberroth, however, the use of anabolic

steroids or similar substances was “not

really on the radar” at that time.

In Ueberroth’s first full year as Comm

issioner, 1985, the “Pittsburgh drug trials”

occurred, in which a number of major league play

ers testified in criminal cases against Curtis

113

Wong & Ensor,

supra

note 82, at 793 (citing Murray Chass,

Baseball Settles Drug

Issue

, N.Y. Times, Jan. 30, 1985, at A16).

114

See

Memorandum from Jennifer R. Gefsky to

Robert D. Manfred, Jr. Re: 1984 Joint

Drug Agreement, dated Mar. 24, 2005, at 2.

115

See

Letter from Donald M. Fehr to Sen. George J, Mitchell dated Nov. 30, 2007;

see

also

Rona Memo. at 9.

Strong and Robert McCue, who were char

ged with selling co

caine to players.

116

In their

testimony, several players admitted using cocaine and implicated other players. The

Commissioner interviewed each of the player

witnesses and other players who were named

during the trials, and some we

re subjected to discipline.

117

In May 1985, Commissioner Ueberroth es

tablished a mandatory drug testing

program covering all employees in the major a

nd minor leagues, including umpires and minor

league players. The program tested for drugs

of abuse and amphetamines but did not test for

steroids or other performance enhancing substances. Initial positive tests were to be met with

treatment rather than discipline.

118

The May 1985 drug testing program did not

include major league players,

however. Ueberroth urged that mandatory drug

testing be added to the joint drug program,

which was still in effect at that time.

119

He recalled that the Players Association would not

116

See

Associated Press,

Conviction in Drug Trial

, Sept. 27, 1985.

117

According to Ueberroth, no evidence emerge

d during these interviews relating to the

use of anabolic steroids or similar substances

. The Commissioner suspended for a year those

players who had engaged in a prolonged pattern

of drug use and had facilitated drug sales to

other players. Players for whom evidence showed some drug use but no involvement in drug

distribution were suspended for

sixty days. Finally, no discipline was imposed on players for

whom there was little or no evidence of drug use.

All of the players were

subject to follow-up

drug testing, and the players who were susp

ended could avoid suspension by performing

community service and donating a portion of th

eir 1986 salaries to a drug abuse prevention

program. Rona Memo at 6;

see also

Wong & Ensor,

supra

note 82, at 798-804. Eventually,

21 players were disciplined.

See

Murray Chass,

Hernandez and Berra Consider Stances on

Ruling

, N.Y. Times, Mar. 1, 1986, at Sports 7.

118

See

Memorandum from Peter V. Ueberroth to

All Major League Clubs Re: Baseball’s

Drug Education and Prevention Program, dated

June 18, 1985; Telex from the Commissioner’s

Office to Distribution List Re: Baseball Drug

Education & Prevention Program, dated May 14,

1985.

119

Press Release, Major League Baseball

Office of the Commissioner, Ueberroth

Institutes Drug Testing for Baseball Personnel,

and Urges It Be Included in Joint Drug

Agreement with Players (May 7, 1985); Letter from

Peter V. Ueberroth to Donald M. Fehr and

Leland S. MacPhail, dated May 7, 1985.

consider such a program and rejected his pr

oposed compromise for a program under which only

the Players Association would s

ee the results of drug tests.

After his initial discussions with the

Players Association failed, Ueberroth

appealed directly to major league players, urgi

ng them to volunteer for

confidential testing under

the program with no th

reat of punishment.

120

Days later, the Commissioner announced an

“overwhelming” consensus among players in fa

vor of drug testing; his statement quoted

New York Mets manager Davey Johnson as havi

ng said that he “took a team vote which came

out 100 percent in favor of testing.”

121

The Players Association

disputed the claims of

overwhelming support from players and objected to

the Commissioner making an appeal directly

to them.

122

In a 2002 interview, Marvin Miller, form

er executive director of the Players

Association recalled the events:

. . . one day in 1985 Ueberroth astonished Don Fehr and myself by going

on television during a national teleca

st and announc[ing] that he was

voiding the existing drug program b

ecause it didn’t have mandatory

testing. Don Fehr told him, in essence, to go to hell.

Incredibly, in 1986 he tried agai

n. Without even bothering to

consult the union, he sent a letter to

every major league player urging them

to submit to voluntary drug tests. Th

e test results, he said, would be

‘totally confidential’ – and free of pe

nalties – which made us wonder what

120

Memorandum from Peter V. Ueberroth to

All Major League Players, dated Sept. 23,

1985. The Commissioner’s Office publicly announced

the issuance of the

memorandum the next

day.

See

Press Release, Major League Baseball Of

fice of the Commissioner, Ueberroth Asks

Players to Rid Baseball

of Drugs (Sept. 24, 1985).

121

Press Release, Major League Baseball Office of the Commissioner, Players Against

Drug Us (Sept. 26, 1985). A letter from the Commi

ssioner to Don Fehr that day made the same

points and urged Fehr to work with the Play

er Relations Committee to develop the testing

program.

See

Letter from Peter V. Ueberroth to

Donald M. Fehr, dated Sept. 26, 1985.

122

Letters from Donald M. Fehr to Peter V. Ueberroth, dated Sept. 26, 1985.

he hoped to gain. Don suggested to th

e players that they simply toss the

commissioner’s letter in the garbage.

123

During the 1985-86 off-season, the owners

tried a different approach to

implementing drug testing. Clause

s were included in the contra

cts of approximately 550 players

that would have required players who signed the

contracts to submit to

drug testing upon their

club’s request. The Players Associ

ation filed a grievance, in whic

h it asserted that the provisions

violated the Basic Agreement and that drug te

sting was a mandatory subject of collective

bargaining that could not be implemented unilatera

lly through individual

player contracts.

The owners’ representative countered that

the collective barg

aining agreement did

not speak to drug testing and that the provisi

on benefited players by “permitting [them] to

publicly disassociate [themselves] from the specter

of drugs.” The arbitrators disagreed with that

argument, and they struck down the contract pr

ovisions on the ground that they violated the

Basic Agreement. The panel did not reach the

question of whether drug testing was a mandatory

subject of collective bargaining.

124

In April 1986, Commissioner Ueberroth ag

ain reached out to players directly,

urging them to support a drug te

sting program and proposing that

testing be implemented only

for the next two seasons.

125

The Players Association critici

zed Ueberroth again for contacting

123

See

Allen Barra,

Marvin Miller: Don’t Trust

Baseball’s Drug-Testing Proposal

salon.com, June 20, 2002. Miller continued: “When

they finally got together, Ueberroth asked

Fehr if the union would agree to testing ‘even if it

was just for the sake of

public relations.’ Don

told me his jaw dropped; when he told me, mine dropped.”

Id.

124

See Arbitration between Major League Ba

seball Player Relations Comm. and Major

League Baseball Players Ass’n

, Panel Decision No. 69, at 5-6, 8,

(July 30, 1986). At the time,

that issue had not been resolved as a matter

of federal labor law,

but in other cases soon

thereafter the National Labor Relations Boar

d concluded that workplace drug testing was a

mandatory subject of collective bargaining.

See Johnson-Bateman Co.

, 295 N.L.R.B. 180

(1989);

Star Tribune

, 295 N.L.R.B. 543 (1989);

see

Rabuano,

supra

note 82, at 453; Rippey,

supra

note 82, at 146 n.18.

125

Memorandum from Peter V. Ueberrot

h to All Players, dated Apr. 4, 1986.

players directly and “exhorting” th

em to support the testing plan.

126

No agreement was reached

with regard to mandatory drug tes

ting of players in Major League Baseball then or for the next

sixteen years.

While the drug policy always had required

clubs to report evid

ence of a player’s

drug use to the Commissioner’s O

ffice, beginning in November 1986, baseball’s drug policy was

amended to provide for a fine of up to $250,000 upon any club that failed to make such a

report.

127

This reporting requirement was included in

every subsequent iteration of the drug

policy,

128

and since 2002, the potential fine for a club’s failure to report evidence of drug use has

been $2,000,000, the maximum fine that the Co

mmissioner may impose on a club under the

Major League Constitution.

129

When I interviewed them in the course

of this investigati

on, Commissioner Selig

and Bob DuPuy, the current president and chief

operating officer of Major League Baseball,

confirmed that there has been no instance in whic

h a fine for such a failure to report has been

levied against any club.

126

Letter from Donald M. Fehr to

Peter V. Ueberroth, dated Apr. 7, 1986.

127

Memorandum from Peter V. Ueberroth to

All Major League Clubs Re: Baseball’s

Drug Abuse Program, dated Nov. 26, 1986, at 3.

128

See

Memorandum from Edwin M. Durso to All Major League Clubs Re: Baseball’s

Drug Abuse Program, dated Mar. 1, 1988, at 3; Memo

randum from A. Bartlett Giamatti to All

Major League Clubs Re: Baseball’s Drug Us

e Policy and Drug Use Program, dated Apr. 19,

1989, at 3; Memorandum from Franci

s T. Vincent, Jr. to All Major League Clubs Re: Baseball’s

Drug Use Policy and Drug Use Program, dated Ap

r. 17, 1990, at 3; Memorandum from Francis

T. Vincent, Jr. to All Major League Clubs Re

: Baseball’s Drug Policy and Prevention Program,

dated June 7, 1991, at 2.

129

See

Memorandum from Allan H. “Bud” Selig

to All Major League Clubs, etc. Re:

Baseball’s Drug Policy and Preventi

on Program, dated Apr. 12, 2002, at 3.

6. 1991: Fay Vincent Adds Steroi

ds to Baseball’s Drug Policy

In September 1989, Francis T. (“Fay”) Vincen

t was elected to succeed A. Bartlett

Giamatti as Commissioner, after Giamatti’s sudd

en death. Vincent was the first Commissioner

to expressly include anabolic

steroids among the substances pr

ohibited under baseball’s drug

policy, which he did in the June

1991 version of the memorandum.

130

Steroids were added to the

drug policy at that time, apparently as a result of

the enactment of the Anabolic Steroids Control

Act of 1990. Under that statute, anabolic ster

oids had been reclassi

fied as Schedule III

controlled substances, and the i

llegal use of them became subject

to substantially increased

criminal penalties.

131

In July 1992, Vincent suspended New Yo

rk Yankees pitcher Steve Howe from

baseball for life based on his re

peated use of cocaine in viola

tion of baseball’s drug policy. The

Players Association successfully overturned this

order in a grievance that was decided by the

arbitrators after Vincent resigned

as Commissioner later that year. The arbitrators concluded that

the lifetime ban was without just cause and lim

ited the suspension to th

e remainder of the 1992

season.

132

In dissent, management’s representati

ve on the panel, Vincent’s deputy Stephen

130

See

Memorandum from Francis T. Vincent, Jr. to All Major League Clubs Re:

Baseball’s Drug Policy and Prevention

Program, dated June 7, 1991, at 2.

131

Anabolic Steroids Control Act of

1990, Pub. L. No. 101-647, 104 Stat. 4789 (1990).

Although the 1991 drug policy expressly mentioned anabolic steroids as prohibited substances

for the first time, the Commissione

r’s Office viewed steroids to

be covered by baseball’s drug

policy before then because of the policy’s prohi

bition on the use of prescription drugs without a

prescription.

See

Ken Rodriguez and Jorge Ortiz,

Canseco Denies Using Steroids

, Miami

Herald, Sept. 30, 1988, at D1 (quoting spokesman Ji

m Small that “[a]nabolic steroids and other

performance-enhancing drugs are prohibi

ted by Major League Baseball.”).

132

See

Arbitration between Major League Base

ball Players Ass’n and Comm’r of Major

League Baseball

, Panel Decision No. 95 (S

teven Howe) (Nov. 19, 1992).

Greenberg, called the majority’s

decision an example of why “bas

eball desperately need[ed] a

collectively bargained drug agreement

between the clubs and the players.”

133

7. Baseball’s Drug Policies Under Bud Selig

In May 1997, then-acting Commissioner

Allan H. (“Bud”) Selig reissued

baseball’s drug policy in a memorandum that

was substantially uncha

nged from the 1991 policy

memo that had been issued by Commissioner Vincent.

134

The policy was issued again by

Commissioner Selig in memoranda

in March 2001 and April 2002.

135

In addition, beginning in

2002, even after the drug policy was incorporated

into the Basic Agreement, Commissioner Selig

issued annual memoranda reiterating the drug polic

y as it applied to all

non-playing personnel in

Major League Baseball, including the possibility of unannounced drug tests for all such

personnel.

136

During his tenure, Selig also unilatera

lly implemented drug testing in the minor

133

Id.

, dissent, at 1;

see

Murray Chass,

A Biting Dissent on Howe Decision

, N.Y. Times,

Nov. 20, 1992, at B12.

134

See

Memorandum from Bud Selig, chairman

of the Executive Council of Major

League Baseball, to All Major League Clubs,

etc. Re: Baseball’s Drug Policy and Prevention

Program, dated May 15, 1997.

135

See

Memorandum from Allan H. “Bud” Se

lig to All Major League Clubs Re:

Baseball’s Drug Policy and Prevention Program

, dated Apr. 12, 2002; Memorandum from Allan

H. “Bud” Selig to All Major League Clubs Re:

Baseball’s Drug Policy and Prevention Program,

dated Mar. 21, 2001.

136

See

Memorandum from Commissioner Allan H.

“Bud” Selig to

All Major League

Clubs, etc. Re: Baseball’s Drug Policy a

nd Prevention Program, dated Apr. 15, 2003;

Memorandum from Allan H. “Bud” Selig, Chairm

an of the Executive Council of Major League

Baseball, to All Major League

Clubs, etc. Re: Baseball’s Drug

Policy and Prevention Program,

dated Mar. 15, 2005; Memorandum

from Allan H. “Bud” Selig, Chairman of the Executive

Council of Major League Baseball, to All Major League Clubs, et

c. Re: Baseball’s Drug Policy

and Prevention Program, dated Mar. 2, 2005; Memorandum from Allan H. “Bud” Selig,

Chairman of the Executive Council of Major League

Baseball, to All Major League Clubs, etc.

Re: Baseball’s Drug Policy and

Prevention Program Apr. 13, 2006.

leagues in 2001 and obtained the

agreement of both the Players Association, in 2002, and the

umpires association, in 2004, to drug treatment and testing programs.

137

In early 1994, Selig and the owners pr

oposed that a joint drug program be

included in baseball’s collectiv

e bargaining agreement. That

1994 proposal would have included

steroids among baseball’s prohibited substances and, as with

the 1984 joint program, provided

for testing of players for whom there was “reason

able cause” to believe drug use was occurring.

The proposal did not provide for mandatory random drug testing, but it

did include a provision

for drug screening tests as part of every playe

r’s physical examination during spring training.

Under the proposal, as had been the case under th

e 1984 joint program, first offenders would not

be subject to discipline provided that they agreed to enter a co

unseling and treatment program.

Unlike the 1984 program, however, a second offens

e would carry a sixty-

day suspension without

pay, with third and fourth offenses carrying pe

nalties of a one-year su

spension and a lifetime

ban, respectively.

138

The Players Association rejected the pr

oposal, and it was not pursued any further

by the owners. Later that year, after the owners and the Players Association were unable to

come to agreement on other significant economic

issues, a work stoppage resulted in the early

end to the 1994 season and the can

cellation of the post-season a

nd World Series. A shortened

1995 season was played without a collective bargaining agreement in place. When bargaining

resumed, resolution of the economic issues that ha

d led to the stoppage of

play took priority, and

the owners did not revive the proposal to implement a new joint drug policy.

Officials of the Players Association said th

at the clubs did not appear to regard the

1994 proposal as a high priority

and did not pursue its adoption

vigorously. Indeed, Don Fehr

137

See

Major League Baseball’s Umpire

Drug and Alcohol Testing Program.

138

See

Prevention of Drug Use and Dist

ribution (“1994 Proposal on Drugs”).

recalled that the proposal never ev

en reached the main bargaining table during negotiations. At

one general session, Fehr inquired about a

media report regarding such a proposal.

Subsequently, the proposal was presented and discussed only at two subcommittee sessions that

occurred in late July and ear

ly August 1994. The subject was not

raised again

after the August

1994 strike began.

Rob Manfred, baseball’s current chief labor

negotiator, recalled that anabolic

steroids were included in the

1994 proposal to be proactive, and

the decision to include steroids

in the proposal was not based on any particular

concern about the use of those substances in

baseball at that time. He acknowledged that

at the time the drug program was not as high a

priority as economic issues.

8. 2001 Minor League Drug Prev

ention and Treatment Program

The next round of collective bargai

ning would not occur until 2002. As

awareness of the problem grew after the repo

rted discovery of androstenedione in Mark

McGwire’s locker, in August 1998,

the Commissioner’s Office took a

number of steps to lay the

foundation for bargaining toward a joint drug

program during 2002 negotiations. Those steps

included an effort to improve re

gulation of dietary supplements

and the introduction of a steroid

education program.

Then, in June 2001, Commissioner Selig uni

laterally implemented a drug testing

program in baseball’s affiliated minor leagues.

139

Under the program, minor league players were

prohibited from using, selling, or distributing drugs

of abuse or anabolic steroids. The program

prohibited all Schedule III steroids and certain

other substances (inc

luding clenbuterol, a non-

anabolic veterinary medication that

some athletes abuse in an effo

rt to become leaner), but it did

139

See

Major League Baseball’s Minor League

Drug Prevention and Treatment Program

(2001).

not include some supplements with

anabolic effects that were

then legal for over-the-counter

sale, including androstenedione and DHEA.

The program applied to all minor league

players who were not members of the

Players Association bargaining unit (that is, play

ers who were not on the 40-man roster of any

major league club). The Commi

ssioner could impose drug testing uni

laterally as to minor league

players because they were not members of the

Players Association and

thus not parties to a

collective bargaining agreement.

The program implemented a syst

em of random urine testing for

prohibited substances, subjecting each player to

up to three random tests per year in addition to

any “reasonable cause” testing that might be

justified in the case of any player.

The minor league program has continued to

the present, with refinements in the

list of prohibited substances, the

number of random tests, testi

ng procedures, and the penalties

applicable for failed tests. Alt

hough the initial revision of the pr

ogram was to lower the penalties

that could result from failed drug tests, since

August 2005 the penalties for failing a test for use

of a prohibited performance enhancing substanc

e under that program have been the same as

those in place in Major League Baseball, which ar

e discussed in more detail below: a suspension

of 50 games for the first failed test; a suspension of 100 games for the second failed test; and

permanent suspension from baseball for a third failed test.

140

Human growth hormone and

androstenedione both were added to the minor

league prohibited substance list for 2002, years

140

See

Memorandum from Jennifer R. Gefsky

to All Minor League Clubs Re: 2006

Minor League Drug Program, dated Aug. 25, 2005;

Memorandum from Commissioner Selig to

All General Managers, Farm Directors, Club P

hysicians and Employee Assistance Professionals,

Re: Minor League Drug and Ster

oid Testing, dated Jan. 2, 2002.

earlier than either of these substances was

added to the prohibited list under the collective

bargaining agreement for Major League Baseball.

141

Two rounds of in-season testing were c

onducted on minor league players during

2001, resulting in positive tests for steroids in

439 of 4,850 tests (9.1%). Players who tested

positive were not subject to discipline initia

lly but instead were provided treatment and

counseling. In 2002, there were 4,719 tests of minor league players, resulting in 227 positive

tests for steroids (4.8% of total tests); 20 play

ers were suspended (wit

hout public notice) even

though in 2002, first-time positive te

sts resulted in treatment rath

er than discipline. In 2003,

a total of 4,772 tests resulted in 173 positives for

steroids (4% of total tests); 20 players were

suspended (without public notice).

142

In 2004, 4,801 total tests we

re conducted, resulting in

78 positive tests for “performance enhancing substances” (1.7% of total tests), and

78 suspensions, including 13 suspensions for second-

time offenders. For the first time, players

were subject to suspensions for first-time positive tests.

143

In 2005, a total of 5,961 in-season

tests resulted in 106 positive tests for performance

enhancing substances (1.78% of total tests)

and 106 player suspensions.

144

In 2006, 6,433 total tests resulted in 23 positives (0.36% of total

tests) and 23 suspensions.

145

141

See

Memorandum from Commissioner Seli

g to All General Managers, Farm

Directors, Club Physicians and Employee Assist

ance Professionals Re: Minor League Drug and

Steroid Testing, dated Jan. 2, 2002.

142

See

Letter from Robert D. Manfred, Jr. to

Sen. George J. Mitc

hell, dated Mar. 28,

2007, at 11-12; Letter from Robert D. Manfred, Jr.

to Rep. F. James Sensenbrenner, Jr. and Rep.

John Conyers, Jr., dated June 20, 2005, Attachment 1.

143

See

Letter from Robert D. Manfred, Jr. to

Sen. George J. Mitc

hell, dated Mar. 28,

2007, at 11-12; Letter from Robert D. Manfred, Jr.

to Rep. F. James Sensenbrenner, Jr. and Rep.

John Conyers, Jr., dated June 20, 2005, at 7.

144

See

Letter from Robert D. Manfred, Jr. to

Sen. George J. Mitc

hell, dated Mar. 28,

2007, at 11-12. The Commissioner’s Office also pr

oduced data for testing in the Dominican

Summer League in 2004 (97 positives out of

894 tests, an 11% pos

itive rate) and 2005

C. Informal Reasonable Cause Testing

From the mid-1980s until the 2002 Basic Ag

reement, an informal and unwritten

agreement existed between the Commissioner’s Offi

ce and the Players Association that provided

for a player to be subjected to testing for use of

drugs such as cocaine or marijuana when there

was a “reasonable suspicion” of the player’s use

of such drugs. Beginning with an incident in

the summer of 2000, this informal understanding

was expanded to provide

for the possibility of

“reasonable cause” testing based on evidence of a

player’s involvement with anabolic steroids.

No document memorializes the terms of

the “reasonable cause” testing program,

although the Commissioner’s Office ma

de an unsuccessful effort to document it with the Players

Association in 1999. Don Fehr, th

e executive director of the Play

ers Association, said that the

program essentially followed the terms of the “reas

on to believe” testing that had been agreed to

in the 1984 joint drug program in that it contem

plated a determination of reasonable cause

related to the specific individual tested.

“Reasonable cause” testing for steroids was conducted on over 25 major league

players between 2000 and 2006, but we were informed that no documents exist with respect to

such testing. No player ever tested positive fo

r steroids or for any other performance enhancing

substance as a result of those tests.

The informal understanding was reached

long before Rob Manfred joined the

Commissioner’s Office. He viewed it as a “hat

in hand program, it was whatever we could get

out of Gene Orza” (associate general counsel

and chief operating officer of the Players

(90 positives out of 1,206 tests, a 7% positive rate

), and 2005 testing in the Venezuelan Summer

League (23 positives out of 272 tests, an 8.4% po

sitive rate). Memorandum from Jennifer R.

Gefsky to Robert D. Manfred, Jr

., et al., dated Oct. 15, 2004 at 3;

Memorandum from Jennifer R.

Gefsky to Robert D. Manfred, Jr

., dated Sept. 30, 2005, at 2-3.

145

See

Letter from Robert D. Manfred, Jr. to

Sen. George J. Mitc

hell, dated Mar. 28,

2007, at 11-12 .

Association). Commissioner Selig also critici

zed the program because

it provided for testing

only if the Players Association agr

eed to it in a specific case.

Under the program, when evidence of a play

er’s possible use of

steroids came to

the attention of the Commissioner’s Office, Manfre

d contacted Orza and reque

sted that testing of

that player be conducted. Those negotiations invari

ably lasted at least se

veral weeks. In those

instances in which the Players Association agreed

to such testing it occurred only subject to the

understanding that: (1) the

fact of the testing was to be kept

strictly confidentia

l; (2) there would

be no discipline for a first posit

ive test; and (3) the Commissione

r’s Office would agree to forego

any investigatory interview of

the player (medical evaluations by a physician were allowed).

Soon after the first incident in which this

approach to “reasonable cause” testing

was used, Manfred realized that the process wa

s unworkable because it provided a player under

suspicion with so much notice of the possibility th

at he would be tested that he could eliminate

any prohibited substance from his system. It is

therefore not surprising

that none of the more

than 25 players who were subjected to “reasonable cause” testing for steroids tested positive.

Manfred concluded that s

eeking the agreement of the Players

Association to revise the process

before the 2002 negotiations was not worthwhile

because it would distract from Commissioner

Selig’s top priority in this area – a collec

tively bargained, mandatory random drug testing

program. Manfred also believed that the principal trade-off for the “reasonable cause” testing

program – foregoing player interviews in cases

where there were grounds for suspicion – was not

detrimental. In Manfred’s view, “[i]ntervi

ewing players is not a

productive exercise.”

Because of the strict confid

entiality of the program, only

a few officials of either

the Players Association or the

Commissioner’s Office even knew of

its existence. Commissioner

Selig was not informed of the results of a

ny test conducted under the informal program.

Likewise, his director of securi

ty, Kevin Hallinan, was unaware of

the testing in many instances

until he learned of it thr

ough this investigation.

In congressional testimony in June 2002, Don Fehr acknowledged the existence of

the program, referring a Senate

subcommittee to a 2001 brochur

e prepared jointly by Major

League Baseball and the Players Associ

ation that alluded to the program.

146

At the same

hearing, however, Manfred denied that anything

approaching a formal

program was in place,

testifying that:

Contrary to the impression created by

Mr. Fehr’s written

statement, we do

not have an agreed upon steroid polic

y in Major League Baseball. The

Commissioner has unilaterally promulga

ted a policy on steroids that the

union has consistently said is not bind

ing on the players. While we have

worked together in certain situations

the current regulation is ad hoc at

best, and dysfunctional at worst. To

address this problem, we made a

comprehensive proposal on steroids

to the Players Association last

March.

147

In March 2005 congressional hearings, Manfred testified that in the summer of

2000 Boston Red Sox infielder Manny Alexander wa

s subjected to “reasonable cause” testing

after Massachusetts state police discovered an

abolic steroids and syringes in the glove

compartment of his car, which he

had loaned to a clubhouse attendant.

148

As discussed in the

146

Steroid Use in Professional Baseball and

Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

Comm. on Commerce, Science and Transp., 107

Cong. 10 (2002);

see

Major League

Baseball Players Association in Conj

unction with Major League Baseball,

Steroids and

Nutritional Supplements

, June 2001, at 2.

147

Steroid Use in Professional Baseball and

Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

Comm. on Commerce, Science and Transp., 107

Cong. 7 (2002).

148

See

Restoring Faith in America’s Pastime:

Evaluating Major League Baseball’s

Efforts to Eradicate Steroid Use: Hear

ing Before the H. Comm. on Gov’t Reform, 109

Cong.

335 (2005). Manfred told us that his disclosu

re of the testing of Alexander was “not

appropriate” and that the Player

s Association criticized him fo

r disclosing it in response to

congressional questioning.

following sections of this report, we learned of

a number of other inst

ances in which players

were tested, all with negative test results.

In every instance in which the Players A

ssociation agreed to “reasonable cause”

testing for steroids during the years when that

understanding was in pla

ce, no other investigation

was conducted into a player’s possible involve

ment with steroids or other prohibited

performance enhancing substances. No player wa

s disciplined for possession or use of steroids

under the Major League Baseball drug policy set

forth in the Commissioner’s memoranda, even

though several different incidents

provided evidence of possible i

nvolvement with steroids by a

number of major league players. These incidents

are discussed in more detail in later chapters.

In 2002, the previously unwritten underst

anding between Major League Baseball

and the Players Association was replaced by the

joint drug program that was established under

the 2002 Basic Agreement. The current program

provides its own formal procedures for

“reasonable cause” testing.

149

D. The Joint Drug Program Under th

e Basic Agreement, 2002 to Present

By 2002, public scrutiny of baseball and th

e possibility that

players were using

steroids and other performance e

nhancing substances had grown in

intensity since the previous

negotiations with the Players Association had concluded.

150

For the first time, negotiations for a

new collective bargaining agreement presente

d a real opportunity to achieve agreement on

mandatory random drug testing. Selig described th

e negotiations as a whole as “very tense and

tough.” Ultimately, a joint drug program that in

cluded the possibility

of a mandatory random

149

See

Major League Baseball’s

Joint Drug Prevention and Treatment Program, § 3(C)

(2006).

150

See infra

60-85 (discussing press reports).

testing component was agreed to just before

an August 2002 strike deadline, and that program

has further evolved in the succeeding years.

In March 2002, the Commissioner’s Offi

ce proposed a drug program modeled on

the one implemented the previous year in the minor leagues.

151

Under the proposal, the use of

anabolic steroids and other substances, includi

ng androstenedione, would

be prohibited; players

would be subject to up to three random drug tests

each year; an initial fail

ed test would be met

with treatment rather than a su

spension; and repeat offenders

would be subject to discipline.

152

The Players Association, which

historically had opposed mandat

ory random drug testing, did not

immediately respond.

In a June 2002 cover story, Sports Illustrated reported that Ken Caminiti had

admitted using anabolic steroids in 1996, the ye

ar he won the National League Most Valuable

Player award, and for a number of seasons thereafter.

153

In the article, Caminiti also said that

steroid use was widespread in Ma

jor League Baseball, an assert

ion that was supported by others

quoted in the story.

154

The Sports Illustrated article, together with allegations by former

American League outfielder (and former Am

erican League MVP) Jose Canseco about

widespread steroid use in baseball, spurred a Ju

ne 2002 hearing of a U.S.

Senate subcommittee.

151

See

Draft Proposal of Major League Baseball

’s Joint Drug Prevention and Treatment

Program, dated Mar. 6, 2002. The Players Association has noted that the proposal was not raised

until negotiations had been ongoing for a year.

152

See

Draft Proposal of Major League Baseball

’s Joint Drug Prevention and Treatment

Program, dated Mar. 6, 2002; Steroid Use in Professional Baseball and Anti-Doping Issues in

Amateur Sports: Hearing Before the Subcomm.

on Consumer Affairs, Foreign Commerce and

Tourism of the S. Comm. on Commerce, Science and Transp., 107

Cong. 7 (2002) (testimony of

Robert D. Manfred, Jr., executive vice presiden

t, labor and human resources, Major League

Baseball).

153

See

Tom Verducci,

Totally Juiced,

Sports Illustrated, June 3, 2002, at 34.

154

Id.

At the Senate hearing, Manfred described

a meeting of several team physicians in

January 2001 in which the physicians expresse

d their concern to Commissioner Selig that

steroids were presenting a threat to players and to

the integrity of the ga

me. Manfred noted that

there had been a 16% increase in the number of

players going on the disa

bled list over a three-

year period, and the length of th

eir stays on the disabled list ha

d grown longer. According to

Manfred, the consensus among the team physicians at

the meeting was that use of steroids had

been a contributing factor.

155

The physicians meeting that Manfred desc

ribed was held in Milwaukee, and was

attended by, among others, Dr. William Bryan of

the Houston Astros, Dr. John Cantwell of the

Atlanta Braves, Dr. John E. Conway of the Texas Rangers, and Dr. Michael Mellman of the

Los Angeles Dodgers. The meeting was convened by the Commissioner in anticipation of the

coming negotiations with the Players Associatio

n about a drug program and also to discuss

implementation of the minor league drug testing

program that year. Dr. Mellman recalled that

all of the physicians who attended the mee

ting had suspicions about steroid use on their

respective teams and said “we all

had stories” about steroid use by

players and its impact on their

health. He remembered that the consensus amon

g the team physicians was that steroid use was

“prevalent” in Major League

Baseball at the time.

Dr. Mellman believed that the subject of

steroid use in baseball had been under

discussion before the meeting but felt that Co

mmissioner Selig expressed a genuine sense of

concern about the issue at the meeting. Selig re

called that he came away from the meeting being

“deeply troubled about steroids.”

155

See

Steroid Use in Professional Baseball and

Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

Comm. on Commerce, Science and Transp., 107

Cong. 5-6 (2002) (testimony of Robert D.

Manfred, Jr., executive vice president, labor

and human resources, Major League Baseball).

At the June 2002 hearing, several Senators pressed Don Fehr of the Players

Association to commit that drug testing for st

eroids would be include

d in baseball’s new

collective bargaining agreement.

156

He responded that the Asso

ciation would consider in good

faith the issues raised by the Commissioner’s

March 2002 drug program proposal, but he added

that testing raised a number of

difficult issues, including the invasi

on of players’ privacy rights.

In an article published two days la

ter, Marvin Miller, the former ex

ecutive director of the Players

Association, asserted that the Commissioner’s proposal was unworkable and amounted to “moral

grandstanding” intended to make it appear that

the Players Association was the obstacle to drug

testing in baseball rather th

an to effect real reform.

157

Discussions continued, however, an

d on August 30, 2002, the clubs and the

Players Association reached agreement on the te

rms of a new Basic Agreement for the period

2003-06. In addition to a number of new economic

provisions, for the fi

rst time the collective

bargaining agreement included a form of mandatory random drug testing as part of a new joint

drug prevention and treatment program.

158

Commissioner Selig has stated

that the drug testing progr

am was the last item on

which the parties reached agreement and that, wh

ile the compromise reached was not perfect, “at

least it was a start.”

159

In his interview for th

is investigation, Selig expressed the view that the

2002 program was a necessary step toward achieving

the joint drug program that is in effect in

156

See Steroid Use in Professional Baseball

and Anti-Doping Issues in Amateur Sports:

Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and Tourism of the

Comm. on Commerce, Science and Transp., 107

Cong. 20-31 (2002).

157

See

Allen Barra,

Marvin Miller: Don’t Trust Ba

seball’s Drug-Testing Proposal

salon.com, June 20, 2002.

158

See

Major League Baseball’s Joint Drug Prevention and Treatment Program (2002) at

Attachment 18 to Basic Agreement.

159

See

Barry M. Bloom,

Selig: Drug Use Drops Below 1 Percent

, mlb.com, Feb. 1,

2006.

Major League Baseball today. Don Fehr of

the Players Association said that the 2002

negotiations were the first time the owners seri

ously pursued a proposal that called for random

testing of players.

The 2002 joint drug program prohibited the

use, possession, distribution, or sale

of a number of drugs, including all steroids lis

ted on Schedule III of the Controlled Substances

Act or any substances that later we

re added to that schedule or to

Schedule II of the Act. (This

provision resulted in the automatic

addition of androstenedione

and other steroid precursors,

other than DHEA, to baseball’s

prohibited list when Congress en

acted the Anabolic Steroids

Control Act of 2004. It also meant that human

growth hormone was not automatically included

because it is not a “controlled s

ubstance” under current federal law.

) The program also provided

for the possible automatic addition of a number of

other substances, whic

h were listed in an

addendum, based on congressional acti

on to regulate them generally.

160

Drug testing beyond 2003 was not automatic

under the program. Random testing

only would be implemented beginning in 2004 if

5% or more of the players tested during

anonymous “survey testing” in 2003 tested positive fo

r steroids, with a refusal to submit to a test

counting as a positive result.

161

If the 5% threshold was met, however, mandatory random

testing would begin with the 2004 se

ason, carrying with it th

e possibility of disc

ipline if a player

failed a second steroids test (after being placed on a treatment track following a first positive

test).

162

160

Major League Baseball’s Joint Drug Prev

ention and Treatment Program, §§ 1(D)(2), 2

& Addendum C (2002).

161

Id.

, §§ 3(A), (F).

162

Id.

, §§ 3(A), 9(B).

In November 2003, Major League Baseball announced that between 5% and 7%

of players who participated in the survey te

sting in 2003 had tested positive for steroids;

mandatory random testing therefore was

triggered to begi

n in the 2004 season.

163

In 2004,

1,133 tests were conducted under the program, resu

lting in 12 undisputed positive results for

steroids.

164

No players were suspended as a result of these positive tests because the program did

not provide for discipline for a fi

rst-time offender at that time.

During late 2003 and into 2004, the issue of

steroids in baseball again attracted

attention after the offices of BALCO were raided

by federal agents and news stories appeared

reporting that several baseball players had appe

ared before a federal grand jury that was

investigating BALCO.

165

In his January 2004 state of the union address, President George W.

Bush denounced the use of steroids in elite sports

and called on athletes, owners, and unions to

163

1,369 tests were conducted in 2003, and 96 of t

hose tests were positive for steroids.

Although 13 of the 96 positives were disputed by th

e Players Association, the disputes were

never resolved because the positive rate was ab

ove the 5% threshold under either calculation.

See

Letter from Robert D. Manfred, Jr. to Re

p. Thomas Davis and Rep. Henry A. Waxman,

dated Mar. 14, 2005, at 3; Letter from Robert D.

Manfred, Jr. to Rep. F. James Sensenbrenner,

Jr. and Rep. John Conyers, Jr., dated

June 20, 2005, at Attachment 1.

In early 2004, federal law enforcement agents

seized data concerning players who the

agents concluded had tested positive in 2003 surv

ey testing. A later a

ppellate court decision

stated that the names of “over

one-hundred” players ot

her than players who were implicated in

the BALCO investigation were identified by law enforcement agents.

See United States v.

Comprehensive Drug Testing, Inc.

, 473 F.3d 915, 924 (9th Cir. 2006). The government’s

reported list and the data that

it was based on remain under seal. As a result, we did not have

access to the list or the data.

164

See

Letter from Robert D. Manfred, Jr. to

Rep. Thomas Davis and Rep. Henry A.

Waxman, dated Mar. 14, 2005, at 2;

see also

Letter from Robert D. Manfred, Jr. to Rep. F. James

Sensenbrenner, Jr. and Rep. John Conyers, Jr.,

dated June 20, 2005, at Attachment 1. For an

additional 27 tests, the results eith

er were disputed or raised the

possibility that the players were

ingesting steroid precursors that

were not banned at the time.

See id.

165

See infra

112-20.

address the issue.

166

Three weeks later, U.S. Attorney General John Ashcroft announced an

indictment against several in

dividuals involved with BALCO.

167

In February 2004,

Commissioner Selig issued a directive to all majo

r league owners, front office executives, and

managers to refrain from commenting on “t

he BALCO proceedings specifically and

performance-enhancing drugs gene

rally,” and asked that the same

request be conveyed to active

major league players.

168

In March 2004, the Senate subcommittee he

ld another hearing

on the subject of

steroids in baseball. Senator John McCain addr

essed Don Fehr of the Pl

ayers Association about

perceived weaknesses in baseball’s

steroids policy, telling him:

Your failure to commit to addres

sing this issue straight on and

immediately will motivate this com

mittee to search for legislative

remedies. . . . I can tell you and your

players that you represent the status

quo is not acceptable. And we will ha

ve to act in some way unless the

players at Major League Players Asso

ciation act in affirmative and rapid

fashion. . . . [T]he integrity of th

e sport, and the American people,

demand a certain level of adherence [t

o] standards that, frankly, is not

being met at this time.

169

Fehr responded: “We’re certainly willing to

sit down and discuss any new and different ideas

and to look at matters in light of new informa

tion.” At the same hearing, Commissioner Selig

166

State of the Union Address, President Ge

orge W. Bush, The White House Office of

Communications (Jan. 20, 2004).

167

Press Release, Department of Justice,

Four Individuals Charged in Bay Area with

Money Laundering and Distribution of

Illegal Steroids (Feb. 12, 2004).

168

See

Memorandum from Commissioner Allan H.

Selig to All Major League Owners,

Club Presidents, Chief Executive Officers, Ge

neral Managers and Field Managers Re:

Performance-Enhancing Substan

ces and BALCO, dated Feb. 26, 2004.

169

Effectiveness of Drug Testing in Preventing

Steroid Use, Hearing Before the S. Comm.

on Commerce, Science and Transp.

, 108th Cong. 73 (2004).

said: “I realize that we have work to do.

We need more frequent and year-round testing of

players. We need immediate penalties

for those caught using illegal substances.”

170

Less than a year later, Major League Baseball and the Players Association agreed

to revisions to the joint drug program, which

they described in a January 2005 joint press

release.

171

For the first time, human growth hormone

was added as a prohibited substance under

the program (together with

seventeen other compounds).

172

In addition, the parties agreed to

more stringent penalties for positive steroids test

s, including: a 10-day suspension for the first

positive test; a 30-day suspension for the second positive test; a 60-day suspension for the third

positive test; a one-year suspension for a fourth positive test; and additional, progressive

discipline for any further positive tests.

173

Even as the 2005 revisions to the join

t drug program were being finalized,

however, the February 2005 releas

e of Jose Canseco’s memoir,

Juiced

, led to a March 17, 2005

hearing on the issue before the U.S. House

of Representatives Committee on Government

Reform.

174

One month later, Commissioner Selig sought

the Players Association’s agreement to

170

Id.

at 67, 74.

171

Press Release, Major League Baseball, ML

B and Players Association Reach Tentative

Agreement on New Steroid Policy (Jan. 13, 2005).

172

See

Major League Baseball’s

Joint Drug Prevention and Treatment Program, § 2(B)

(2005).

173

See id.

at § 9(B). The initial draft of the pr

ogram suggested the possibility that a first-

time offender could be fined and not suspende

d, but in testimony and a follow-up letter, Rob

Manfred stated that this reading

was not consistent with

the parties’ agreement and that a 10-day

suspension would be automatic for any first-time positive test for steroids.

See

Letter from

Robert D. Manfred, Jr. to Rep. Joseph Barton, Re

p. Cliff Stearns and Rep. Nathan Deal, dated

Mar. 24, 2005.

174

See Restoring Faith in America’s Pastim

e: Evaluating Major League Baseball’s

Efforts to Eradicate Steroid Use: Hear

ing Before the H. Comm. on Gov’t Reform, 109

Cong. 2,

10-11 (2005); see also

Letter from Robert D. Manfred, Jr

. to Rep. Joseph Barton, Rep. Cliff

Stearns and Rep. Nathan Deal, dated Mar. 24, 2005.

increased penalties of a 50-game suspension for

first-time offenders, a 100-game suspension for

second-time offenders, and a permanent ban for third-time offenders. The Commissioner also

recommended other changes, including a

dding amphetamines as banned substances.

175

November 15, 2005, the Commissioner and the Play

ers Association jointly announced revisions

to the program that implemented many of Selig’s proposals.

176

The program in effect today

remains essentially unchanged from that revised program.

177

The 2005 amendments added a new provision permitting either party to suspend

drug testing in the event

of a “governmental inves

tigation” that sought drug testing data as to

particular players (as opposed to da

ta regarding testing as a whole).

178

To date, neither party has

exercised its prerogative to suspend

testing under this provision.

Before the provision was added to the

program, however, testing was suspended

for some players for a period during 2004. In

April 2004, federal agents executed search

warrants on two private firms involved in the 2003 survey testing, Comprehensive Drug Testing,

Inc. and Quest Diagnostics, Inc.; the warrants

sought drug testing records and samples for ten

major league players connected with the BALCO i

nvestigation. In the course of those searches,

175

See

Letter from Commissioner Allan H. (B

ud) Selig to Donald M. Fehr, dated

Apr. 25, 2005.

176

See

Press Release, Major League Baseball Office of the Commissioner and Major

League Players Association, MLB, MLBPA

Announce New Drug Agreement, dated Nov. 15,

2005; Major League Baseball’s Joint Drug

Prevention and Treatment Program (2006).

Amphetamines and other stimulants were added to

the joint drug program, but positive tests for

these substances were subject to a different sc

heme of penalties, with no penalty for the first

failed test, a 25-game suspension for the second fa

iled test, an 80-game suspension for the third

failed test, and permanent suspension for a fourth failed test.

See

Major League Baseball’s Joint

Drug Prevention and Treatment Progr

am §§ 2(C), 3(A), 8(C) (2006).

177

See

2007 Basic Agreement Between the 30

Major League Clubs and the Major

League Baseball Players Association, Art. XXVII.

178

See

Major League Baseball’s

Joint Drug Prevention and Treatment Program, § 6(E)

(2006); Major League Baseball’s Joint Drug Pr

evention and Treatment

Program, § 6(E) (2005).

the agents seized data from which they believed they could determine the identities of the major

league players who had tested positiv

e during the anonymous survey testing.

179

As discussed in

more detail below, a moratorium on testing wa

s agreed to between the Commissioner’s Office

and the Players Association to provide the Pl

ayers Association the oppor

tunity to notify the

affected players that the information was in the hands of the government.

180

The Players Association filed motions in fe

deral court seeking the return of all of

the property seized and quashing ce

rtain other grand jury subpoenas

issued after the initial search

warrants were executed. The distri

ct court granted those motions,

but the U.S. Court of Appeals

for the Ninth Circuit reversed those orders,

finding that the government’s seizure of the

information was appropriate and lawful. The appellate court remanded the case for further

proceedings in the district court as

to certain of the seized information.

181

As of the date of this

report, a motion by the Players A

ssociation for reconsid

eration of the decision is still pending.

179

See

United States v. Comprehensive Drug Testing, Inc.

, 473 F.3d 915, 920-24

(9th Cir. 2006).

180

See infra

at 281-84.

181

See

Comprehensive Drug Testing, Inc.

, 473 F.3d at 943.

IV. Early Indications of Steroid Us

e in Baseball (1988 to August 1998)

As noted earlier in this report, in 199

4 Congress passed and the President signed

into law the Dietary Supplement Heath and Educa

tion Act. It was approved unanimously by the

Senate, without objection. I was

the Majority Leader of the Se

nate when DSHEA was approved.

It was one of thousands of measures that th

e Senate considered during my tenure. Today,

thirteen years later, I have only a vague recollect

ion of the Senate’s consideration of the Act.

However, with the benefit of

hindsight, knowing what I now know,

I regret that I did not speak

out against the manner of regulating supplements

that resulted from enactment of that law.

I have had other similar experiences. As a result, I am well aware of the

difficulty, the complexity, and sometimes the unfai

rness of judging past actions with the benefit

of knowledge of later events. N

onetheless, when properly and ca

refully done, analysis of the

past can be a useful, sometimes indispensable,

guide for avoiding mistakes in the future.

As the discussion in the following sections

demonstrates, baseball’s response to

the use of performance enhancing substances was slow to develop

and was initially ineffective,

but it gained momentum after 2002.

A review of the early warni

ng signals can be valuable in

evaluating the current program and, most importa

ntly, in helping guide future actions.

Many baseball officials have pointed to

the intense media scrutiny in August 1998

that followed the discovery of androstenedione

in Mark McGwire’s locker as the event that

focused their attention on whether baseball had

a problem with the use of

performance enhancing

substances. There were earlier incidents and

many published reports, but they were scattered

across several years and around the

country. Collecting and reading

them all at once, as I have

done, makes it obvious in hindsig

ht what was happening.

There have been many estimates of use.

In 2002, former National League Most

Valuable Player Ken Caminiti estimated that “at least half” of major league players were using

anabolic steroids. Dave McKay, a longtime coach

for the St. Louis Cardinals and the Oakland

Athletics, estimated that at one time 30% of play

ers were using them. Within the past week, the

former Cincinnati Reds pitche

r Jack Armstrong estimated that

between 20% and 30% of players

in his era, 1988 to 1994, were using large doses of

steroids while an even higher percentage of

players were using lower, ma

intenance doses of steroids.

182

There have been other estimates, a

few higher, many lower, all impossible to verify.

The players who used performance enhanci

ng substances bear an obvious share of

the responsibility for the problem; but others,

both in and out of baseball, share in that

responsibility. Even before 1998 many in baseball

were aware of the prob

lem; indeed, several

baseball officials talked public

ly about it then. Those who knew about it should have insisted

that something be done. The issue did not rece

ive the same degree of

attention that later

followed the McGwire incident.

A. Jose Canseco and the First Public

Speculation About Steroids in Baseball

In a widely reported incident during th

e Summer Olympics in September of 1988,

the Canadian sprinter Ben Johnson was stripped

of a gold medal in the 100-meter sprint for

testing positive for stanozolol, an anabolic

steroid sold under the

brand name Winstrol.

183

Days

later, the first public speculati

on appeared about a player’s use of steroids in Major League

Baseball.

In an appearance on the CBS program

Nightwatch

on September 28, 1998,

Washington Post baseball writer Thomas Boswell described

Jose Canseco as “the most

conspicuous example of a player who has made hi

mself great with steroids.” Boswell said he

182

See

Wayne Coffey,

Former All-Star Jack Armstr

ong Hoping to Set the Record

Straight on Steroid Era

, N.Y. Daily News, Dec. 9, 2007.

183

Michael Janofsky,

Johnson Loses Gold to Lewis After Drug Test

, N.Y. Times,

Sept. 27, 1988, at A1.

based this assertion on comments made by Tony

La Russa, then the manager of the Oakland

Athletics, to the effect that Canseco had made

“some mistakes” earlier in his career. La Russa

said in response that he had not intended to

imply that Canseco had us

ed steroids, and Canseco

denied that he had done so.

184

Soon after Boswell’s remarks, the Oakla

nd Athletics began the American League

Championship Series against the Boston Red Sox in Fenway Park. Canseco was met with loud

chants deriding him for his allege

d steroid use, prompting Canseco

to flex his biceps and tip his

cap to the Fenway fans for “their originality.”

185

A spokesman for the Commissioner’s Office

said that baseball would not i

nvestigate Canseco’s possible ster

oid use because baseball had “no

information about his usage or the usage of

any other player in the major leagues.”

186

Sandy Alderson, Oakland’s general manager at the time, remembered the

chanting, but in our interview he said that he did

not then believe that Canseco had used steroids.

Later, as one of the most senior executives in Major League Baseball, Alderson came to believe

that baseball had a problem with steroid use,

but he did not come to that conclusion until

sometime after the 1998 articles appeared

about McGwire’s use of androstenedione.

187

congressional testimony in 2005, Alderson said th

at during the 1990s, othe

r factors “obscured a

steroid problem”:

184

See

Report That He Used Steroids

Denied by Athletics’ Canseco

, St. Louis Post-

Dispatch, Oct. 1, 1988, at C3.

185

Peter Gammons,

Socking it to the Red Sox: With

an All-Around Performance Worthy

of the A's of the 1970s, Oakland Beat Bo

ston for the Pennant in Four Straight

, Sports Illustrated,

Oct. 17, 1988, at 34.

186

Ken Rodriguez and Jorge Ortiz,

Canseco Denies Using Steroids

, Miami Herald,

Sept. 30, 1998, at D1.

187

See

Restoring Faith in America’s Pastime:

Evaluating Major League Baseball’s

Efforts to Eradicate Steroid Use: Hear

ing Before the H. Comm. on Gov’t Reform, 109

Cong.

307 (2005) (statement of Sandy Alderson, then-execu

tive vice president for baseball operations,

Major League Baseball).

Home runs and run production were

increasing during the time but not

always year to year. At the same

time, strength programs were in vogue

across baseball. Hitter-friendly ballpar

ks were being built. Expansion had

occurred in 1993 and again in 1998.

Two seasons, ’94 and ’95, had been

shortened by a players’ strike. Ba

t design had changed and there was an

emphasis with many clubs on having more offensive players even at

traditionally defensive positions.

188

Just before the 1989 season began, David

Valdez, Jose Canseco’s assistant and

traveling companion, pleaded guilty

to possession of a handgun while

clearing security in Detroit

Metropolitan Wayne County Airport.

He was alleged to have been in possession of steroids

when the gun was seized. Canseco had been with

Valdez at the time, but he later denied any

connection to the steroids or even knowing that Valdez was carrying st

eroids, explaining to a

reporter that: “From what I know when he wa

s young he was anemic and they did prescribe

some pills for weight gain.”

189

Valdez said that he admitted the gun charges to spare Canseco

embarrassment about the steroids.

He explained that the steroids

belonged to him, not Canseco,

but Valdez added that he did not know the pills he

was carrying were steroids at the time of his

arrest.

190

Given Canseco’s more recent and highly publicized admissions of his own steroid

use, the connection between Canseco and the ster

oids Valdez was carrying while traveling with

him now appears obvious. At the time, howeve

r, a report in the Sa

n Francisco Chronicle

described the connection as “tenuous” (although soon thereafter a Chronicle sports columnist

expressed some skepticism and also stated that base

ball did “not even have

a rule against steroid

188

Id.

189

David Bush,

Steroids Found on Canseco’s Friend Incident at Detroit Airport

, S.F.

Chron., Mar. 22, 1989, at D1.

190

John Castine,

Friend Says He Pleaded Guilty to Protect A’s Canseco

, New Orleans

Times-Picayune, Mar. 22, 1989, at C10.

use” and “[t]heoretically, a baseba

ll player could keep a bottle of

steroids in his locker in the

clubhouse and eat them during interviews”).

191

Fay Vincent, who served as Commissi

oner from September 1989 to September

1992, said years later that he was “wrong not

to jump all over the steroids issue”:

There were signs. There were rumors. We all heard about Canseco. But

the baseball world – and I was one

of them – thought steroids was a

football problem, not a baseball

problem. We were totally wrong.

192

In hindsight, Vincent told me that he failed to

notice the emergence of steroids because he was

focused on cleaning up the problem of

cocaine use by major league players.

193

In 2005, after Canseco’s memoir

Juiced

was published, former Oakland manager

Tony La Russa told “60 Minutes Wednesday” that

when Canseco played for Oakland he “would

laugh about the time that other guys were spe

nding [in the gym] and how

he didn’t have to,

because he was, he was doing the other ‘helper.’

He was having help in

a different way. You

know, the easy way.”

194

The San Francisco Chronicle reporte

d that La Russa said that when

Canseco got his contract, “he changed. He’d talk

about the juice, and othe

rs would talk to him

about his health.”

195

La Russa also reportedly said

that in 1990 or 1991, Canseco “stopped

191

David Bush,

Steroids Found on Canseco’s Friend Incident at Detroit Airport

, S.F.

Chron., Mar. 22, 1989, at D1; C.W. Nevius,

Thank you, Ben Johnson

, S.F. Chron., Mar. 24,

1989, at D1.

192

Jay Mariotti,

Pleading the Fifth Can’t Hide the Truth

, Chicago Sun-Times, Mar. 17,

2005, at 119.

193

In addition to Steve Howe, whose life

time ban was overturned after Vincent was

removed as Commissioner, Vincent suspended p

itcher Rick Leach, catcher Gilberto Reyes,

outfielder Otis Nixon, first baseman Leon Durham,

and pitcher Pascual Perez for violating the

Commissioner’s drug policy. As

mentioned above, Vincent ame

nded baseball’s drug policy in

June 1991 to add anabolic steroids as prohibite

d substances, soon after the Anabolic Steroids

Control Act of 1990 became effective.

194

Associated Press,

La Russa: Canseco Had Helper, Wash. Post, Feb. 17, 2005, at D9.

195

John Shea, Steroid Accusations Leave Former Teammates, La Russa Livid

S.F. Chron., Feb. 7, 2005, at D1.

working, he got bigger than ever

, and the coaches and I got susp

icious and actually confronted

him.”

196

Similarly, Dave McKay, an Oakland co

ach from 1984 to 1995, told the New York

Times that Canseco would speak openly about st

eroids and ignore advice to stop using them.

197

He was also quoted in the Toront

o Sun as having said that: “We had one guy who talked about

steroids and that was Jose. . . . The most co

mmon question I was asked was: ‘I won’t get too

big, will I?’”

198

But when La Russa and McKay were in

terviewed in conne

ction with this

investigation, they both denied having direct kn

owledge that Canseco had used steroids. La

Russa claimed that he had “exaggerated” in his

CBS interview, that Canseco had never used the

word “helper,” and that, in fact, La Russa ha

d never confronted Canseco about his use of

steroids. When asked why he would “exaggerate

” on national television, La Russa said that he

questioned Canseco’s motives in making the statem

ents he had made and he felt that Canseco

was trying to impugn the achievements of his form

er Oakland teammate Mark McGwire and the

Oakland teams of the late 1980s. McKay did not

deny the accuracy of hi

s reported statements,

but he claimed that the statements did not amount

to an acknowledgment that he had first-hand

knowledge of Canseco’s use of steroids. McKay sa

id that when he stated that “we had one guy

who talked about steroids and that was Jose,” he

meant only that if any player might have used

steroids it was Canseco. McKay

also heard other people mention

that Canseco might have used

steroids.

196

Bernie Miklasz,

Previous Defense of Canseco Hurts La Russa’s Case

, St. Louis Post-

Dispatch, Feb. 14, 2005, at D1.

197

Tyler Kepner,

La Russa Disputes Claims in Canseco’s Book

, N.Y. Times, Feb. 7,

2005, at D1.

198

Bob Elliot,

McKay: Anger to Pity: Ex-A’s Coach Tells Bob Elliot that He Expects to

Be Named in Canseco’s Controversial Book

, Toronto Sun, Feb. 10, 2005, at Sports 6.

Even while providing these explanations of

their prior statements, both La Russa

and McKay acknowledged that they had suspected

Canseco of using steroids when he was

playing with Oakland. McKay said: “It just got

to the point where you knew he [used them].”

Neither La Russa nor McKay shared their concer

ns with the Oakland front office, however.

According to La Russa, “I thought, what’s

the use? So I didn’t say anything.”

Former Oakland general manager Sandy Alde

rson strongly denied a statement in

the book

Juicing the Game

that “[b]y 1992, even Alderson thought

Canseco was a steroid user.”

Alderson had been familiar with the incidents report

ed in the media, but he

still did not believe at

the time that Canseco was using steroids and di

d not look into it. Alde

rson did, at one point,

consider testing one or two pl

ayers for steroids, possibly incl

uding Canseco (but, Alderson made

clear, not Mark McGwire). The club obtaine

d testing equipment and

arranged for a testing

laboratory, but the idea was abandoned out of a con

cern that the testing w

ould violate baseball’s

collective bargaining agreement. Canseco wa

s traded to the Texas Rangers in 1992 but,

according to Alderson, not out of any concern relati

ng to his alleged involvement with steroids.

B. Lenny Dykstra Evokes Suspicions of Steroid Use

As with Jose Canseco, Philadelphia Phill

ies center fielder Lenny Dykstra was the

subject of several articl

es speculating about his po

ssible use of steroids.

199

The first appeared at

the start of the 1990 season, when Dykstra credit

ed “real good vitamins” for adding 30 pounds of

muscle to his frame during the off-season. Sim

ilar articles appeared early in 1991 and after a

break-out season in 1993.

200

During our investigation, Philade

lphia’s then-general manager Lee

199

Dykstra’s name would come up years

later in connection with a government

investigation of Kirk Radomski.

See infra

at 149-50.

200

See

Rick Hummel and Dan O’Neil,

Cox Hopes to Be Back in Month . . . Says 25 Starts

Are Possible This Season

, St. Louis Post-Dispatch, Apr. 16, 1990, at 4C; Ray Ratto,

Opponents

Sense Giants Out-of-Kilter Rosen, Craig Suddenly

Have Been Forced to Patch Roster with

Thomas confirmed that he had suspicions that

Dykstra might have been using performance

enhancing substances when he arrived at spring training in 1993 noticeably

bigger. Thomas told

Dykstra he hoped he had not done

anything to jeopardize his h

ealth, and in response Dykstra

denied using steroids.

Philadelphia’s then-head athletic trainer Je

ff Cooper told us that during this period

he observed a Phillies player w

hose use of steroids was “obvious

.” Cooper would not divulge

the player’s identity to us. He told us that

he approached the general manager (apparently

Thomas) to report his concerns, a

nd the general manager advised C

ooper that he should raise the

subject with the player di

rectly. Cooper then did raise the issu

e with the player, who said it was

none of Cooper’s business. The matter went no further.

C. The 1991 Major League Baseball Alcohol and Drug Use Survey

In 1990, Major League Baseball commissione

d a survey of alcohol and drug use

among player and non-player personnel. The project

was a joint effort of

the Players Association

and the owners’ Player Relations Committee. Most

of the responses were gathered during spring

training in 1991.

201

Approximately 80% of major league player

s participated in the survey. Of the

880 players who responded (including some minor

league players), onl

y 1.5% reported using

anabolic steroids during their lif

etime, and only 0.5% reported use of steroids in the preceding

Bodies from Waiver Wire

, National League Notebook

, S.F. Chron., Apr. 7, 1990, at D3 (“Center

fielder Len Dykstra, who was suppos

ed to be trade bait last wint

er, came back 26 pounds heavier

and proceeded to go 4-for-4 with a double Sunday

in his first official game of the season.

Reason: ‘I did a lot of lifting a

nd free weights. And I took some

very good vitamins.’ Uh-oh.”);

Stan Hochman,

Thomas: Blame Union, Not Phils

, Phila. Daily News, Mar. 16, 1991, at 45

(“Guys saying that if Lenny Dykstra hits .325 we

’re not worried about what happens off the

field. We are very concerned. But our hands

are tied. We’re handcuffed by the union.”); Ross

Newhan,

In Your Face if Not Your Hair

, L.A. Times, Mar. 20, 1994, at Sports 3.

201

George De Leon, Ph.D., and Stanley Sack, Ph.D., Major League Baseball Alcohol and

Drug Use Survey, 1991, Final Report (Draft 3/93).

12 months. While the study’s authors acknowle

dged that underreport

ing was certainly a

possibility, participating player

s admitted use of amphetamines

and certain serious drugs of

abuse at much higher rates. The study’s authors c

oncluded that “there is l

ittle indication of lying

and the obtained rates should

be taken as reliable but

conservative

estimates.”

202

The survey, and the cooperation between ow

ners and the Players Association that

brought it about, reflected an ad

mirable joint commitment to self

-examination of drug use in the

game at the time. The authors concluded that

“[t]he major purpose of this project has been

accomplished. MLB has established a scientific da

ta base to inform alcohol and drug policy and

planning.”

203

The study’s authors made several reco

mmendations, most notably that “MLB

should develop a comprehensive in

tegrated health-oriented preven

tive education, treatment, and

aftercare program for the entire MLB comm

unity” and that “MLB should launch periodic

surveys to monitor changes and trends in substance use . . .”

204

D. Baseball Writers Address the Issue, 1992-95

In March 1992, Pittsburgh columnist Gene Collier addressed the perception that

baseball was not a sport for steroids users.

Collier derided the sugges

tion that the game of

baseball “is simply too complex to be positiv

ely augmented by some injectable.” He quoted

Penn State professor Charles Yesalis, an outspoken cr

itic of steroid use, who said that steroids

were a “natural” fit for baseball:

I don’t know how common it is, but I

have colleagues in the sports

medicine community who say “Yeah

, they’re doing it. . . . You know

baseball players are lifting weights.

They’re in gyms where the steroids

are, and pro baseball player

s know pro football players.”

202

Id.

at 53 (emphasis in original).

203

Id.

at 70.

204

George De Leon, Ph.D., and Stanley Sack, Ph.D., Major League Baseball Alcohol and

Drug Use Survey, 1991, Presentation Report, at 23.

After discussing the problems posed by human grow

th hormone and other substances that were

difficult to detect in drug tests, Collier conclude

d that baseball “should cons

ider testing if only to

show how it feels about a le

vel field being mandatory.”

205

In August 1992, Peter Gammons reported in

the Boston Globe that while there

was not much discussion of steroid use in baseball, “there’s a growing su

spicion that it’s much

greater than anyone lets on.”

Ten years before Rob Manfred’s 2002 Senate testimony, Gammons

wrote that a recent increase in injuries in Majo

r League Baseball could be

the result of steroid

use, as “players’ muscle mass becomes too great

for their bodies, resulting in the odd back and

leg breakdowns . . .”

206

The issue was mentioned from time to time in

articles over the next several years.

One Long Beach, California reporter asserted in J

une 1993 that the use of steroids in baseball

was “starting to run rampant.” A law review

article in spring 1994 argued for separate drug

testing programs in baseball for drugs of

abuse and performance enhancing substances.

207

A vocal early observer of the growing steroids problem in baseball was Bob

Nightengale, who was then a baseball writer with the Los Angeles Times (and now covers

baseball for USA Today). In a July 1995 arti

cle entitled “Baseball St

ill Doesn’t Get It,”

Nightengale observed:

205

Gene Collier,

Baseball’s Field May Not Be Level

, Pittsburgh Post-Gazette, Mar. 22,

1992, at C1.

206

Peter Gammons,

They’ve Met Disappointment

, Boston Globe, Aug. 16, 1992, at 48.

207

See

David Cunningham,

More Than a Few Make Much Ado Over Voodoo,

Long

Beach Press-Telegram, June 28, 1993, at E3; Edward Rippey,

Contractual Freedom Over

Substance-Related Issues in Major League Baseball

, 1 Sports Lawyers J. 143, 156 (Spring

1994);

see also

Bob Nightengale,

Herzog, Others Say Lamont Was Right to Look for Cheating

L.A. Times, July 20, 1994, at Sports 1 (“Sa

id Angel second baseman Harold Reynolds: ‘You

hear about some guys using steroids

for some extra pop, but not cork.’”).

Come on, you know there’s no steroid us

e in baseball. Those bodies and

dramatic increases in strength and ba

t speed are only the byproducts of

these athletes dedicating their bodies to the gym all winter. That’s what

baseball tells us.

208

Several weeks later, a Nightengale story

quoted a number of major league players

and front office executives who expressed concern over the prevalence of steroid use in Major

League Baseball.

209

Originally published in the Los Ange

les Times, the story was picked up by

wire services over the next few days and a revise

d version ran in the next

issue of the Sporting

News, in which steroid use was called “b

aseball’s deep, dark, sinister secret.”

210

In the article, Randy Smith, then the general manager of the Padres, was quoted as

having said that “[w]e all know there’s steroid use,

and it’s definitely b

ecome more prevalent.”

He estimated that “10% to 20%” of players

were using steroids. Another unnamed general

manager said that he “wouldn’t be surprised if it’s closer to 30%” and th

at he thought the entire

lineup of one American League team a few years earlier “may have been on it.” He said he was

“seeing guys now who were washed up five year

s ago, and now they’ve got bat speed that

they’ve never had before. It’s insane.” Kevi

n Malone, then-general ma

nager of the Montreal

Expos, said that he heard “rumors that usage is

way up, and it would be ni

ce to know if those are

accurate.” Players also were quoted in the articl

e, with Frank Thomas of the Chicago White Sox

208

Bob Nightengale,

Baseball Still Doesn’t Get It

, Palm Beach Post, July 2, 1995, at C13.

209

Bob Nightengale,

Steroids Become an Issue, Baseball: Many Fear Performance-

Enhancing Drugs Is Becoming Prevalen

t and Believe Something Must Be Done

, L.A. Times,

July 15, 1995, at C1.

210

Bob Nightengale,

Steroids in baseball? Say it ain’t so, Bud.

, Sporting News, July 24,

1995, at 16;

see, e.g.,

Bob Nightengale,

Steroid Use Said Rampant in Baseball

, New Orleans

Times-Picayune, July 16, 1995, at C1; Bob Nightengale, Steroids Muscling Their Way Into

Baseball, Lack of Testing Fuels Suspicions Among Players

, N.J. Record, July 18, 1995, at

Sports 3.

saying that he’d “love to see

testing” and future Hall of Fame member Tony Gwynn of the

Padres calling steroids “the

big secret we’re not supposed to talk about . . . .”

211

Commissioner Selig was quoted

in the article as having sa

id that “[i]f baseball has

a problem, I must say candidly that

we were not aware of it . . . .

It certainly hasn’t been talked

about much.” Nightengale reported that, accord

ing to Selig, the issue had been discussed among

the owners at a meeting eighteen months earlier

and that “no one had any evidence that steroid

use should be a concern.”

212

Kevin Hallinan, baseball’s longtim

e security director who retired in

2007, confirmed that no inquiry was conducted in the

wake of this article

or other early press

reports about the issue.

E. The 1996 Offensive Explosion and Ken Caminiti’s MVP

The 1996 season began with an outbreak of

hitting so dramatic that Commissioner

Selig considered it to be “startling.”

213

Immediately, speculation turned

to the use of steroids by

baseball’s big hitters, with pitcher Tim Belche

r saying: “Everybody’s blaming the pitchers, but

it’s smaller strike zones, smaller parks a

nd steroids. That’s not a good combination.”

214

In a May 1996 article, Sporting News wr

iter Steve Marantz compared baseball’s

drug policy to the policies of other sports, conclu

ding that baseball’s “failure to screen for

211

See

Bob Nightengale,

Steroids Becomes an Issue, Base

ball: Many Fear Performance-

Enhancing Drugs Is Becoming Prevalen

t and Believe Something Must Be Done

, L.A. Times,

July 15, 1995, at C1.

212

Id.

213

Ross Newman, Pitchers Hit the Showers in April

, L.A. Times, May 5, 1996, at Sports

10. On the phenomenon generally,

see

Chuck Johnson,

Season Starts with a Bang

, USA Today,

May 1, 1996, at C3; Howard Thomas,

Baseball’s Offensive Punch Too Much?

, Capital Times

(Madison, WI), May 1, 1996, at B1; John Steigerwald,

Power Play Aren’t All These Home Runs

Exactly What Baseball Needs?,

Pittsburgh Post-Gazette, May 4, 1996, at B3; Jack Etkin,

Is All

This Scoring Good for Baseball? Offense Runs Game in 1990s

, Denver Rocky Mountain News,

May 30, 1996, at C15.

214

Ross Newhan,

Pitchers Hit the Showers in April

, L.A. Times, May 5, 1996, at Sports

10.

steroids” was the most glaring failure of its

drug policy. “Look around at

baseballs flying over

fences, and at the pumped-up torsos swinging ba

ts, and ask yourself if everybody is playing

fair.” He quoted Dr. Robert Voy, formerly the physician for the U.S. Olympic team and the

author of a book published after

the 1988 games that analyzed the

steroids problem, who said:

“One has to question the sudden pr

owess of certain athletes. . . .

It may come from the weight

room, but in my experience weight

rooms are where steroid use starts.”

215

In a July 1996 article in the Pittsbur

gh Post-Gazette, Ron Cook analyzed the

possible explanations for the season of drama

tic power hitting. Among other possible reasons,

Cook wrote: “There are other factors, to be su

re. Hitters are bigger a

nd stronger. (Can you say

steroids, ladies and gentlemen)

.” He quoted Jim Leyland, then the manager of the Pittsburgh

Pirates, as saying: “I’d swear

on a stack of bibles we don’t have

steroids on this team . . . but

I wouldn’t know about the rest of baseball.” Th

e article also reported es

timates that as many as

35% of major-league players were using steroids

and noted that Jose Canseco and Lenny Dykstra

had been taunted by fans fo

r their alleged steroid use.

216

Years later, in a summer 2002 Sports I

llustrated article, Ken Caminiti would

acknowledge that his breakout offensive performan

ce in 1996 was aided by the use of anabolic

steroids.

217

But that revelation was six years in the

future in November 1996, when Caminiti was

chosen the National League Most Valuable Play

er in a unanimous vote

after hitting 40 home

runs and driving in 130 runs.

218

215

Steve Marantz,

Addiction by Distraction

, Sporting News, May 27, 1996, at 10;

see

Robert Voy, M.D., Drugs, Sport, and Politics (Leisure Press 1991).

216

Ron Cook,

Slam Dance

, Pittsburgh Post-Gazette, June 9, 1996, at D3.

217

Tom Verducci,

Totally Juiced

, Sports Illustrated, June 3, 2002, at 34.

218

See

Murray Chass, Caminiti Gets MVP; Williams Gets Traded

, N.Y. Times, Nov. 14,

1996, at 17.

Both Kevin Towers, the Padres general

manager at the time, and Larry Lucchino,

then the Padres’ chief executive officer and president (who is now chief executive officer and

president of the Boston Red Sox), said that they

were surprised by the 2002 Sports Illustrated

revelations of Caminiti’s use of steroids. The

Padres manager at the time, Bruce Bochy, also

claimed never to have suspected Caminiti of us

ing steroids before the 2002 article (although in

another article he was quoted saying that the re

velations were “certainly not a big surprise”).

219

During our investigation, however, a number

of Caminiti’s former teammates recounted

incidents describing his open use of

steroids as early as 1995. It

appears that Caminiti began

researching the possibility of us

ing steroids as early as 1993

or 1994, when he discussed the

issue with one of his teammates on the Houston Astros.

One of Caminiti’s later Pa

dres teammates, Wally J

oyner, acknowledged that he

discussed using steroids with Caminiti in 1998, wh

en Joyner was feeling the effects of the game

on his aging body. In an interview for this investiga

tion, Joyner told us that he struggled with the

decision whether to try steroids,

but eventually he decided to us

e them. After taking the drugs

three times, Joyner decided that he had made a mist

ake, discarded the rest of the pills, and never

tried illegal performance e

nhancing substances again.

220

F. Reporting on the Issue Continues, 1996-98

Days before the results were announced

of voting for the 1996 most valuable

player awards, Bob Nightengale wr

ote another article on the topic,

asserting that baseball needed

219

See

Nick Canepa,

Caminiti’s Admission to Sports

Illustrated Taints MVP Season

, San-

Diego Union-Tribune, May 29, 2002, at

D1 (“‘I’m not surprised – maybe a little bit, I guess, but

it’s certainly not a big

surprise,’ says Padres manager

Bruce Bochy, who was on the bridge

during the ’96 season when Caminiti carried his team

to the NL West title. ‘Players are using

steroids. With Cammy’s injuries that year, that

rotator cuff injury, and his build no, it doesn’t

shock me.’”).

220

See also

Shaun Assael and Peter Keating,

Who Knew? Part II: the Tipping Point, the

Friend,

ESPN the Magazine, Nov. 9, 2005.

to “pull its head out of the sa

nd and start checking for steroids” and that the problem was “raging

out of control.” “Want to know why there were

so many home runs this

season?,” Nightengale

asked. “It’s not that the pitching is so bad, but

that the players are so

juiced.” Nightengale

observed that the “ones being penalized are th

e players who refuse to use steroids . . .”

221

Peter Gammons also revisited the issu

e in a pre-season roundup before the 1997

season began, reporting that “physicians and GMs

are increasingly concerned about steroid use

in baseball. As one team physician said last

week, ‘The owners w

on’t do anything about it

because the cost of testing for st

eroids is very high, and they don’t want to face the costs or the

circumstances.’” Gammons criticized the Commi

ssioner’s Office for “turn[ing] its back on such

issues.”

222

Other articles appeared throughout the 1997 season.

223

An April 1997 Sports

Illustrated article called the use of steroids

and other performance enhancing substances,

including human growth hormone, th

e “dirty and universal secret

of sports, amateur and pro, as

the millennium draws near.” It listed Major Le

ague Baseball among the sports where that use

221

Bob Nightengale,

Baseball Is One Industry Badly in Need of a CEO

, Sporting News,

Mar. 24, 1997, at 22.

222

Peter Gammons,

Birds Have Feathered Their Nest

, Boston Globe, Mar. 2, 1997, at

The suggestion that owners avoided testing b

ecause of its high cost has been repeated since

then by others who write about baseball. Desp

ite extensive inquiry I

found no evidence to

support this assertion. All of the owners and

other baseball officials

I interviewed strongly

denied it.

223

See, e.g.

, Bob Molinaro,

Steroid Alert: Some Might Be Corking Their Biceps

, Virginia

Pilot and Ledger-Star, Mar. 7, 1997, at C1 (“The

next scandal in Major League Baseball may

relate to steroid use by player

s, a story that is starting to

leak out.”);

Bob Nightengale,

Baseball

Is One Industry Badly in Need of a CEO

, Sporting News, Mar. 24, 1997, at 22 (“This is an

industry so naïve that it still be

lieves steroid use is not a proble

m when, in fact, it rages out of

control.”); John Steigerwald,

Lemieux’s Way Out Mario Just Go

t Tired of Waiting for NHL to

Open Up Game

, Pittsburgh Post-Gazette, Mar. 29, 1997, at

C3 (“It has taken longer than it

should have, but more and more the media are be

ginning to realize that Major League Baseball

has another major problem beyond the familiar ones: Steroids.”).

was an issue.

224

In a July 1997 article, Ken Caminiti reportedly told the Denver Post that:

“There’s a lot of monsters (muscular players)

in baseball. You don’t want to tarnish the

reputation of the sport, but I don’t

think the fans ar

e naïve either.”

225

In August, Jim Bowden,

then the general manager of the Cincinnati Re

ds, told the Rocky Mountain News that there

should be testing for steroids in baseball: “I

think there’s a lot of

people in baseball using

steroids, and that’s not fair

to those who don’t use steroids.”

226

And a November 1997 article in

the Los Angeles Times cited a “well connected

source” for the assertion that “half the position

players in the major leagues use steroids . . . .”

227

The public speculation continued into the

1998 season. In a first-person article in

the Birmingham News, Detroit Tige

rs pitcher Todd Jones wrote:

This week’s topic is a tough one to

write. I enjoy the game so much it

hurts me to defame it, but as a somewhat member of the media, I believe it

is my job to tell you the stuff that is

uncomfortable for me as a player. I’m

talking today about the use and abuse of

steroids and uppers. In my time

in the big leagues, I’ve never seen a

nyone take steroids. But I have seen

teammates come to spring training 40

pounds heavier, then tell me: ‘Not

me, man, I used creatine.’ Yeah, righ

t! I don’t know the exact number,

but probably two or three players on

every team take ‘roids. More

position players take them than pitchers. Steroids I don’t think help arm

speed.

228

224

Michael Bamberger and Don Yeager,

Over the Edge: Aware that Drug Testing Is a

Sham, Athletes to Rely More than Ever on Banned Performance Enhancers

, Sports Illustrated,

Apr. 14, 1997, at 60.

225

Jerry Crasnick,

Get a Load of This! Baseball Players Are Taking a Powder –

Creatine

, Denver Post, July 28, 1997, at D1.

226

Tracy Ringolsby with Jim Bowden and Alan Meersand,

Drug Policy Skirts the Issue

Should Baseball Test for Steroids?

Denver Rocky Mountain News, Aug. 28, 1997.

227

Randy Harvey,

The Inside Track

, L.A. Times, Nov. 4, 1997, at Sports 2.

228

Todd Jones,

Using Drugs Same as Deal with Devil

, Birmingham News, May 31,

1998, at Sports 11.

Similarly, in an article that appeared in

early August, days before stories first

appeared about Mark McGwire’s use of andros

tenedione, then-Milwaukee Brewers manager Phil

Garner told a reporter of his first-hand

knowledge of a player’s steroid use:

There was one kid, 27, who was cycli

ng steroids, and I asked him, ‘Do

you realize you could need an artific

ial heart when you’re 40 years

old?’. . . He said, ‘I don’t care what ha

ppens at 40. All I want to do is be

the biggest, baddest, guy I can be right now.’

229

In his interview with our i

nvestigation, Garner acknowledged

that he had known one major

league player who used steroids

while playing for him, but Garner refused to identify the player

because it was more than five years prior to th

e interview and Garner did not believe it was

necessary for this investigation to

look that far back in time.

In the same August 1998 article, Mike Sp

inelli, a former Boston Red Sox minor

league player, admitted his use of steroids and

was quoted as having said:

“I just thank God I

was able to get out of this . .

. before it killed me.” The articl

e noted the lack of a drug-testing

program in baseball and reported that “some

say, anonymously, that about 30 percent of the

hitters include [steroids] in their muscle-building program.”

230

229

Alan Truex,

The Creatine Craze / Steroids Mortgage Future for Muscles

Glory

Hous. Chron., Aug. 11, 1998, at A1.

230

Id.

V. Androstenedione and Base

ball’s Broadening Awareness

of the Use of Performance Enhancing Substances

In late August 1998, Steve Wilstein, an

Associated Press reporter who was

following Mark McGwire’s progress toward a

new single-season home run record, noticed a

bottle in McGwire’s locker labeled “Androstene

dione.” The ensuing AP news story led to

renewed scrutiny of the use of “andro” and othe

r substances by major le

ague players. As

previously mentioned, Commissioner

Selig and others in baseball ha

ve said that this incident

more than any other caused them to focus on the use of performance enhancing substances as a

possible problem.

231

Androstenedione is a steroid hormone pr

oduced in the body, where it is converted

into testosterone.

232

In 1998, “andro” was sold in the Unite

d States as a dietary supplement and

was available without a prescription. The use of

andro was not illegal in the United States, nor

was it a prohibited substance under baseball’s drug policy at the time.

233

There was debate,

however, about whether androstene

dione should be considered an

anabolic steroid. In 1998, it

already was classified as su

ch under Canadian drug laws,

234

and the National Football League,

231

See

Restoring Faith in America’s Pastime:

Evaluating Major League Baseball’s

Efforts to Eradicate Steroid Use: Hear

ing Before the H. Comm. on Gov’t Reform, 109

Cong.

277, 333 (2005) (statement of Allan H. Selig, Commissioner, Major League Baseball);

id.

at 324

(statement of Sandy Alderson, then-executive

vice president for baseball operations, Major

League Baseball).

232

Benjamin Z. Leder,

et al.

Oral Androstenedione

Administration and Serum

Testosterone Concentrations in Young Men

, 283 JAMA 779, 779 (2000). As a result,

androstenedione is referred to as a steroid “precursor.”

233

The Dietary Supplement Health and Educa

tion Act of 1994 expanded the definition of

“dietary supplements,” eased restrictions on the sale of certain dietary supplements and placed

limitations on the claims that could be made as to

the potential benefits of

using such substances.

See

Pub. L. 103-417, 108 Stat. 4325 (1994) (codified at 21 U.S.C. § 321).

234

See

Randy Starkman,

East Germans Pioneered the Us

e of “Andro,” Swimmer: “It

was like a volcanic eruption

,” Toronto Star, Aug. 25, 1998, at C2

(noting that androstenedione

was then classified as an anabolic steroid under

Canada’s Controlled Drug and Substances Act).

the International Olympic Committee, and the National Collegiate Athletic Association all

banned the substance because of its anabolic effects.

235

Patrick Arnold, the

Illinois scientist who

later allegedly developed “the clear,” the designer

steroid at the center of

the BALCO scandal, is

credited with being the “father of andros

tenedione production in the United States.”

236

When Mark McGwire first was asked about

the bottle of androstenedione in his

locker, he is reported to have admitted using it, as well as the over-the-counter amino acid

supplement creatine, to a

ssist his workout regimen.

237

McGwire was quoted as having said:

“Everything I’ve done is natural. Everybody that I know in the game

of baseball uses the same

stuff I use.”

238

He also reportedly stated that “[i

]f somebody tells me that it’s illegal and

I shouldn’t be taking it, I will stop.”

239

The initial public comments from ot

hers in baseball generally supported

McGwire, with players noting that andro was lega

l and not prohibited in Major League Baseball

and observing that McGwire always

had been a power hitter and

that strength alone could not

account for his home run hitting prowess.

240

St. Louis Cardinals manager Tony La Russa viewed

the AP story as an invasion of McGwire’s privacy

and said that he w

ould seek to have AP

235

Kirk Johnson,

As Drugs in Sports Proliferate, So Do Ethical Questions, N.Y. Times,

Aug. 31, 1998, at C1.

236

Id.

237

Steve Wilstein,

McGwire Defends Use of Pill Designed to Build Muscle

, Associated

Press, Aug. 22, 1998.

238

Id.

239

Joe Drape,

McGwire Admits Taking Controversial Substance

, N.Y. Times, Aug. 22,

1998, at C3.

240

See, e.g.,

Buster Olney,

Opponents Don’t Fault McGwire for Pills

, N.Y. Times,

Aug. 5, 1998, at C3;

Mike Rutsey,

Strength Drug No Big Deal to Jays

, Toronto Sun, Aug. 23,

1998, at Sports 4 (quoting Jose Canseco and repo

rting that Canseco wa

s an “androstenedione

user himself”).

reporters banned from the Cardinals’ clubhouse.

241

The Cardinals organization issued a

statement that the club did not object to McGwi

re’s use of the supplement because it had “no

proven anabolic effects nor

significant side effects.”

242

Commissioner Selig told me that he was

not aware of andro before the AP story was publis

hed, but shortly thereafter he visited his local

pharmacy in Milwaukee where the pharmacist dir

ected him to the bottles of the substance that

were openly for sale on the shelves.

Coverage of McGwire’s use of androstenedione continued for several days after

the initial story, with a number of articles

questioning whether it woul

d taint the single-season

home run record. On August 26, 1998, Commis

sioner Selig and Don Fehr of the Players

Association issued a joint statem

ent in which they stated that the two organizations had asked

their medical experts to “gather th

e relevant scientific and medical

data and to consult with other

experts on the general use

of nutritional supplements by major league players.”

243

Dr. Lewis Maharam, a prominent sports

medicine practitioner who is now the

race doctor for the New York City Marathon, was

a vocal critic, saying that “[i]f McGwire is

truly taking this, then he’s chea

ting.” He criticized McGwire

for failing to warn young athletes

about the dangers of using andro.

244

Sometime thereafter, Dr. Maharam received a call from

241

See

Bernie Miklasz,

AP Story Infuriates La Russa

, St. Louis Post-Dispatch, Aug. 24,

1998, at C1. La Russa told us that he told McGwi

re privately at the time

that he thought it was a

shame that the media was trying to take away

from his accomplishments. La Russa added that

the fact that McGwire’s bottle of

andro was left in plain sight

underscored the fact that McGwire

had nothing to hide about his use of the substance.

242

See

William C. Rhoden,

Sports of the Times: Basebal

l’s Pandora’s Box Cracks Open

N.Y. Times, Aug. 25, 1998, at C1.

243

See

Murray Chass,

Baseball Tries to Calm Down A Debate on Pills

, N.Y. Times,

Aug. 27, 1998, at C1.

244

See

Tom Keegan,

Slugger’s Little Helper Falls Fair

, N.Y. Post, Aug. 24, 1998, at 7;

Kirk Johnson,

As Drugs in Sports Proliferate, So Do Ethical Questions

, N.Y. Times, Aug. 31,

1998, at C1.

Dr. Robert Millman, a physician who at the time al

so served as the medical director for Major

League Baseball.

During the call, Dr. Maharam said in an interview, Dr. Millman told him that

“everyone in Major League Baseball is irritated with you” and that “if you don’t shut up, they are

going to sue you.” Dr. Maharam was unfazed, but a

week later he received a second call in

which Dr. Millman told him that if he was willi

ng to “shut up in the press,” he would be invited

to make a presentation to Major

League Baseball and the Player

s Association about the dangers

of steroids and andro. Two weeks later,

Dr. Maharam made a one-hour presentation to

Dr. Millman, another official from Major League

Baseball, and Dr. Joel Solomon, the medical

director for the Players Association. Dr. Ma

haram recalled that, at the conclusion of the

meeting, Dr. Millman expressed the view that th

ere was not sufficient medical evidence that

andro raised testoster

one levels enough to be a cause for concern.

During baseball’s winter meetings in

Nashville in December 1998, baseball

executives and team physicians heard a presen

tation from Dr. Millman and Dr. Solomon on

baseball’s drug policy. One attendee, Dr. William Wilder, was then the team doctor for the

Cleveland Indians. In a memorandum to then In

dians general manager John Hart that he wrote

after the meeting, Dr. Wilder reported that the pr

esentation focused on the be

nefits that could be

obtained from testosterone. He

was disturbed by the presentation, observing in the memorandum

that whether or not testosterone

increased muscle strength an

d endurance “begs the question of

whether it should be used in athletics.” He be

lieved there was “no reason that some preliminary

literature can’t be sent out to the player

s concerning the known and unknown data about

performance enhancing substances,” and reca

lled that Houston Astros’ team physician Bill

Bryan presented a good overview of

these issues with respect to

supplements at meetings the

previous year.

245

Dr. Wilder reiterated these observations

and views in our interview with him.

Bill Stoneman, who retired in 2007 as the

general manager of the Los Angeles

Angels, had a similar recollection of a pres

entation by Drs. Millman and Solomon. He

remembered wondering at the time why Major L

eague Baseball had permitted the presentation,

which to his recollection included the assertion that

there was no evidence that anabolic steroids

were bad for you. He said that the baseball execu

tives in attendance were universally frustrated

with the message of leniency that was being conveyed.

At the meeting, Dr. Wilder discussed the

issues directly with

Gene Orza of the

Players Association, who responded

that any effort at educati

on about supplements should wait

until additional data were available. Wilder obs

erved in his report that “That will be never!

Orza and the Players Association want to

do further study . . . so nothing will be done.”

246

After the events of the

1998 season, Major League Ba

seball and the Players

Association jointly funded a grant for a me

dical study to determine whether ingesting

androstenedione tablets would ra

ise testosterone levels in you

ng adult males. Some had the

same reaction to the study that Dr. Wilder ha

d, viewing it as a stalling tactic that allowed

widespread use of andro to cont

inue in Major League Baseball despite growing concerns about

its safety. A 1999 article cited Orza and others

in concluding that

“a good number” of major

league players – and as many as 5% to 10% by

some estimates – were using the supplement a

year after the Mc

Gwire story broke.

247

The androstenedione study was conducted by several

245

See

Memorandum from Dr. William Wilder to

John Hart, dated Jan. 21, 1998, at 1-2.

246

Id.

247

See

Bill Pennington and Jack Curry,

Andro Hangs in a Quiet Limbo

, N.Y. Times,

July 11, 1999, at Sports 1.

prominent endocrinologists who concluded in a

paper published in early

2000 that taking certain

doses of oral androstenedione di

d, indeed, increase serum testoste

rone and other hormone levels

in healthy men.

248

The day that the results of the study

were reported, Dr. Maharam wrote to

Dr. Millman, urging Major League Baseball to ban andro to set an example for young athletes.

After several months had passed and he had

not received any respons

e to that letter,

Dr. Maharam wrote a second letter

in which he offered his assi

stance to develop a steroids

awareness program for baseball players.

Thereafter, Dr. Maharam told us, he rece

ived a telephone call from Dr. Millman.

Dr. Millman said that he was very proud

of the andro study. He reported that the

Commissioner’s Office was in the process of banni

ng the use of androstene

dione in baseball’s

minor leagues but that the Players Association ob

jected to a similar ban for players on major

league rosters. At Dr. Millman’s invitation,

Dr. Maharam visited a number of minor league

clubs in Florida to discuss the hazards associated

with the use of steroi

ds and androstenedione

and explain why andro was being

banned in the minor leagues.

As noted above, the 2002 Basic Agreem

ent included for the first time a

mandatory random drug testing program in Major L

eague Baseball. It also banned the use of

anabolic steroids by players on the 40-man roster

s of the major league clubs. However, that

agreement did not prohibit the use of androste

nedione, despite the conc

lusion of the study two

years earlier that andro raised te

stosterone levels. Instead, the pa

rties agreed “tha

t they [would]

encourage Congress to revisit the question whet

her androstenedione should be categorized a

248

Benjamin Z. Leder, et al.,

Oral Androstenedione

Administration and Serum

Testosterone Concentrations in Young Men

, 283 JAMA 779, 782 (2000);

see

John Fauber,

“Andro” pill found to increase testosterone like anabolic steroid

, Milwaukee J. Sentinel, Feb. 9,

2000, at A1.

Schedule III substance,” which would result in

including andro among the program’s prohibited

substances.

249

That year, however, andro was added to

the list of prohibited substances under the

minor league drug program.

250

In January 2004, the United States An

ti-Doping Agency announced that Derrick

Turnbow, a pitcher who then played for the Anah

eim Angels, failed a drug test administered

during training camp for the U.S. Olympic base

ball team the previous October. In its

announcement, USADA said that Turnbow had test

ed positive for “a steroid violation, which

resulted from taking nandrolone, nora

ndrostenedione or norandrostenediol.”

251

Turnbow was subjected to a two-year ba

n from international competition, but he

was not disciplined under the

Major League Baseball joint drug program. According to

statements by Gene Orza, chief operating officer of the Players Association, Turnbow had tested

positive as the result of taking androstenedione,

which was not a prohibited substance under the

Major League Baseball joint drug program at the

time. Orza reportedly said: “Derrick Turnbow

did not test positive for a steroid. He tested

positive for what the [International Olympic

Committee] and others rega

rd as a steroid, but the

U.S. government does not.”

252

Later in 2004, Congress passed the Anabolic Steroids Control Act of 2004, under

which (among other things) the

definition of anabolic steroids was amended to include

androstenedione and other substances, which th

ereby were added to Schedule III of the

249

See

Major League Baseball

’s Joint Drug Prevention and Treatment Program,

§ 2(C)(2) (2002).

250

See

Memorandum from Commissioner Selig

to All General Managers, Farm

Directors, Club Physicians and Employee Assist

ance Professionals Re: Minor League Drug and

Steroid Testing, dated Jan. 2, 2002.

251

See

Associated Press,

Pitcher receives two-year international ban

, espn.com, Jan. 6,

2004.

252

Id.

Controlled Substances Act.

253

As a result, those substances automatically became substances

that were banned under the Major League Baseball joint drug program.

In the spring of 2006, s

hortly after this inve

stigation was announced,

Dr. Maharam received another call from Dr. Mill

man, who was by then no longer affiliated with

Major League Baseball. According to Dr. Maharam,

during that call, he said that he planned to

speak with Senator Mitchell’s investigative team.

Dr. Millman replied that he should be careful

what he said about Major League Baseball becau

se “[t]hey have a lot of power.” Dr. Millman

did not respond to repeated requests by telephone and

in writing to be intervie

wed as part of this

investigation.

In his memoir

Juiced

, Jose Canseco discussed th

e 1998 andro story and made

repeated allegations about McGwire

’s use of steroids. Canseco

asserted that he was treated

differently than McGwire because of his C

uban heritage even though, according to Canseco,

both he and McGwire allegedl

y used steroids to enha

nce their performance.

After Canseco’s allegations about Mc

Gwire appeared, the House Committee on

Government Reform included both McGwire and

Canseco among the current or former players

that it subpoenaed to appear for a hearing he

ld on March 17, 2005. At

the hearing, McGwire

said that he would not “dignify

Mr. Canseco’s book” with a re

sponse and that his lawyers had

advised him that “I cannot answer these questio

ns [about steroids use

in baseball] without

jeopardizing my friends, my family and myself.”

254

McGwire refused to answer a number of

253

Anabolic Steroid Control Act of 2004, Pub. L. No. 108-358, 118 Stat. 1661

§ 2(a)(1)(B) (2004) (codified

as amended at 21 U.S.C. § 802-11). As noted above, the

androstenedione precursor DHEA was excluded

from the amendment and therefore was not

added as a prohibited substance under the program.

See supra

at 24.

254

Restoring Faith in America’s Pastime:

Evaluating Major League Baseball’s Efforts

to Eradicate Steroid Use: Hearing

Before the H. Comm. on Gov’t Reform, 109

Cong. 220

(2005

specific questions from members of the committee,

stating repeatedly that he was “not here to

talk about the past.”

255

His testimony, broadcast live on tele

vision, was widely criticized. Many

writers later expressed the view

that McGwire’s lack of candor wa

s a significant reason for his

surprisingly low vote total in early

2007 in his first year of eligib

ility for election to the National

Baseball Hall of Fame.

256

During the course of this

investigation, we interviewe

d a number of coaches, club

personnel, former teammates, and other pe

rsons who know McGwire. Only Canseco, who

repeated the allegations from his memoir, said

he had knowledge of McGwire’s alleged use of

steroids. Through his personal lawyer, I asked McGwire to meet with me for an interview about

these issues, but he declined to do so. I then se

nt his lawyer a list of

specific questions about

whether McGwire had ever used steroids or ot

her performance enhanci

ng substances without a

prescription during his major league career, in

the hope that McGwire

would be willing to

provide a response outside of th

e context of an interview.

Neither McGwire nor his lawyer

responded to that letter. (I sent

similar letters with specific ques

tions to lawyers for Barry Bonds,

Rafael Palmeiro, Sammy Sosa, and Gary She

ffield, none of whom pr

ovided answers to my

questions either.)

255

Id.

at 242-43, 264, 266, 273.

256

See, e.g.,

Jack Curry,

2 Stars Leap to Hall of Fame, But Steroid Cloud Stops 3rd

N.Y. Times, Jan. 10, 2007, at A1.

VI. Incidents Providing Evidence to

Baseball Officials of Players’

Possession or Use of Performance Enhancing Substances

The September 2003 raid by federal agen

ts on the offices of the Bay Area

Laboratory Co-Operative, discusse

d in the next chapter, marked another turning point in the

general awareness of illegal pe

rformance enhancing substance use in Major League Baseball.

Both before and after that raid, however, a

number of other less prominent or unpublicized

incidents placed evidence of that conduct in front of officials in the

Commissioner’s Office, the

Players Association, and some of the thirty clubs.

In some incidents, club personnel did not

report evidence to the Commissioner’s

Office of a player’s possible involvement with

performance enhancing substances but instead

simply disposed of the evidence. Most often, ho

wever, evidence was reported. The responses to

the incidents by the senior officials in the Commissioner’s Office

who were responsible for these

issues evolved over the years from 2000 to the

present. In responding

to earlier incidents,

baseball officials appear to have been focu

sed on maintaining labor peace with the Players

Association and keeping information about a

player’s potential i

nvolvement with these

substances out of the press. Many of the earlier

incidents were not investigated vigorously or, in

some cases, at all.

Instead, in earlier incidents during th

is period, over 25 players who were

implicated in the potential use

of illegal drugs were subjected

to informal “reasonable cause”

drug testing for performance enha

ncing substances. The tests – when they occurred – were

administered only after extended negotiations w

ith the Players Association, a process that

virtually guaranteed a negative test result. No

major league player ever tested positive for

steroids or any other performance enhancing substa

nce in any of these tests. In addition, under

the informal arrangement with

the Players Association under

which these “reasonable cause”

tests were administered, the Co

mmissioner’s Office gave up the ability to interview a suspected

player in exchange for the agreement to subject

that player to a “reasonable cause” test.

With few exceptions, until recently active major league players have not been

interviewed by baseball officials about the alleged use of steroids or other performance

enhancing substances. Under the Basic Agreem

ent, the Players Association is entitled to

advance notice of a

ny player interview.

257

According to Kevin Hallinan, baseball’s director of

security for 21 years before his retirement

in November 2007, the Players Association has

resisted efforts to interview pl

ayers in connection with allegati

ons about steroid use even though

it has permitted interviews of players in other contexts.

At the same time, the Commissioner’s Office rarely pressed for such interviews,

for several reasons. First, they

believed that the Players Associ

ation would resist investigatory

interviews based on its reading of the Ferguson Je

nkins arbitration decisio

n. Aggressive pursuit

of evidence of illegal performance enhancing subs

tance use might have threatened to further

destabilize already difficult relations between club

owners and the Players Association. During

the decade when the use of performance enhancing substances grew dramatically in Major

League Baseball, the game was recovering from

a work stoppage that

shortened the 1994 season

and resulted in cancellation of the World Series.

Many of the economic ch

allenges that led to

that stoppage continued after play resumed a

nd a new collective bargaining agreement was

signed. In this larger context,

preventing the use of steroids

and other illegal performance

enhancing substances in professi

onal baseball received a

lower priority than

economic matters.

Second, some senior baseball official

s doubted the usefulness of player

interviews. In the words of Rob Manfred,

executive vice president for labor relations,

257

See, e.g.,

2007 Basic Agreement Between the 30

Major League Clubs and the Major

League Baseball Players Association, Ar

t. XII(E) (notice of interviews).

“interviewing players is not a pr

oductive exercise – ther

e are no rats and players are not going to

confess.” Manfred explained that “baseball is di

fferent from other industries because of the team

mentality. These guys live togeth

er for 220 days a year.” This, in Manfred’s view, is the root

cause of baseball’s clubhouse “code of silence.

” It is a view shar

ed by many of those we

interviewed in this investigation.

In the course of this investigation, ex

amples of the “code of silence” were

abundant. A number of witnesses, for example,

claimed that they knew nothing about steroids,

never saw anything involving steroi

ds, and had never even heard the word “steroids” used in a

major league clubhouse, not even in connection w

ith such high-profile is

sues as the leaked

BALCO grand jury testimony, the publicity abou

t Barry Bonds, the March 2005 congressional

hearings, Rafael Palmeiro’s failed drug test ther

eafter, or the Jason Gr

imsley search warrant

affidavit in June 2006.

In our interview of him, one former play

er told of annual players-only meetings

during which teammates reminded one another that

any personal informati

on they learned during

the season needed to be kept in “the family.”

He said that players understood that a failure to

abide by this unwritten rule w

ould sound the death knell for their careers. Through his lawyer,

another former player who admitted his own use of performance enhancing substances claimed

that his career as a major league coach would be

harmed “perhaps fatally” if he were required to

identify other players who had admitted to him that they had used steroids.

Interviews of non-player employees, a

nd of other witnesses who might have

knowledge of a player’s illegal

use of performance enhancing

substances, are not governed by

baseball’s collective bargaining agreement (which

applies only to major league players) but are

still affected by the “code of silence.” Neverthe

less, in the instances in which investigations

included interviews of such witnesses, baseball o

fficials were able to learn important information

about the potential sources of illegal performan

ce enhancing substances for players in Major

League Baseball.

More recently, after this investigation

began, the Commissioner’s Office – with

the consent of the Players Asso

ciation – has interviewed severa

l active players who have been

mentioned in reports about law enforcement inve

stigations relating to

illegal distribution of

steroids and human growth hormone. This emer

ging practice, which was followed as to several

players during 2007, suggests that a new approach

has developed. It is an improvement over

past practice.

Whatever the underlying reasoning, in hindsig

ht it is likely that baseball’s less

than vigorous response to earlier incidents resu

lted in some missed opportunities to learn more

about the illegal use of performance enhanci

ng substances in profe

ssional baseball and the

sources of those substances. At the same time

, reviewing these incidents chronologically shows

a clear evolution in the appro

ach followed when evidence emer

ged of a player’s involvement

with those substances, demonstrating an increasi

ng responsiveness to the issue as awareness was

heightened by the BALCO investigation a

nd subsequent law enforcement efforts.

I asked to meet with all of the players

about whom allegations of their possession

or use of performance enhancing substances are di

scussed in this chapter in order to provide

them with information about those allegations an

d to give them an opport

unity to respond. With

few exceptions that are noted below, none of them agreed.

A. Operation Equine

In the summer of 1995, Special Agent Gregor

y Stejskal of the Federal Bureau of

Investigation attended a

seminar in Quantico, Virginia that

was also attended by officials from

Major League Baseball. There, Stejskal told us

, he met Kevin Hallinan, the senior vice president

for security in the Commissioner’s Office, who

he told about Operati

on Equine, a nationwide

investigation that he had been conducting since 1989 into the ille

gal distribution of steroids.

Stejskal said that he told Hallinan he had information that players in Major League Baseball,

including Jose Canseco, were illega

lly using anabolic steroids and

that he believed the illegal use

of steroids in base

ball was “pervasive.”

258

Hallinan told us that

he does not remember being

approached by Stejskal in 1995 and

asserts that he would have pr

essed Stejskal for information

on the subject if it had been raised with him then.

259

In June 2002, Stejskal called Hallinan to follow up on the issue. Hallinan asked

his deputy Martin Maguire to pursue the lead. In response, Maguire

spoke with Stejskal and also

with Curtis Wenzlaff, a convicted

steroids trafficker who had been

Stejskal’s informant. In his

phone interview with Maguire, Wenzlaff claimed to

have personally supplied steroids to a

number of major league players in the past,

including but not limited to Canseco. Maguire did

not create a record of his conversations with St

ejskal or with his informant, Wenzlaff, because,

he told us, the information did not specifically

implicate any players who were then active at the

major league level.

In our own interview of him, Wenzlaff ac

knowledged that he had dealt with 20 to

25 players in Major League Baseba

ll before he was convicted for

illegal distribution of steroids

in 1992. He was not willing to divulge to us th

e names of major league players to whom he

supplied steroids other than Canseco (who had by th

en admitted his own use). In our interview

258

See also

Christian Red, Michael

O’Keefe and T.J. Quinn,

FBI agent hits MLB on

‘roids

, N.Y. Daily News, Feb. 15, 2005, at 57.

259

See also

T.J.

Quinn, Michael O’Keef

e & Christian Red,

Bag Men: Gonzalez & traine

r linked to 2001 steroid

probe

, N.Y. Daily News, July 30, 2006, at 96. Clenbut

erol is not an anabo

lic steroid, but it is

who was present during the search, recognized the

bag as one that had been sent down to be

included with the luggage by Cleveland outfielder

Juan Gonzalez when the Indians left Kansas

City. On prior trips, Gonzalez had included ba

gs for members of his entourage with his own

bags, and Walsh had the impression that this was th

e case with some of the bags he sent down to

be packed for the Toronto flight.

The customs officials requested Walsh to bring all of the luggage except the bag

in question to the team hotel as normal, which he

did. The Indians reside

nt security agent, Jim

Davidson, who was traveling with the team because

of heightened security

after the attacks of

September 11, 2001, met with local law enforcemen

t officers in the hotel lobby. Mark Haynes,

the Canadian Border Service officer in charge

of the investigation, told Davidson that syringes

and anabolic steroids had been found in the bag a

nd that officers were going to replace the bag

with the Indians luggage to see who claimed

it. Haynes also opened the bag and showed

Davidson the hypodermic needles, am

pules, and other paraphernalia.

Thereafter, Davidson, Haynes, and other o

fficials watched the

luggage as Joshue

Perez, a member of Juan Gonzalez’s entourage,

claimed the duffel bag. With Davidson present,

Haynes and other officers took Perez to an antero

om, where he told them that the bag belonged

to Angel (“Nao”) Presinal, Gonzalez’s personal

trainer, who would be arriving in Toronto on a

later flight.

As soon as he arrived at the hotel, Pr

esinal was detained by law enforcement

officers. In an interview at the hotel, Presinal denied that the bag belonged to him and asserted

that it belonged to, and had been packed by, Gon

zalez. Haynes and Toronto police officers then

used by bodybuilders in the belief that it helps th

em to become leaner. It is a veterinary

medicine that is not approved for use by humans in the United States.

See

R.C. Kammerer,

Testing in Sport & Exercise

, in Performance-Enhancing Sub

stances in Sport & Exercise

323,

331 (Michael S. Bahrke and Ch

arles E. Yesalis eds. 2002).

went to Gonzalez’s room to question him about

the bag. Although he had been present for the

interview of Presinal, Davidson wa

s not invited to attend the interv

iew of Gonzalez. After that

interview, Haynes reported that Gonzalez had de

nied any knowledge about the bag’s contents

and claimed that he had sent it

down to be included with the team

’s luggage at Presinal’s request.

According to Davidson’s account of the incident, during further questioning

Presinal admitted that he had packed the steroids

but claimed that he carried them for Gonzalez,

whom he helped to administer them. Davidson

reported that Presinal also claimed to have

assisted several other high-profile

major league players in taking

steroids. In our interview of

him in 2007, Presinal denied that

he made any such statements.

He asserted that he has no

knowledge of the involvement of an

y player in Major League Baseba

ll with anabolic steroids or

other performance enhancing substances.

The next day, Davidson and Toronto’s resi

dent security agent Wayne Cotgreave

had a conference call with Kevin Hallinan of th

e Commissioner’s Office’s security department

and members of his staff. Hallinan said that the matter would be handled from the

Commissioner’s Office in New Yo

rk. Although Hallinan told Davi

dson that his office would

investigate the matter, there is no evidence that

such an investigation ever was conducted beyond

a search for Presinal’s Cleveland address.

None of the eyewitnesses whom we interviewed

during the course of our invest

igation was contacted by anyone

about the incident until a news

report about it appeared in July

2006. Davidson was never asked to perform any follow-up work

with respect to the matter.

Rob Manfred told us that he did not

believe a strong case could be made for

“reasonable cause” testing of G

onzalez because of conflicting statements by Presinal, Gonzalez,

and others about who the bag and steroids belonged to. Manfred nevertheless contacted Gene

Orza of the Players Association about testing

Gonzalez, but Orza refused to agree in this

instance. Manfred did not ask Orza for the Pl

ayers Association’s permission to interview

Gonzalez because he thought su

ch an interview would be fruitless even if the Players

Association agreed to it.

According to the July 2006 article, Pr

esinal was “declared a pariah” by the

Commissioner’s Office after the events in Toronto

in 2001, an assertion that Hallinan repeated in

our interview of him.

267

By early in the 2002 season, however, Presinal was observed in and

around the clubhouse of the Texas Rangers (where

Juan Gonzalez was playing at the time).

Sign-in records indicate th

at Presinal was in the Rangers cl

ubhouse frequently that season. The

Rangers also reserved (but did not pay for) rooms

for Presinal at the club

’s hotels that season.

The Rangers’ general manager, John Hart, wa

s aware of the October 2001 incident and

Presinal’s alleged role in it, si

nce Hart joined the Rangers from

the Indians after the 2001 season

and supported the Rangers’ decision to sign Gon

zalez in 2002. In the summer of 2005, Presinal

was profiled by Bill Shaikin of the Los Angeles

Times for his in-season training of Bartolo

Colon of the Los Angeles Angels.

268

After Presinal was spotted in the Ra

ngers clubhouse in 2002, Major League

Baseball’s security department

alerted all clubs and removed Pres

inal from the Texas ballpark;

he also was removed from the ballpark in

Anaheim when he later was spotted there.

Presinal remains a prominent personal

trainer for a number of professional

baseball players, operating out of facilities in th

e Dominican Republic. He also has worked with

players during the season in the United States. He was selected by the Dominican Baseball

267

T.J. Quinn, Michael O’Keefe & Christian Red,

Bag Men: Gonzalez & trainer

linked to 2001 steroid probe

, N.Y. Daily News, July 30, 2006, at 96.

268

See

Bill Shaikin,

Colon Trying to Tip the Scales

, L.A. Times, July 12, 2005, at D6.

Federation to serve as a trainer for the Dominican Republic nati

onal team during the inaugural

World Baseball Classic in spri

ng 2006, which included on its roster a number of players and

coaches from Major League Baseball.

F. Bullpen Catcher Admits to Supplying Steroids to

Eight Major League Players, September 2002

On September 26, 2002, during a game agains

t the Florida Marlins at Montreal’s

Olympic Stadium, Montreal’s bullpen catcher Lu

is Perez asked a Marlins clubhouse attendant if

he would carry a duffel bag back to Florida fo

r him. The Marlins employee, who knew Perez

from his previous tenure as a bullpen catcher wi

th the Marlins, agreed. Perez later delivered a

large padlocked duffel bag to be included with

the Marlins luggage. Ma

rlins equipment manager

John Silverman was suspicious b

ecause of the padlock and direct

ed that the bag be opened.

When it was (using a combination that Perez pr

ovided), Silverman and the clubhouse attendant

discovered a box coated on the inside with pine

tar that contained

two plastic packages

amounting to one pound of marijuana.

The Montreal police were called. That

evening, Perez was interviewed by

telephone by Kevin Hallinan, the Commissioner’s se

nior vice president for security, and other

baseball officials, who advised that “the legal process should take its c

ourse and that [security]

would contact him once the authorities were co

mpleted with their work.” Montreal police

interviewed Perez and arrested him for possessio

n of marijuana. Perez ultimately received a

$5,000 fine for the violation.

After the criminal process had ended, Hallinan and his deputy, Martin Maguire,

traveled to Miami to interview Perez. Perez explained that during his time as a bullpen catcher

for the Florida Marlins, between 1998 until 2001, tw

o players asked if he could obtain steroids

for them. After he was successful in doing so, wo

rd spread and he became a source for players

100

to acquire steroids and other dr

ugs. Perez alleged that he ha

d witnessed widespread use of

steroids and other drugs. According to Hallinan’s memo, Perez told baseball officials “. . . that

virtually every player on the Ma

rlins was ‘doing something’ rangi

ng from steroids and greenies,

to marijuana, etc. He also claimed that every

pitcher in Montreal’s bullp

en was on some form of

steroid.”

Perez told Hallinan that when teams were in San Diego, players often crossed the

border into Mexico to obtain ill

egal substances. He said th

at he knew of clubhouse employees

with other teams who were similarly called upon to obtain drugs for players, including in

particular a visiting clubhous

e attendant in Philadelphia.

269

Perez also claimed that he was paid

as much as $500 by certain players to carry

their bags on trips to and from Canada.

At the conclusion of their interview of

him, Perez’s lawyer handed to Hallinan

and Maguire a typed list of players and their “dru

g of choice” that had been compiled by Perez.

The list identified eight players

(with the Marlins, Astros, and

Expos) for whom Perez personally

had acquired anabolic steroids,

in addition to identifying twelve

players for whom Perez had

obtained other drugs.

Hallinan and Maguire both said that they

regarded Perez as a credible witness.

Hallinan told us that the Perez incident could

have been the “single most important steroids

investigation” he conducted, but

to his disappointment he was not

given permission to interview

the major league players named by Perez.

We made a number of attempts to cont

act Perez, all without success. Because

neither I nor any member of my staff had the opp

ortunity to make our ow

n assessment of Perez’s

269

Based on Perez’s interview, Maguire late

r interviewed a Phillie

s clubhouse attendant

who denied that he had any involvement

in procuring drugs for players.

101

credibility, or to otherwise corr

oborate his statements, I have not

identified the players for whom

Perez allegedly obtained steroi

ds, with one exception discus

sed later in this report.

Although no players were interviewed about their alleged involvement with

steroids or other drugs after the Perez intervie

w, the players identified by Perez were evaluated

by Dr. Millman and Dr. Solomon, and thereafter those players were subjected to “reasonable

cause” drug tests. The tests were conducted long

after the allegations were

made. None of the

players tested positive for the use of performance enhancing substances.

G. Infielder Disciplined For

Steroids Shipment, July 2004

In early June 2004, an athletic trainer fo

r a minor league team opened a package

addressed to the team from anothe

r, affiliated team in the minor leagues. Inside he found a pair

of slightly worn shoes in which were packed batt

ing gloves and a pair of socks. Wrapped inside

one of the socks was a vial containing a white, m

ilky substance that was labeled in Spanish. The

trainer reported the discovery to the front office of his team’s major league affiliate, which

determined through a test that the substance was

stanozolol (Winstrol), an anabolic steroid.

The major league club immediately contacted their outside lawyer. He conducted

an investigation of the incident

in which he concluded that th

e substance had been shipped by

Player X, a minor league player who was on the major league club’s 40-man roster at the time.

(After the incident but before this investig

ation began, a settlement agreement was reached

among the Commissioner’s Office, the major le

ague club, and the Play

ers Association, under

which we are not permitted to identify Player X in this report).

102

The club’s lawyer prepared a memora

ndum describing his investigation and

findings, which he sent to Frank C

oonelly in the Commissioner’s Office.

270

Coonelly and Rob

Manfred decided to interview the player who wa

s the intended recipient of the package in the

first instance because, as a minor league player

, they could do so without notifying the Players

Association. That player “had no problem conf

irming immediately” that he had received the

package containing the steroids from Player X.

Coonelly then informed Mi

chael Weiner, the general

counsel of the Players

Association, that he and Manfre

d intended to interview Player X two days later. Coonelly also

informed Weiner that the Commissioner’s Office

was considering discip

linary action against

Player X. The next day, Weiner

objected to the interview on such

short notice and reported that

Player X did not consent

to be interviewed.

No interview was ever conducted of Player

X in connection with the matter. Nor

was Player X suspended. Instead, the Players Association entered into a settlement agreement

with the Commissioner’s Office under which Play

er X was separated immediately from his

minor league club and was provided

a first-class airplane ticket home. The settlement agreement

also provided that if Player X came to spring training in 2005, he would be required to submit to

a urine test for steroids, and if

that test was negative he woul

d thereafter be subject to the

standard drug testing program faced by all other players.

The settlement agreement required the major league club and the Commissioner’s

Office to keep its terms confidential and required

the club to report only that Player X had left

his team “for personal reasons.”

Player X had the right to void th

e settlement if any press report

270

In September 2007, Coonelly was hired as chief executive officer of the Pittsburgh

Pirates.

103

suggested that his departure fr

om the club was related to ster

oids (or any other “Prohibited

Substance” under the joint drug program).

H. Cooperation with Law Enforcement Investigation, Late 2004

Recent, well-publicized events have

shown the importance of cooperation

between sports leagues and law enforcement inve

stigations with respec

t to athlet

es’ use of

performance enhancing substances. The Commissi

oner’s Office has cooperated in at least one

such investigation before 2007.

Beginning in October 2004, se

nior officials in both the labor and security

departments of the Commissioner’s

Office cooperated with a law

enforcement investigation into

an individual who was allegedly involved in pr

oviding illegal performan

ce enhancing substances

to professional athletes and othe

rs. At the request of law enfor

cement officials, I am unable to

provide further details about the investigation, or

the cooperation of th

e Commissioner’s Office

with it, because the inve

stigation is

still ongoing.

I. Investigation Following Rafael Pa

lmeiro’s Positive Drug Test, May 2005

On August 1, 2005, Major League Baseball announced that Baltimore Orioles

first baseman and designated hitter Rafael Palmeiro

had violated the league’s joint drug program

and would be suspended for 10 games.

271

Palmeiro subsequently acknowledged that he had

tested positive for the anabolic steroid stanoz

olol, the generic name

for Winstrol, but he

repeatedly denied that he had ev

er “intentionally taken steroids.”

272

Palmeiro’s failed test result was until

that time the most newsworthy suspension

under the joint drug program, given his career

achievements. It prompted an immediate

271

Press Release, Major League Baseball,

Rafael Palmeiro Suspended 10 days

(Aug. 1,

2005).

272

See

Jack Curry,

Palmeiro Ends Silence on the Eve of a Report

, N.Y. Times, Nov. 10,

2005, at D1.

104

congressional investigation into whether Palmeiro

had committed perjury when he testified at a

March 17, 2005 hearing of the House Committee on Government Reform that:

Let me start by telling you this: I have never used steroids, period. I do

not know how to say it any more clearly

than that. Never. The reference

to me in Canseco’s book is absolutely false.

273

In his book,

Juiced

, Canseco claimed that he had persona

l knowledge that Palmeiro and two

other players illegally used ster

oids under his supervision shor

tly after he joined the Texas

Rangers in 1992.

274

The congressional investigation ultimately

concluded that it was impossible to

determine whether Palmeiro had been telling

the truth in his swor

n testimony because, among

other things, the four-week detection window for

Winstrol was not long enough to conclude that

Palmeiro had the steroid in his system at the time

of his testimony, given the

date of his urine test

in May 2005.

275

Of significance to our inve

stigation, however, was the

information learned during

the course of the congressional

investigation concerning the wide

spread and apparently open and

obvious self-administration, using hypodermic need

les, of an unregulated substance imported

from the Dominican Republic labeled as vitamin

B12. Congressional inve

stigators looked into

the issue because Palmeiro told them that he ha

d used injectable vitamin B12 provided to him by

273

H. Comm. on Gov’t Reform,

Report on Investigation Into Rafael Palmeiro’s

March 17, 2005 Testimony Before the Comm. on Gov’t Reform

, at 5 (109

Cong. 2005)

(“Palmeiro Report”).

274

Jose Canseco,

Juiced: Wild Times, Rampant ‘R

oids, Smash Hits and How Baseball

Got Big 135

(Regan Books 2005).

275

Palmeiro Report at 42.

105

his Orioles teammate Miguel Tejada and that th

is might have been the reason for his positive

steroid test.

276

According to the House Committee’s report,

Tejada told investigators that he

generally brought injectable vitamin B12 with him

to the United States when he returned each

season from the Dominican Republic.

277

Tejada said that he gave vitamin B12 to three

teammates during the 2005 season, Palmeiro and Play

ers A and B. In his

own interview with the

congressional investigation, Pl

ayer A said that he injected Tejada with vitamin B12

approximately 40-45 times during the 2004 season

and approximately 30-35 times during the

2005 season until July, when he decided to stop doing so.

278

Larry Bigbie, a former Orioles player w

ho we interviewed in our investigation,

confirmed that he observed Tejada injecti

ng himself with vitamin B12 in the clubhouse

restroom.

279

The report that four players on a major

league team were self-administering an

injectable substance should have been a cause

of concern, even if the

players said that the

substance they were inje

cting into themselves was vitamin B

12. Indeed, the presence of syringes

in a major league clubhouse, by itself, should ha

ve been a cause of significant concern.

276

Id.

at 19-20. During the arbitration challeng

ing the positive steroid test, Palmeiro had

testified about receiving the vitamin B12 but did

not assert that he belie

ved it was the reason for

his positive drug test.

Id.

at 11.

277

Id.

at 25.

278

Id.

at 30. Player A gave the investigators

a vial of the vitamin B12 that he had

received from Tejada, which was tested and

found not to contain any banned substances.

Id.

at 31.

279

Bigbie also told us that

he had conversations with Pa

lmeiro while they were both

playing with the Orioles in which Palmeiro as

ked him about his source

of steroids and human

growth hormone (the source was Kirk Radomski)

and how the substances made him feel. Bigbie

said that Palmeiro denied in those conversations

that he had ever used performance enhancing

substances himself.

106

During the summer of 2005, Tejada met

with representatives from both the

Players Association and the Commissioner’s Offi

ce, who told him he should stop injecting

himself with vitamin B12 and take the vitamin in pill form instead.

280

J. 50-Game Suspension of Jason Grimsley for Reported Admissions

of Human Growth Hormone Use, Summer 2006

On April 19, 2006, Arizona Diamondbacks pitcher Jason Grimsley received a

package in the mail at his home in Scottsdale

, Arizona that containe

d two “kits” of human

growth hormone.

281

Federal agents monitored the deliv

ery and were prepared to execute a

search warrant for Grimsley’s home, but accordin

g to a later affidavit, Grimsley chose to

cooperate with the agents instead and submitted to a two-hour interview at another location.

During the interview, Grimsley made admissions

about his own use and purchases of steroids,

human growth hormone, and clenbuterol. He

also said that since drug testing had been

implemented in Major League Baseball he had only used human growth hormone.

282

Grimsley later decided to stop coopera

ting with federal investigators, who

thereafter obtained a search warrant for his Ar

izona residence. On June 6, 2006, federal agents

executed the search warrant. The ne

xt day, the Diamondbacks released him.

283

Numerous

articles appeared over the followi

ng days about the statements Gr

imsley reportedly had made in

his interview with federal agents, which were recounted in an affidavit that was submitted to a

federal magistrate judge in order to obtain th

e later search warrant. In news reports the

280

Palmeiro Report at 27-28.

281

See

Redacted Affidavit of I.R.S. Special

Agent Jeff Novitzky, sworn to on May 31,

2006, ¶ 2. A “kit” of human growth hormone contains seven vials of lypholized HGH powder

and seven vials of sterile water.

Id.

, ¶ 12.

282

Id.

, ¶¶ 2, 16.

283

See

Jack Curry,

What a Player Will Do

to Extend His Career, N.Y. Times, June 8,

2006, at D5.

107

Diamondbacks’ managing general partner was qu

oted stating that the Diamondbacks were

planning to file papers with the Commissioner’s

Office to terminate Grimsley’s contract because

he was “unfit to play.”

284

The Commissioner asked Grimsley to app

ear for an interview “to deny and/or

explain the statements that you ga

ve to federal investigators.”

285

Through the Players

Association, he refused. On June 12, 2006, the

Commissioner suspended

Grimsley for 50 games

without pay, to take effect if he ever returned to Major Leag

ue Baseball. The suspension was

based on Grimsley’s reported admissions to federa

l agents of his possession, use, and intent to

use human growth hormone, as detailed

in the search warrant affidavit.

286

At the time, the Major League Baseball joint drug program did not provide for

discipline based on “non-analytic evidence” (that is

, evidence of use that is not derived from

sources other than a drug test) of

the use of prohibited substances.

287

In suspending Grimsley,

therefore, the Commissioner relie

d on his general authority under the Basic Agreement to impose

discipline in the “best interests of baseball,” whic

h (subject to the requirement that discipline be

based on “just cause”) had been the basis for

drug-related suspensions

before the joint drug

program was added to the Basic Agreement in 2002.

284

See

Bob McManaman,

Kendrick Lashes Out at Grimsley

, Ariz. Republic, June 11,

2006, at C7.

285

Letter from Allan H. Selig to Jason Grimsley, dated June 12, 2006.

286

Id.

;

see also

Jack Curry,

Grimsley Receives 50-Game Suspension

, N.Y. Times,

June 13, 2006, at D1.

287

See

Major League Baseball’s

Joint Drug Prevention and Treatment Program (2006),

§ 8. Suspensions can be imposed under the expr

ess provisions of the program: for failed drug

tests; for failure to comply with a prior tr

eatment program; for a conviction or guilty plea

involving the possession or use of

a prohibited substance; or for

participating in the sale or

distribution of a pr

ohibited substance.

108

The Players Association said it would

file grievances challenging both the

threatened termination of Grimsley’s contra

ct by the Diamondbacks a

nd the Commissioner’s 50-

game suspension of him. Negotiations followed, and a settlement was reached between the

Players Association and the Commissioner’s O

ffice, which also acted on behalf of the

Diamondbacks. Under the settlement, the salary that

Grimsley would have lost as the result of

the 50-game suspension was retained by the Diamondb

acks, which agreed to donate it to charity.

Grimsley was paid the salary remaining due under

the contract, and he also

agreed to donate the

funds to charity.

288

In the settlement, the Players Associa

tion and the Commissi

oner’s Office also

agreed to two statements as binding precedent

under the joint drug program: the Players

Association agreed that the imposition of

a 50-game suspension under the circumstances

presented was permissible; and the Commissioner’s

Office agreed that a club’s termination of a

player contract under the circumstances woul

d be a violation of the joint drug program.

289

K. Procedures Followed for Players Implic

ated in Recent Government Investigations

As will be discussed in more detail be

low, during 2007 a number of current major

league players have been identified in news

reports for allegedly purchasing performance

enhancing substances from com

pounding pharmacies that are the

focus of state and federal

criminal investigations, or from anti-aging clin

ics that work with those pharmacies. Beginning

in September 2007, the Commissioner’s Office has

required several of the players who have

been the subject of these reports to be interviewe

d about the allegations that

have appeared in the

press.

288

See

Letter Agreement between Francis X. C

oonelly and Michael S. Weiner Re: Jason

Grimsley and the Arizona Diamondbacks and th

e Office of the Commi

ssioner, dated Aug. 7,

2006.

289

Id.

109

Neither I nor members of my investigative staff attended those interviews.

I asked to interview each of the players who was

interviewed as a result of these news reports,

but they either declined

or did not respond to me.

L. Unreported Incidents

During this investigation we learned of a

number of other instances in which club

personnel came across potential ev

idence of a player’s use of steroids or other performance

enhancing substances but did not report that ev

idence as required by baseball’s drug policy.

Those unreported incident

s included the following.

In 1999, Barry Waters, the director of team travel for the Houston Astros,

received a telephone call from an

employee of a hotel where the Astros had just stayed, reporting

that a package had arrived at the hotel addressed to an alias that was used by Ken Caminiti, who

then played for Houston. The hotel forwarde

d the package to Waters

, who opened it and found

glass vials containing a wh

ite liquid that he believed to be an

abolic steroids and pills that he

believed to be vitamins.

Waters did not deliver the vials to Cami

niti, but believing incorrectly that there

was no policy requiring him to report the incident,

he did not report the ma

tter to anyone else

with the Astros or to the Commissioner’s Offi

ce. Caminiti later admitted that he had used

steroids during his playing career in

a widely read Sports Illustrate

d article that was published in

June 2002.

290

During either the 1998 or 1999 season, a

clubhouse employee with the San Diego

Padres was walking through the

players’ clubhouse when he sa

w two players standing huddled

over, and looking into, a small box. The Padres

employee overheard on

e of the players say

290

See

Tom Verducci,

Totally Juiced

, Sports Illustrated, June 3, 2002, at 34.

110

“Winstrol.” When the players

noticed him watching them, they

put the box away and walked

away. The Padres employee did not report the incident.

In 1999 or 2000, Chuck Hawke, an attendant

working in the visiting clubhouse in

Kansas City, found syringes and vials that were hi

dden in an Oakley sunglasses bag when he was

unpacking luggage for David Segui. Hawke brought

the situation to the attention of his

supervisor, but after discussing the incident they

decided to replace the materials where he had

found them and did not report

the incident to anyone.

A second incident involving Se

gui also was not reported. It occurred when he

was playing with the Baltimore Orioles in Sept

ember 2004. In a conversat

ion with Orioles co-

general manager Jim Beattie, Segui said that

he wanted to see a doctor who had given him

human growth hormone and monitored his blood

levels. Beattie said he had no knowledge of

Segui’s alleged human growth hor

mone use prior to this convers

ation. Beattie’s co-general

manager Mike Flanagan confirmed that Beattie in

formed him that Segui was “going to Florida to

get human growth hormone.”

No one in the Orioles organization repor

ted Segui’s admission of human growth

hormone use to the Commissioner’s Office. Se

gui has since admitted that use publicly.

In 2000 or 2001, a visiting clubhouse manage

r working for the Minnesota Twins

found a used syringe on top of a trash can in the

visitors’ clubhouse. He brought the incident to

the attention of the Twins manager, Tom Kelly, who told him to dispose of the syringe and to be

careful doing so. Kelly confirmed the incident a

nd said that he did not

report the incident to

anyone because he felt it “wasn’t any of [his] busin

ess” and that it was the other team’s issue to

address.

111

In an article in 2006, a similar story was

recounted by Paxton Crawford, a pitcher

who was on the roster of the Boston Red Sox

in 2000 and 2001. Crawford admitted to using

steroids and human growth hormone

while with the Red Sox. He described an incident in which

syringes he had wrapped in a towel were spille

d onto the floor of the Red Sox clubhouse, which

he said caused laughter among his teammates.

291

Crawford declined our request for an

interview, saying that he did not

“do that stuff anymore,” that

he was sorry he had used those

substances in the past and that he

just wanted to be left alone. In

the course of this investigation,

we interviewed 23 individuals who are, or had

been, affiliated with the Red Sox organization

including 6 persons who were with the Red Sox at

the time of the reported events. While some

said that they had suspicions about Crawford’s

use of steroids when he was a player, no one

could recall the incident that Craw

ford recounted in the article.

At the end of the 2004 season, a clubhouse

employee was cleaning out the Detroit

Tigers locker room when he found a black toiletr

y kit that was locked. He and another Tigers

employee opened the bag and found unused syringes and vials that they determined were

anabolic steroids. They did not

report the incident. The em

ployee said that he could not

remember who the bag belonged to.

291

Paxton Crawford,

“It’s Like Playing with Fire,”

ESPN The Magazine, June 20, 2006;

Associated Press,

Crawford Comes Clean

, SI.com, June 22, 2006.

112

VII. Major League Baseball

and the BALCO Investigation

A. The BALCO Raid and Grand Jury Investigation

On September 3, 2003, law enforcement officers from several federal agencies

raided the offices of the Bay Area Laborat

ory Cooperative in Burlingame, California.

292

The

raid was part of an investiga

tion that had been underway sinc

e August 2002 into allegations that

a number of “‘world-class’ professi

onal athletes were . . . illega

lly receiving anabolic steroids

and other athletic performance-enhancing drugs

and having their steroid intake monitored by

persons associated with [BALCO].”

293

On the day of the raid, Victor Conte,

the founder and president of BALCO,

agreed to be interviewed by federal agen

ts who were conducting the investigation.

294

He told

them that BALCO was in the bus

iness of providing the “elemental

analysis of blood and urine

samples.”

295

Conte also admitted, however, that BA

LCO distributed to “elite athletes”

substances that he called “the cr

eam” and “the clear” but that were

, in fact, “athletic performance

enhancing substances.”

296

Conte described “the clear” as a

“liquid with anabolic effects” that

“helps the athlete with recovery.”

297

He said he purchased a supply of “the clear” from a chemist

named Patrick Arnold for $450 and that

supply had lasted him ever since.

298

292

See

Lonnie White,

Raid Is Conducted on Supplement Company; BALCO a Northern

California firm, has a reputation of catering to high-profile athletes

, L.A. Times, Sept. 5, 2003,

at D3.

293

Affidavit of Special Agent Brian Watson in

Support of Request

for Search Warrants,

sworn to on Sept. 3, 2003, at 2.

294

See generally

Internal Revenue Service Memorandu

m of Interview of Victor Conte,

Jr., dated Sept. 3, 2003.

295

., ¶ 2.

296

., ¶¶ 7, 12.

297

., ¶ 7. Federal prosecutors later described

“the clear” as “a steroid-like derivative

also now known as tetrahydragestrinone, or T

HG.” United States Sentencing Memorandum,

113

“The cream,” which athletes rubbed on their skin, was a combination of

testosterone and epitestosterone

that Conte said

he obtained from other sources. The

combination allowed athletes to take the substanc

e without raising their “T/E ratio,” the ratio in

the bloodstream of testosterone and epitestosterone, th

ereby enabling the athl

etes to pass a drug

test. According to th

e Internal Revenue Service memorandum

of his interview that day, “Conte

stated that he gives ‘the clea

r’ and ‘the cream’ to athletes

so they can increase athletic

performance without getting caught by the testers.”

299

Conte told the agents that he had sold

“the cream” and “the

clear,” and advised on

their use, to dozens of elite athletes, including

several players in Major League Baseball whom

he named in the interview: Barry Bonds; Jason Giambi; Jeremy Giambi; Armando Rios; and

Gary Sheffield.

300

In that regard, Conte explained:

At the beginning of this major league baseball season, Greg

Anderson, a personal trainer at Bay Ar

ea Fitness who works closely with

several major league baseball players,

brought in several of the players to

Balco in order to obtain the undetectab

le cream and clear. This was done

because of Major League Baseball

’s new drug testing policy. Barry

Bonds was one of the players that

Anderson brought to Conte to obtain

“the clear” and “the cream”. Bonds ta

kes “the clear” and “the cream” on a

regular basis. The protocol for using

the substances is two times per week

for “the clear” and two times per week for “the cream”. The athletes do

this for three weeks then take one week off. [BALCO vice president] Jim

Valente deals more with Anderson than

Conte does. Anderson last got

some of “the clear” and “the cream

” from Conte for his athletes about

three (3) or (4) weeks ago.

301

dated Oct. 11, 2005,

United States of America v. Anderson

, CR No. 04-0044 (N.D. Cal.)

(“Anderson Sentencing Memo.”), at 3.

298

Internal Revenue Service Memorandum of

Interview of Victor Conte Jr., dated

Sept. 3, 2003, ¶ 7 (Exhibit M(1) to Declaration

of Special Agent Jeff Novitzky dated Oct. 29,

2004,

United States v. Conte

, CR No. 04-0044-SI (N.D. Cal.)).

299

Id.

300

Id.

, ¶ 8.

301

Id.

, ¶ 11.

114

Conte told the agents that “Barry

Bonds does not pay Conte for ‘the

clear’ and ‘the cream’ that

he receives. Bonds’ payment is in the fo

rm of promotion for Conte’s ZMA product.”

302

Valente also agreed to be interviewed

by federal agents on th

e day of the BALCO

raid. During that interview, according to th

e Internal Revenue Service interview memorandum,

Valente stated:

[He] is aware that Greg Anderson

also provides human growth hormone

and testosterone cypionate to his pr

ofessional baseball clients. Anderson

told him this. Anderson brought his ba

seball clients to Balco this spring

when major league baseball announced

their new steroid testing policy.

This was so Anderson could start gi

ving them steroids that would not

show up in drug tests.

Among those baseball players brought

to Balco by Anderson was Barry

Bonds. Bonds has received “the clea

r” and “the cream” from Balco on a

“couple of occasions”. According to

Valente, Bonds does not like how

“the clear” makes him feel.

Other players that Anderson has obtaine

d “the clear” and “the cream” for

from Balco are Benito Santiago, Gary Sheffield, Marvin Benard, Jason

Giambi and Randy Velarde. Sometime

[sic] the substances are given to

Anderson to give to the athletes and

sometimes the athletes are given the

substances directly. . . .

* * *

. . . One instance that Valente recalls where athletes did test positive for

steroids involved Jason and Jeremy Gi

ambi. The Giambi brothers came to

Balco and informed them that they

had taken a steroid some time ago and

wanted to see if it was still detectable in their systems. Valente recalled

that the particular steroi

d they took can stay in a

person’s system for up to

18 months. The urine that Balco coll

ected and sent out for testing came

back positive for steroids.

* * *

Valente recalls sending a blood sample

belonging to Barry Bonds to Lab

One, then notifying Lab One that the

sample did not refer to Bonds but

rather to Greg Anderson. Valente st

ated that Anderson asked him to do

this because Bonds did not want hi

s name on the blood sample. Despite

302

Id.

, ¶ 22. ZMA is a nutritional supplement that is marketed by Conte’s other

company, SNAC System, Inc.

115

signing an affidavit stating that the

blood sample was mislabeled as Barry

Bonds, Valente knew that it was Bonds’ blood.

303

Both Conte and Valente later denied

that they had made the statemen

ts attributed to them in the

Internal Revenue Service interview memoranda.

304

After completing their search of the BA

LCO offices, agents also searched a

storage locker where Conte kept

a supply of performance enha

ncing substances. There the

federal agents found six 100-gram jars of the “cream” and a quantity of injectable anabolic

steroids.

305

Having obtained a search warrant for Greg

Anderson’s residence and vehicle, the

agents then confronted Ande

rson at Bay Area Fitness and informed him of the warrant.

306

Anderson accompanied the agents to his condomin

ium, where the agents executed the search

warrant.

307

Anderson initially agreed to speak with th

e investigators before later concluding that

he should no longer cooperate.

308

According to the memorandum

of his interview by federal

investigators, Anderson said that he began wo

rking with players in Major League Baseball

around 1997, that Barry Bonds was his

first “athlete client,” and that

he also worked as a trainer

303

Internal Revenue Service Memorandum of

Interview of Jim Valente, dated Sept. 3,

2003, ¶¶ 4-6, 10, 13. (Exhibit M(2) to Declaration

of Special Agent Jeff Novitzky dated Oct. 29,

2004,

United States v. Conte

, CR No. 04-0044-SI (N.D. Cal.))

304

See

Reporter’s Transcript of Proceedings in

United States v. Victor Conte, Jr., et. al.

CR 04-00044, dated Dec. 1, 2004, at 3, 4, 8, 18, 28.

305

Anderson Sentencing Memo. at 4.

306

Internal Revenue Service Memorandum of

Interview of Greg Anderson, dated Sept. 3,

2003, at 1. (Exhibit 1 to Decl

aration of Special Agent Ed

Barberini dated Oct. 28, 2004,

United States v. Anderson

, CR No. 04-0044-SI (N.D. Cal.)).

307

308

. at 1, 3.

116

with Marvin Benard, Bobby Estale

lla, Jason Giambi, Armando Rios, Benito Santiago, and Gary

Sheffield.

309

Although initially he preferre

d “not to say who” received steroids from him,

Anderson eventually admitted that he had supplie

d performance enhancing substances to Benard,

Estalella, Rios, and Santiago.

310

Anderson also stated that “Barry Bonds never took any of ‘the

clear’ or ‘the cream’ from Balco.”

311

Anderson said that he provided Santiago with human

growth hormone a few months before the intervie

w and had sent that substance by FedEx “in the

past” to both Estalella and Rios.

312

During their search of Anderson’s home, agents found

documentary evidence “corroborating these admissions.”

313

Anderson also told investig

ators that “[w]hen baseball

began its steroid testing

procedures this year, some of Anderson’s base

ball clients began taking

‘the clear’ and ‘the

cream’ products that Anderson gets from Balco Labor

atories. . . . Valente told Anderson that

the cream was a combination of testosterone and ep

itestosterone and that this is why is [sic] was

safe for athletes being tested to use.”

314

During Anderson’s interview, agents disc

overed “file folders labeled with names

of professional baseball players” containing “calendars with athletes [sic] names or initials on

309

Id.

, ¶ 4.

310

Id.,

¶¶ 5, 9.

311

Internal Revenue Service Memorandum of

Interview of Greg Anderson, dated Sept. 3,

2003, ¶ 17.

312

Id.

, ¶¶ 10, 11. Anderson said that he obtained the human growth hormone from AIDS

patients in San Francisco.

Id.

, ¶ 14. Kirk Radomski also obtain

ed human growth hormone that

he resold to major league players by purchasi

ng “kits” of the substance from AIDS patients.

313

Anderson Sentencing Memo. at 5.

314

Internal Revenue Service Memorandum of In

terview of Greg Anderson, dated Sept. 3,

2003, ¶ 7.

117

them which appeared to contain details of

steroid administration to

athletes by dates.”

315

Federal

prosecutors later explained that

the calendars “contained codes

reflecting individual athlete use

of the ‘[c]ream,’ the ‘[c]lear,’ human growth

hormone, and injectable

anabolic steroids.”

316

Agents also found “$63,920 in currency,” quantities of both the “cream” and the “clear,” “empty

boxes of human growth hormone, a quantity of inj

ectable anabolic steroi

ds, syringes, and other

paraphernalia associated w

ith steroid distribution.”

317

After the agents

found this evidence,

Anderson said that “he didn’t think he should be

talking anymore because he didn’t want to go to

jail,” and the interview ended.

318

A grand jury investigation

continued into BALCO’s role

in the alleged illegal

distribution of performan

ce enhancing substances.

319

It was directed by prosecutors from the

United States Attorney’s Office for the Northern

District of California. Witnesses who were

subpoenaed to appear before the grand jury

included Marvin Benard, Barry Bonds, Bobby

Estalella, Jason Giambi, Jeremy Giambi, Armando Rios, Benito Santiago, Gary Sheffield, and

Randy Velarde.

320

Under federal law, with few exceptions, th

e testimony of witnesses before a grand

jury is considered confidential a

nd cannot be disclosed. In a series

of articles in early December

315

Id.

at 3.

316

Anderson Sentencing Memo. at 4-5.

317

Id.

at 4.

318

Internal Revenue Service Memorandum of

Interview of Greg Anderson, dated Sept. 3,

2003, at 3.

319

Mark Fainaru-Wada,

Grand Jury Probes Nutrient Company

, S.F. Chron., Oct. 14,

2003, at A1.

320

See

Lance Williams and Mark Fainaru-Wada,

What Bonds told BALCO grand jury

S.F. Chron., Dec. 3, 2004, at A1;

see also

Mark Fainaru-Wada and Lance Williams,

Giambi

admitted taking steroids

, S.F. Chron., Dec. 2, 2004, at A1; Murray Chass,

Scope of Balco

Subpoena of Steroid Tests Is Greatly Reduced

, N.Y. Times, Mar. 6, 2004, at D1.

118

2004, however, the San Francisco Chronicle publishe

d reports of the alle

ged testimony of many

of these Major League Baseball players, whos

e transcribed testimony two Chronicle reporters,

Mark Fainaru-Wada and Lance Williams, claimed to have reviewed.

321

The Chronicle reported that, in his grand jury testimony, Bonds admitted that

during the 2003 season he had received substa

nces sounding like the “clear” and the “cream”

from his personal strength trainer, Greg Anderson

, and that he had used those substances. He

reportedly testified, however, that

he was told “they were the nut

ritional supplement flaxseed oil

and a rubbing balm for arthritis.” The article

reported that Bonds was asked during his testimony

if he had used anabolic steroids, human growth

hormone, insulin, or Clomid (a female infertility

drug used by steroid abusers to counteract th

e effects of steroids

on natural testosterone

production) over a three-year period from 2001

through 2003, and he denied that he had done

so.

322

On November 15, 2007, Bonds was indicted

for perjury and obstruction of justice based

on his grand jury testimony.

323

The Chronicle also reported on the gr

and jury testimony of Jason Giambi.

According to the news story, Giambi testified th

at he had used several different performance

enhancing substances, some of which he had obt

ained from Greg Anderson. Giambi reportedly

told the grand jury that he in

jected himself with human grow

th hormone in his abdomen and

injected himself in the rear end with anabolic

steroids. “Giambi also said he had taken

‘undetectable’ steroids known as ‘t

he clear’ and ‘the cream’ . . . .”

Giambi was reported to have

321

See

Lance Williams and Mark Fainaru-Wada,

What Bonds told BALCO grand jury

S.F. Chron., Dec. 3, 2004, at A1;

see also

Mark Fainaru-Wada and Lance Williams,

Giambi

admitted taking steroids

, S.F. Chron., Dec. 2, 2004, at A1.

322

See

Lance Williams and Mark Fainaru-Wada,

What Bonds told BALCO grand jury

S.F. Chron., Dec. 3, 2004, at A1.

323

See

Indictment,

United States v. Bonds

, No. 07 CR 0732 (N.D. Cal.).

119

testified that he obtained all of the substances

except the human growth hormone from Greg

Anderson; he obtained the growth

hormone from a Las Vegas gym.

324

Before he began working with Greg

Anderson, Giambi reportedly had self-

administered the anabolic steroid Deca-Durabolin, which he had obtained from a source at

Gold’s Gym in Las Vegas. Giambi submitted to

blood and urine tests at

Anderson’s direction,

which revealed his use of Deca-Durabolin and, he reportedly testifie

d to the grand jury,

Anderson “warned him to stop using it, saying [that type of anabolic steroid] could stay in his

system a long time.”

325

Giambi also reportedly told the grand ju

ry that Anderson described “the cream”

and “the clear” as “an alternativ

e to steroids” that did not appear

on a test for st

eroids. Giambi

also acknowledged that a calendar kept by Ande

rson for his training program set forth the

regimen of substances he was taking under Anderson’s supervision, includ

ing the “cream,” the

“clear,” injectable testosterone,

and a number of different pills.

326

The Chronicle reported that Giambi’s br

other, Jeremy, who also had played for

the Oakland Athletics, provided testimony that

“mirrored his brothe

r’s – right down to

Anderson’s notifying him that he had tested posi

tive for the steroid Deca Durabolin.” Jeremy

Giambi reportedly testified that he had se

lf-administered human growth hormone and

testosterone he received from

Greg Anderson “before the star

t of the 2003 season, when he

played for the Boston Red Sox.” Anderson had told

him that “the clear” and “the cream” were

324

Mark Fainaru-Wada and Lance Williams,

Giambi admitted taking steroids

S.F. Chron., Dec. 2, 2004, at A1.

325

Id.

326

Id.

120

“undetectable ‘alternatives to steroids.’” Both

Giambis testified “they were drawn to [Greg

Anderson] because of Bonds’ success.”

327

In addition to the testimony of Bonds and th

e Giambis, the Chronicle reported that

former San Francisco Giants players Bobby Esta

lella, Armando Rios, and Benito Santiago all

had admitted to using performance enhancing subs

tances in their grand jury testimony, although

Santiago’s attorney said that if Santiago had ingested any performance enhancing substances it

had been without knowledge of what they were.

328

The Chronicle also reported that New

York Yankees outfielder Gary Sheffield

testified that when he was training with

Barry Bonds before the 2002 season, Bonds “had

arranged for him to receive ‘the cream,’ ‘the

clear’ and ‘red beans,’ which the prosecutors

identified as steroid pills manufact

ured in Mexico.” Sheffield was

reported to have testified that

he did not interact directly with

Anderson and that he was never told that the substances he was

given by Bonds were steroids.

329

In February 2007, Troy Ellerman, formerly counsel to Jim Valente, was charged

by federal prosecutors with, among other things, permitting Fainaru-Wada “to take verbatim

notes of grand jury testimony of baseball pl

ayers Jason Giambi, Barry Bonds and Gary

Sheffield.”

330

Ellerman pled guilty and in July 20

07 was sentenced to 30 months imprisonment

for contempt of court an

d obstruction of justice.

331

327

Id.

328

Lance Williams and Mark Fainaru-Wada,

What Bonds told BALCO grand jury

S.F. Chron., Dec. 3, 2004, at A1.

329

Id.

330

Criminal Information,

United States v. Troy L. Ellerman

, No. CR 07-0080 (N.D. Cal.),

Feb. 14, 2007, at 4.

331

See

Judgment,

United States v. Troy L. Ellerman

, No. CR 07-0080 (N.D. Cal.),

July 13, 2007.

121

B. Information Learned During this Investigation

Concerning BALCO and Major League Baseball

I requested interviews of all the majo

r league players who had been publicly

implicated in the BALCO case: Marvin Bena

rd; Barry Bonds; Bobby Estalella; Jason Giambi;

Jeremy Giambi; Armando Rios; Benito Santiago

; Gary Sheffield; and Randy Velarde. Jason

Giambi agreed to be interviewed, and Randy Vela

rde provided information through his attorney.

All the other players implicated in the BALCO cas

e refused my requests to be interviewed or did

not respond to them. Gary Sheffield initially decl

ined my request for an interview. Sheffield

later said that he would agree to an interview,

subject to the availability of his lawyer who was

undergoing medical treatments. Because of her

medical condition, we were unable to secure a

date for an interview of Sheffield be

fore the end of this investigation.

Those players who provided a reason fo

r their refusal to cooperate most

frequently cited the possibility of a criminal investigation. Of

all the players, only Barry Bonds

was at the time the subject of a criminal i

nvestigation, which has now

led to a grand jury

indictment against him for perjury and obstructi

on of justice, so under these circumstances his

refusal to talk with me was understandable.

Interviews also were requested of num

erous other persons believed to have

knowledge of BALCO, including Gr

eg Anderson, Patrick Arnold, Ki

mberly Bell, Victor Conte,

Mark Fainaru-Wada, Steve Hoskins, Remi Korc

hemny, Jim Valente, and Lance Williams. All

declined to be interviewed. Nevertheless, we

were able to secure a number of relevant

documents and interviews. Set forth below is th

e information we obtained from those sources.

1. Information About Possible Steroid Sales By

Greg Anderson Before the Raid on BALCO

In 2000, Stan Conte became the head athletic trainer for the San Francisco Giants,

having served in more junior positions within th

e organization before then. (Conte is not related

122

to BALCO founder Victor Conte.) According to

Conte, he first met Greg Anderson and Harvey

Shields during the Giants’ spring training that ye

ar. Anderson advised Conte that he was a

“strength weightlifting guru” whom Bonds had sought out for assistance. Bonds, in turn, told

Conte that Anderson’s presence was not a reflection on Conte, but that Bonds needed special

attention as he got older. Shields also

provided personal traini

ng services for Bonds.

Conte asked Anderson for a resume during

spring training. In response, Anderson

supplied a one-page document indicating that Anderson had graduated from high school and that

everything else was “pending.” The resume di

d not reveal, and Conte was unaware of, any

education or expertise th

at Anderson might have that would qualify him to train a professional

athlete.

Conte observed Anderson training in th

e weight room with Bonds on numerous

occasions during 2000 spring training. Conte was

concerned that the workouts involved heavier

weights than Conte would have

recommended, which, in Conte’s view

, created a heightened risk

of injury. When Conte asked Anderson about

Bonds’s weight training program, Anderson

responded that “I’m doing what Barry tells me to.”

During spring training, Conte met with Giants general manager Brian Sabean to

express his concerns about the presence of Ande

rson and Shields in the clubhouse, weight room,

and other restricted areas. Conte felt strongly that personal tr

ainers should not have such access,

particularly where, as here, he view

ed the trainers to be unqualified.

Sabean told Conte that if

Conte objected to Anderson

and Shields being in the

clubhouse, Conte should order them out himself.

Conte said he would do this if Sabean would

support him when Bonds complained, which Conte be

lieved would be the re

sult of his actions.

Sabean did not respond to this request for support,

leading Conte to belie

ve that Sabean would

123

not do so if Bonds protested. Conte therefore

decided to take no acti

on to deny Anderson or

Shields access to restricted areas.

332

During winter meetings in 2001, Kevin Hallinan, the director of security for the

Commissioner’s Office, lectured team physicians a

nd athletic trainers about the importance of

clubhouse security generally. Conte

said that after Hallinan’s prepared remarks, San Francisco’s

assistant athletic trainer Barney

Nugent stood up and said that

there were issues with clubhouse

security in San Francisco that seemed beyond the cap

ability of local security

to control. After

the lecture, Nugent and Conte told

Hallinan about security issues

related to Bonds’s entourage.

According to Conte, Hallinan seemed to be fa

miliar with the issue and promised that “we’re

going to do something about this, it’s an i

ssue and we know what

you’re talking about.”

333

In January 2002, Peter Magowan, the Gi

ants’ president and managing general

partner, met with Bonds in conn

ection with the renewal

of his contract with the Giants. In a

subsequent letter to Bonds, Magowan set forth a se

ries of “discussion points” that they agreed to

during that meeting and that Magowan assure

d Bonds would “remain consistent” during the

duration of Bonds’s new contra

ct (covering the 2002-2006 seasons).

Along with a number of

other accommodations to Bonds, the Giants agreed that:

Barry will provide the Club with a

list of the personnel typically and

historically needed. We will also wo

rk closely with Barry’s publicists to

assure them of the prope

r access. In return, we agree that any of the

approved personnel are not allowed

to bring along any friends or

associates or family members and th

e personnel’s access should be limited

to their area of responsibility to Barry.

334

332

Sabean did not recall such a conversation wi

th Conte in 2000 about either Shields or

Anderson.

333

Giants assistant athletic

trainer Dave Groeschner confir

med Conte’s recollection of

events. Hallinan did not remember

Nugent’s statement at the meeting or the conversation with

Conte, Groeschner, and Nuge

nt after his lecture.

334

Letter from Peter A. Magowan

to Barry Bonds, dated Feb. 11, 2002.

124

In August 2002, the Giants were visiting Atla

nta for a series with the Braves. At

the time, Anderson was traveling with the Giants.

Conte recalls that during

this series a Giants

player asked Conte about anabolic

steroids. Conte refused to id

entify the player to us, citing

athletic trainer privilege. A

ccording to Conte, the player to

ld him that he was considering

obtaining steroids from Greg Ande

rson and wanted to know the health

issues associated with the

use of steroids. In response, Conte explained at

some length the health hazards of steroid use

and lectured the player about the unfairness to other players posed by the illicit use of steroids.

Conte believed that it was “a good

lecture” and that he put cons

iderable doubt in the player’s

mind.

Conte stated that he report

ed the incident to general manager Brian Sabean within

an hour of its occurrence. He told Sabean he

was concerned that Anders

on might be distributing

steroids to Giants players. While he refused

to identify the player who had approached him,

Conte otherwise described the conversation to

Sabean in detail. Sabean suggested Conte

confront Anderson and Bonds about the matter, wh

ich Conte refused to do. In Conte’s view, it

was not the responsibility of the athletic trainer to

address such an issue.

Sabean confirmed in his interview that

Conte’s recollection of their conversation

was accurate. He also acknowledged that he did

not raise the issue with Bonds or Anderson.

Instead, he asked Conte if he knew anyone who c

ould “check out” Anderson. Conte said that he

knew a Drug Enforcement Administration agent, a

nd Sabean suggested Conte call the agent to

check into Anderson. The DEA agen

t later told Conte that he di

d not find any information about

Anderson. Conte relayed this to Sabean.

Sabean told me that he believed that if Anderson was in fact selling drugs illegally

the government would have known about it. So when

he received the report from Conte, Sabean

125

did not report the issue to anyone in the Giants organization or the Co

mmissioner’s Office, he

did not confront Bonds or Ande

rson, and he did not take any

steps to prohibit Anderson from

gaining access to Giants facilities. Sabean said

that he was not aware at the time of the Major

League Baseball policy that required him to repor

t information regarding

a player’s drug use to

the Commissioner’s Office.

Sabean explained that he was in a very

difficult situation regarding disclosure of

this information because, as a re

sult of the clubhouse cult

ure in baseball, he felt he could not risk

“outing” Conte as the source of the information.

He said that if he had insisted on Anderson’s

ouster from the clubhouse, Bonds would have vigo

rously objected, just as he did when the

Giants tried to bar Harvey Shields in respons

e to the later (February 2004) mandate from the

Commissioner’s Office barring personal tr

ainers from restricted areas.

During spring training in 2003, Hallinan a

nd one of his deputies asked Conte to

join them in the dugout for a private meeting.

Hallinan asked Conte if there was anything the

security department could do to help him. C

onte responded to the effect that “the horse had

already left the barn and there’s no need to cl

ose the door now.” He did not report to Hallinan

the conversations he had had with Sabean about

Anderson the previous season, because, he said,

the incident did not cross his mind at that time.

In September 2003, published reports revealed

that a search warrant was executed

on Anderson’s residence in connection with th

e BALCO investigation

and that Anderson was

under investigation for the alleged di

stribution of anabolic steroids.

335

Even after he became

335

See

Mark Fainaru-Wada,

IRS searches home of Bonds’ personal trainer

, S.F. Chron.,

Sept. 9, 2003, at A15;

see also

Mark Fainaru-Wada and Lance Williams, Sports and Drugs; How

the doping scandal unfolded; Fallout from BALCO

probe could taint Olympics, pro sports

S.F. Chron., Dec. 21, 2003, at B1.

126

aware of this event, Sabean did not inform a

nyone in the Commissioner’s Office or within the

Giants organization of hi

s earlier conversat

ion with Conte about Anderson.

Peter Magowan, the Giants’ managing partner and chief executive officer,

recalled asking Sabean directly whether the Gian

ts “had a problem” after reading the news

reports of the BALCO raids. Magowan said th

at what he meant by his inquiry was to ask

whether the Giants had a problem with Anders

on dispensing steroids;

he wanted to know

whether Sabean had any reason to

know of such a problem.

According to Magowan, Sabean

responded that he was not aware of any problem

the Giants might have. However, Sabean

strongly denied that such a conversation occurred.

Magowan said that in September 2003, following the publicity surrounding the

execution of the BALCO search warrants, Ande

rson was barred from the Giants clubhouse.

According to Giants clubhouse records, by th

at time Anderson had visited the clubhouse on

94 different days since March

2002. On February 12, 2004, Anderson and others were indicted

by a federal grand jury in San Francisco on char

ges that included cons

piracy to distribute

anabolic steroids.

336

In a February 20, 2004 memorandum to all major league clubs, Commissioner

Selig and Sandy Alderson, then his executive vice

president for baseball

operations, reiterated

the importance of clubhouse security in light

of “[r]ecent events.” The memorandum imposed

regulations that restricted w

ho would be granted access to cl

ubhouses, dugouts, and other areas

of ballparks in Major League Ba

seball. Under the po

licy, access to restricted areas was limited

to authorized club personnel, immediate family,

and authorized representatives of Major League

Baseball or the Players Associati

on. In addition, accredited media

were granted limited access to

336

Jack Curry,

4 Indicted in a Steroid Scheme

That Involved Top Pro Athletes

N.Y. Times, Feb. 13, 2004, at A1.

127

portions of the clubhouse during specified periods be

fore and after games. The policy expressly

prohibited access to restricted

areas by “friends, associates, ag

ents, attorneys [and] personal

trainers.”

337

In April 2005, published news reports indica

ted that Bonds was still training with

Anderson outside of

Giants facilities.

338

Magowan said that after learning this the Giants

contacted the Commissioner’s Offi

ce, which advised that the Gian

ts could not control Bonds’s

choice of persons he trained with while

away from the club’s facilities.

Nevertheless, according to Magowan, the

Giants asked Bonds to stop working

with Anderson. The Giants also instructed Harv

ey Shields and Greg Oliver, who were then both

members of the Giants training staff and worked with Bonds extensively, to

have no contact with

Anderson. On July 16, 2005, Anderson pleaded guilty

to one count of conspiracy to distribute

anabolic steroids and one count of money laundering.

339

2. Players’ Links to Performance Enhancing Substances

a. Marvin Benard

Dusty Baker was the manager of the San

Francisco Giants in 2003 when the news

of the BALCO raids broke. Baker advised my inves

tigators in an interview that he was close to

Marvin Benard and was “completely shocked” wh

en he became aware of the allegations that

Benard used steroids.

337

See

Memorandum to Major League Clubs

from Commissioner Selig and Sandy

Alderson dated February 20, 2004

regarding Clubhouse Security.

338

Mark Fainaru-Wada and Lance Williams,

Bonds working with Anderson

, S.F. Chron.,

Apr. 9, 2005, at D1.

339

See

Plea Agreement,

United States v. Greg Anderson

, CR 04-0044-SI (N.D. Cal.),

at 1.

128

After Baker learned of the allegations, he

asked Benard if they were true.

According to Baker, Benard admitted he had used steroids previously but said that he had

stopped. Baker did not report Benard’s admissi

on to anyone in Giants management or the

Commissioner’s Office.

b. Barry Bonds

In addition to declining an interview in

connection with this

investigation, Bonds

declined to respond to written questions about

his alleged use of performance enhancing

substances.

Harvey Shields was Bonds’s personal trainer between 2000 and 2004 and

continued to provide training

services to Bonds as a Giants employee from 2004 through 2006.

He said in an interview that Greg Anderson pr

ovided Bonds with a cream to use on his elbow,

which Shields said he believed was an over-the-count

er “arthritis cream.” Sh

ields also said that

Anderson provided Bonds with a clear liquid that Bonds ingested by placing drops under his

tongue. Shields did not know where Anderson obt

ained the clear liquid.

When asked how many

times he and Bonds had taken the “clear,” Shields would say only “more than once.”

340

Shields said he believed the clear liquid

was flaxseed oil. He claimed to have

taken the clear liquid himself, and he said that

it tasted like flaxseed oil he had obtained from

health food stores in the past.

Shields’s description of the

“clear” is contradicted by the

description provided by Patrick

Arnold, the chemist who devel

oped it, who in a television

340

In his first interview with my investigator

s, Shields claimed to have entered into a

Confidentiality Agreement with Bonds in 2006 th

at he believed preclude

d him from disclosing

certain information to our investigation.

129

interview said the substance was “sickly bitter”

and would never be confused for flaxseed oil by

anyone who had tasted both.

341

In their book

The Juice: The Real Story of Baseball’s Drug Problems

, the authors

Will Carroll and Dr. William Carroll explained that

“BALCO was noted to use flaxseed oil as a

delivery agent” for the “clear.” According to th

e authors, the use of fl

axseed oil as a delivery

agent for steroids is widely known in the “s

teroid underground” because “flaxseed oil can

counteract some of the estrogenic

effects of steroid use, such as growth of breasts in men.”

342

Shields also accompanied Bonds to BALC

O on at least one occasion sometime

“around 2001,” when Bonds and Shields met at BALCO with Bonds’s personal physician,

Dr. Arthur Ting, and BALCO vice president Jim

Valente. Once inside, Dr. Ting drew blood

from Bonds and Shields for testing at BALCO.

Shields said that BALCO tested the blood

samples for vitamin and mineral deficiencies.

Major League Baseball records confir

med that Greg Anderson accompanied

Bonds as his guest during a 2002 Al

l-Star tour in Japa

n. Because Anderson was Bonds’s guest,

his first-class airfare, hotel, a

nd a daily meal stipend were paid

for by Major League Baseball

during the two-week trip.

Peter Magowan told me in an interview

that he was in San Diego in February

2004 when he received a telephone

call from Bonds to discuss ways to improve the team for the

coming season. Magowan said that at the conclu

sion of the phone call he

said to Bonds “I’ve

really got to know, did you take

steroids?” According to Mago

wan, Bonds responded that when

he took the substances he did not

know they were steroids but he

later learned they were. Bonds

341

Costas Now

, HBO television broadcast, or

iginal air date July 24, 2007.

342

Will Carroll & William Carroll, Ed.D.,

The Juice: The Real Story of Baseball’s Drug

Problems

13 (Ivan R. Dee 2005).

130

said that he took these substances

for a period of time to help

with his arthritis, as well as

sleeping problems he attributed to concern about

his father’s failing heal

th. To emphasize that

he was not hiding anything Bonds added that he

used these substances

in the clubhouse in the

plain view of others. Bonds told Magowan he used these substances for only a short period of

time and that they “didn’t work.”

Magowan recalled asking Bonds

whether this was what he

had told the grand jury. Bonds replied yes.

Magowan also asked Bonds if he was telling the

truth, and Bonds said he was.

Two days after Magowan’s interview, la

wyers for Magowan and the Giants called

a member of my investigative staff. Magowan’s

lawyer explained that his client misspoke when

he said that Bonds had said, dur

ing their February 2004 telephone cal

l, that he later learned the

substances he had taken were steroids. According to his lawyer, Magowan could only recall

with certainty that (1) Bonds ha

d said he did not knowingly take

steroids, and (2) what Bonds

said to Magowan during the call was consiste

nt with what Magowan later read in the

San Francisco Chronicle about Bond

s’s reported grand jury testimony.

c. Bobby Estalella

Game of Shadows

, the authors wrote that in

2002 Bobby Estalella, a former

player with the San Francisco Giants who was then with the Colorado Rockies, called Greg

Anderson seeking help to recover from shoulder

surgery. Estalella had met Anderson when he

was playing with the Giants and had agreed to

blood and urine tests for mineral deficiencies.

Anderson reportedly sent Estalella a “wor

kout program and drug schedule” under which

Estalella would use human growth hormone, the

“clear,” the “cream,” and the female fertility

drug Clomid, in rotation.

343

Mark Fainaru-Wada & Lance Williams,

Game of Shadows

142-43 (Gotham Books

2006).

131

Estalella’s apparent use of

performance enhancing substances was noticed by club

officials. After the 2003 season, the Los Angeles Dodgers considered signing Estalella as a free

agent. During a three-day meeting of Dodgers officials in late Oct

ober 2003, assessments were

made of many players, including

the possible use of steroids by

some players. Ellen Harrigan,

an administrator in the Dodgers’ scouting depart

ment, kept detailed notes of the discussion.

Among the comments she recorded was an observati

on by one of the participants that Estalella

was a “poster boy for the chemicals.”

344

d. Jason Giambi

Jason Giambi was interviewed subject to an agreement that had been negotiated

among his agent, the Commissioner’s Office, and

the Players Association under which Giambi

was not to be asked to identify

any other player as to whom he

had knowledge of the illegal use

of performance enhancing substances.

345

Giambi told me that he began using ana

bolic steroids in 2001, when he purchased

Deca-Durabolin from a contact named “Jim” who he

met at Gold’s Gym in Las Vegas but could

not further identify. Giambi said that he inj

ected himself with approximately “one cc” (cubic

centimeter) of Deca-Durabolin

each week for the remainder of the 2001 season, always

administering the drug to himself and always at

home. He purchased an additional supply of

344

Transcript of Dodgers Baseball Operati

ons Department Meetings, dated Oct. 21-24,

2003, at 51. Several Dodgers offici

als participated in the meeti

ngs, including special scouting

advisor Gib Bodet, senior advisor John Boles,

general manager Dan Evans, team physician Frank

Jobe, athletic trainer Stan J

ohnston, manager Jim Tracy, advance

scout Mark Weidemaier, senior

scouting advisor Don Welke, and direct

or of amateur scouting Logan White.

345

Letter from Francis X. Coonelly to

Michael S. Weiner, dated June 21, 2007.

132

Deca-Durabolin from the same source before the 2002 season, and he followed the same weekly

regimen of use of that substance throughout the 2002 season.

346

Giambi told me he first met Greg A

nderson in November 2002 while on an All-

Star tour of Japan on which Anderson was acco

mpanying Barry Bonds. Anderson told Giambi

that “he was connected to BALCO” and that it sp

ecialized in correcting mineral deficiencies in

athletes. Anderson suggested Giambi should “c

ome and get his blood and urine tested” when

they returned to the United States. Giambi did

not discuss steroids with Anderson in Japan, nor

did Giambi receive any drugs or other substanc

es from Anderson while they were in Japan.

In late November or early December

2002, after Giambi had returned to the

Bay Area, Anderson arranged for him to have a blood test at a hospital near BALCO’s offices.

Giambi later met Anderson at a gym in Burlingame,

where they reviewed the

results of the test.

Anderson told Giambi that he had tested posi

tive for Deca-Durabolin and warned him to stop

using it because it would stay in his system for

a long time and was easily detectable in a urine

test. They then discussed starting Giambi

on Anderson’s program of performance enhancing

substances. Anderson explained how he would

prepare a calendar for Gi

ambi that would tell

him what substances to take, a

nd when, and promised that if Giambi followed the program he

would not test positive in baseball’s drug

testing program, which was to begin in 2003.

Shortly thereafter, Anderson

mailed a package to Giambi

that included a calendar,

injectable testosterone, the “cream,” the “clear

,” and orange, white, a

nd yellow pills. Giambi

was not certain what the different

pills were but believed one of

them was Clomid. Separately,

Giambi also obtained human growth hormone fr

om “a guy in Las Vegas.” Anderson explained

346

On the advice of his lawyer, Giambi d

eclined to answer any questions about

performance enhancing substances for the

period before 2001, invoking the Fifth Amendment

privilege against self-incrimination.

133

to Giambi how to inject the growth hormone in

to his abdomen. Giambi paid Anderson, once by

check and once in cash or by money order, fo

r a total of about $7,000 to $10,000. Separately,

Giambi paid his Las Vegas source about $1,000

for one kit of human growth hormone.

Giambi confirmed that Anderson described

the “cream” and the “clear” to him as

an “alternative” to steroids or “something other th

an steroids that would

boost testosterone and

epitestosterone levels.” He began the “Anderson program” in December 2002 or January 2003.

While following the program, he injected himself w

ith two to three IUs (“in

ternational units”) of

human growth hormone three days a week and w

ith one cc of testoster

one a week (although he

only used testosterone for a short period).

347

Giambi took the other p

ills about three days per

week and used the “cream” and the “clear” twice

per week, all in accordance with the calendar

that Anderson had provided him. Giambi c

ontinued using these substances through the 2003

All-Star break. At that time,

Giambi injured his knee sliding in

to a base and decided to stop

using the substances because he was not sure wh

at impact they would have on his ability to

recover. Giambi told me that he has not used

any performance enhancing substances since the

2003 All-Star break.

e. Jeremy Giambi

On March 12, 2005, Jeremy Giambi admitted to

the Kansas City Star that he used

steroids while playing in Major League Baseba

ll. “It’s something I did,” Giambi told the

newspaper. “I apologize. I made a mistake.

I moved on. I kind of want it in the past.”

348

347

“IU” is a measurement for the amount of

a substance based on its biological activity.

The measure varies depending on the substance being measured.

348

Jeff Passan,

Ex-Royal: Using steroids a mistake

, Kan. City Star, Mar. 13, 2005, at C5.

With regard to his brother Jason’s then-recent

press conference apology,

Giambi also reportedly

told the reporter: “If you don’t know what he is

apologizing for you must’ve been in a coma for

two years.”

Id.

134

We spoke with Ethan Stein, a former minor

league player who played two seasons

with Jeremy Giambi, 1996 in Spokane and 1997

in Lansing, and frequently trained and had

occasional conversations with him in the weight

room. Stein said that during one of those

conversations in 1996, Giambi admitted that both he

and his brother used steroids and told Stein

that he could get him steroids. Stein responded that he was not in

terested. When Stein later saw

Giambi during spring training in 1997, his physiq

ue had changed dramatically. He noticed

increased muscular development, as

well as hair loss and back acne.

f. Benito Santiago

Game of Shadows

, the authors wrote that when drug testers approached

San Francisco Giants catcher Benito Santia

go to collect a urine sample in 2003, Santiago

panicked and fled the clubhouse. According to the authors, Santiago “returned 20 minutes later,

relaxed and ready to cooperate.

He had discussed the test with

Bonds, he explained. Everything

was fine, he was taking the same stuff as Barry.”

349

The authors also alleged that Santiago told

the BALCO grand jury that he injected

himself with human growth hormone.

350

At the end of the 2003 season, Mike Mu

rphy, a Giants clubhouse attendant, was

cleaning out Santiago’s locker

when he found a sealed package

of syringes. Murphy brought the

syringes to the training room, handed them to Cont

e, and told Conte that he had found them in

Santiago’s locker. Conte responded that he “w

ould take care of it.”

Murphy recalled that the

Giants’ assistant athletic traine

r Dave Groeschner also was pres

ent in the training room during

this conversation.

At the time, Santiago was the Giants’ st

arting catcher and had been named as a

BALCO client in a memorandum recounting the inte

rview of Jim Valente during the federal raid

349

Game of Shadows

at 144.

350

Id.

at 206.

135

of BALCO’s offices on September 3, 2003.

351

Greg Anderson also told federal agents that

Santiago was a client, and in

his interview during the federal raid on his condominium he

reportedly said he had supplied Sa

ntiago with human growth hormone.

352

Conte told us that Murphy did not iden

tify Santiago as the source of the syringes

but instead claimed that Murphy had told him they were found in “

the

catcher’s locker,”

suggesting the syringes had been found in the lo

cker belonging to Santiago, who was then the

Giants’ starting catcher. Murphy failed to disclose

this incident at all duri

ng his first interview.

When asked about it again during a follow-up in

terview, Murphy acknowledged that the incident

had occurred and said that he had told Conte

specifically that he ha

d found the syringes in

Santiago’s locker.

The Giants’ assistant athletic trainer Dave

Groeschner remembered the incident as

well. He recalled that after Mu

rphy left the trainers’ room, he

and the trainers talked among

themselves and decided simply to dispose of th

e syringes. They did not follow up with Santiago

because they knew he was leaving the team at

the end of that season. Santiago became a free

agent after the 2003 season and signed with th

e Kansas City Royals in December 2003.

Conte did not view the incident as a “big deal,” and he did not investigate the

matter further or report the incident to Giants

management or to the Commissioner’s Office.

Likewise, Conte did not confront

“the catcher” about the incident.

g. Gary Sheffield

On March 16, 2006, a federal magistrate j

udge from Idaho, Judge Larry M. Boyle,

wrote a letter to Commissioner Selig

in which he enclosed a copy of

an earlier letter he had sent

on February 26, 2004 to the United States Attorney fo

r Idaho. In that earlier letter, Judge Boyle

351

IRS Memorandum of Interview of Jim Valente, dated Sept. 3, 2003, ¶ 6.

352

IRS Memorandum of Interview of Gr

eg Anderson, dated Sept. 3, 2003, ¶ 4

136

reported that on June 11, 2002, after a flight from

Boise to Minneapolis, he boarded a shuttle bus

and was seated across the aisle

from a man who later identified himself as Greg Anderson.

Boyle had a conversation with Anderson during th

e ride in which Anderson said he was in

Minneapolis because his “best client wanted him

to help his close friend Gary Sheffield who was

in a slump and struggling at the time.”

According to the letter, Anderson told Boyle that Sheffield’s team was playing the

Twins that week and Anderson had “come to wo

rk with him.” When Boyle asked what in

particular Anderson did for his baseba

ll player clients, Anderson responded:

[H]e will usually reserve the hotel exercise facility and work

privately with Sheffield on body mech

anics, weights and also take

a blood or urine sample, test it to

determine if his body chemistry

is what it should be, and then

give him nutritional supplements.

Anderson confirmed to Boyle that his “best clie

nt” was Barry Bonds. Bo

yle concluded the letter

by stating he “felt his co

nversation was sufficiently important to

report it to you in light of the

legal proceedings pending in another federal district.”

353

Through his lawyer, Boyle confirmed

to us the events described in his letter.

In September 2003, when federal agents executed a search warrant on Greg

Anderson’s condominium, they cited a February 2003 FedEx receipt from Gary Sheffield to

BALCO as evidence of probable

cause to conduct

the search.

354

In his 2007 book entitled

Inside

Power

, Sheffield acknowledged he had received a bill from

BALCO for what he called

353

Letter from Magistrate Judge

Larry M. Boyle to Allan H.

“Bud” Selig, dated Mar. 16,

2006.

354

See

Affidavit of Special Agent Brian Wa

tson in Support of Request for Search

Warrants, sworn to on Sept. 3, 2003, ¶ 10.

137

“vitamins” and claimed he did not know whethe

r the “cream” he acknowledged using during his

grand jury testimony had contained steroids.

355

In his book, Sheffield recounted his grand jury testimony as follows: “‘I applied

this cream to my knees.’ I told them ‘I didn’t know it was steroi

ds. Whatever it was, it didn’t

make me stronger.’”

356

Sheffield then claimed in his book:

“I had no interest in steroids.

I didn’t need them, and I didn’t want them.”

357

His book asserted that

he “never touched a

strength-building steroid in [his] life – and never will.”

358

In his book, Sheffield attributed the incr

ease in home runs in Major League

Baseball after the 1994 strike to wi

despread steroid use, and he cl

aimed that at the time he asked

the Commissioner to investigate

the issue, only to be ignored.

359

Selig denied that he ever

received such a request from Sheffield.

h. Randy Velarde

Randy Velarde admitted to us, through his lawyer, that he had used performance

enhancing substances he obtained from Greg Ande

rson. According to his lawyer, if interviewed,

Velarde would have told us he received the “cream” and the “clear” from Anderson in a

transaction that occurred in a parking lot during

spring training in 2003. Velarde was playing for

the Oakland Athletics at the time, was near the

end of his career and was attempting to play for

another year to support his family.

355

Gary Sheffield and David Ritz,

Inside Power

183 (Random House 2007).

356

. at 184-85.

357

Id.

at 183.

358

. at 184.

359

138

VIII. Information Obtained Regarding Other Players’ Possession

or Use of Steroids and Human Growth Hormone

A. Background

On December 14, 2005, federal law enforcemen

t agents executed a search warrant

at the home of Kirk Radomski, a personal traine

r and former employee of the New York Mets

who was suspected of selling anabolic steroi

ds and human growth hormone to professional

baseball players.

360

During the search, agents seized

documents relating to Radomski’s

distribution of performance enhancing substances, primarily to

Major League Baseball players,

including Radomski’s address book and receipts

documenting the shipment of packages to

players.

361

Radomski then began cooperating with the

United States Attorney’s Office for the

Northern District of California, and that coope

ration continues to this day. After he began

cooperating, Radomski obtained

and produced many other documents, among them copies of

cancelled checks, money orders, other ba

nk records, and te

lephone records.

Kirk Radomski’s Cooperation

On April 26, 2007, Radomski signed a plea agreement with the U.S. Attorney’s

Office, in which he agreed to plead guilty to one count of distribution of

anabolic steroids and

one count of money laundering.

362

In that agreement, Radomski admitted that from 1995 until

360

Redacted Affidavit in Support of

Application for a Search Warrant,

United States v.

Unidentified Premises

, No. 05-1539 (E.D.N.Y. Dec. 13, 2005); U.S. Federal News,

Information

Issued by U.S. Attorney’s Office for the Northern

District of California: Steroid Dealer to Major

League Baseball Players Pleads Guilty

(Apr. 27, 2007).

361

See

Juliet Macur,

Guilty Plea Widens Ba

seball’s Steroids Scandal

, N.Y. Times,

Apr. 28, 2007, at A1;

see also

T.J. Quinn,

Foul Air in Baseball; Confession of Ex-Mets Attendant

and Steroid Dealer Threatens Tremor

, N.Y. Daily News, Apr. 29, 2007, at 58.

362

Plea Agreement,

United States v. Kirk J. Radomski

, CR No. 07-0222 (N.D. Cal.), at 1.

A copy of the plea agreement is included in the Appendix.

139

December 2005 he distributed anabolic steroids

, human growth hormone, and clenbuterol, as

well as amphetamines, to “dozens of current and

former Major League Baseball players . . . and

associates,” and that his network

of clients ultimately could be tra

ced to contacts he made during

his “past employment in Major League Baseball.”

363

Radomski’s guilty plea was entered the

next day.

The plea agreement required Radomski to

cooperate with the U.S. Attorney’s

Office, which directed Radomski to provide comple

te and truthful information to me and to my

investigative staff as part of his cooperation.

364

I agreed that I would not make any public

statements about the information provided by Rado

mski, including the statements in this report,

without the approval of that Office. Given th

e ongoing nature of Rado

mski’s cooperation, the

U.S. Attorney’s Office required this agreement

to assure itself that

nothing I published would

compromise any of its ongoing inve

stigative efforts and

that, in that Office’s view, I accurately

reported the evidence supplied by Radomski. I agr

eed to this condition and have complied with

it. I am grateful to the U.S. A

ttorney’s Office for its cooperation.

The U.S. Attorney’s Office has agreed to recommend that Radomski receive a

more lenient sentence if it concludes that he

cooperated completely and truthfully, including with

regard to the information he provided to me.

Radomski also has been advised that if the

U.S. Attorney’s Office concludes he has not been

truthful or candid with

that Office or with me,

he not only could lose the benefit of a recommen

dation of a lesser sentence but could be subject

to additional prosecution.

363

Radomski Plea Agreement at 3, lines 6-7, 11.

364

Radomski Plea Agreement at 5, lines 11-24;

Press Release, U.S. Dep’t of Justice,

Steroid Dealer to Major League

Baseball Players Pleads Guilty

(Apr. 27, 2007).

140

In addition to his statements, Radomsk

i provided us with copies of bank,

telephone, and other records that corroborated hi

s statements. Copies of the checks and money

orders relating to reported purch

ases of performance enhancing

substances by the players who

are named in this section are attached to this repo

rt in an appendix. We have redacted the copies

of checks, money orders, and other documents th

at are reproduced in

this report to remove

spouses’ names, account numbers, addresses, and other non-relevant information.

Radomski told us that the checks and mone

y orders he provided did not reflect the

full breadth of his distribution network, for several reasons.

Although Radomski approached the

banks he had used while distributi

ng illegal substances in an effort

to retrieve all records they

had of checks deposited into his accounts, the

banks could only obtain copies of some of his

deposited checks and could not provide any ch

ecks which pre-dated 2000. Radomski, however,

began selling steroids and other substances in the mid-1990s. Additiona

lly, Radomski stated

that, on many occasions, he cashed checks or mone

y orders instead of depositing them, and the

banks did not retain copies of cashed checks or

money orders that were not deposited into

Radomski’s accounts. Finally, Radomski sometimes

was paid in cash. As a result, in most cases

the number of sales Radomski stated he made to

a particular player does

not correspond to the

number of checks from the player that Radomsk

i was able to retrieve from his banks.

Where checks or money orders were

not available, other documents often

corroborated Radomski’s testimony. For exampl

e, he provided detailed telephone records

covering the period from June 2004 to June 2006. They show many calls made to telephone

numbers that correspond to the numbers

of Major League Baseball players.

365

Radomski’s

address book also was provided to us in the form in

which it existed when fe

deral agents seized it

365

Copies of earlier records were not ava

ilable, according to Radomski’s telephone

company.

141

during the execution of a search warrant at his home in December 2005.

366

It includes many

names and addresses of current and former Major

League Baseball players. He also maintained

copies of some delivery receipts

, although he said that in the or

dinary course of housekeeping he

had discarded most of those documents and th

e few that were found by federal agents when

executing their search warrants were simply “ones [he] missed.”

2. Radomski’s Employment with the New York Mets

Growing up, Radomski lived near Charli

e Samuels, the longtime equipment

manager for the New York Mets. In the earl

y 1980s, Radomski began

helping out around the

clubhouse in an informal capacity as a batboy.

He was formally hired as a home clubhouse

attendant in 1987. He worked in the Mets cl

ubhouse in various capacities until November 1994,

when he left because the team restructured the compensation of clubhouse staff and the pay was

less than the income he could earn as a personal

trainer. His departure

was not related to his

involvement with steroids, and Radomski stressed

that Samuels never had any knowledge of that

involvement.

Radomski developed many friendships with

players while he was working with

the Mets, especially af

ter he began attending spring trai

ning in 1988. Around that time, he

became interested in weight training and began

exercising regularly at

a gym in the Bronx. In

the early 1990s, Radomski deci

ded he wanted to become a competitive bodybuilder. He knew

the use of anabolic steroids was pr

evalent in that sport, and he di

d a great deal of research about

various types of steroids and thei

r effects. He began using Wins

trol and Deca-Durabolin in six-

to-eight-week cycles.

366

I refer in this report to Radomski’s

“address book”; it is a collection of unbound

papers that list names, addr

esses, and telephone numbers.

142

In 1993, when Radomski arrived at spri

ng training significantly bigger, many

players noticed and asked him about his size and

training program. He told them he was using

steroids as part of his training

regimen. Even before then, players had consulted Radomski about

diet and weight training because

it was obvious from his own habits and appearance that he was

knowledgeable about those subjects. He often pr

epared nutritional shakes

in the clubhouse for

his own use as well as for Mets players who asked him to do so.

3. Radomski’s Distribution

of Performance Enhancing

Substances to Major League Base

ball Players

Radomski said that his dealing in perf

ormance enhancing substances began in

response to inquiries from player

s. Radomski had many conversations with players in which he

discussed the pros and cons of

various performance enhancing subs

tances, as well as how to use

them, what their side effects were, and whether th

eir use could be detected in drug tests. Many

players who contacted Radomski about these issu

es never bought any illegal substances from

him.

A number of players to whom Rado

mski supplied performance enhancing

substances confirmed that he

never solicited them to purchase

these substances. The former

players we spoke with confirmed that Radomsk

i’s distribution networ

k grew through word-of-

mouth referrals among major league

players. On some occasions, players acted as intermediaries

to obtain steroids or human growth hormone fr

om Radomski on behalf of their teammates or

friends.

Radomski met with a number of players wh

ile they were in New York. Most of

his business, however, was conducted by telephone

and by mail or express delivery service. In

those instances, Radomski received payment thr

ough the mail (by check, money order, or cash)

and sent drugs by express mail or express deliver

y service to players at their homes, hotels or,

143

occasionally, to their attention at their teams’

clubhouses. Radomski said that no player ever

expressed concern about having ana

bolic steroids or human growth

hormone mailed to him at his

team’s clubhouse.

Even before drug testing began in Majo

r League Baseball, Radomski observed

that players were moving away from oil-based an

abolic steroids, such as

Deca-Durabolin, that

stay in the body for a long time. Instead, the pl

ayers increasingly requested water-based anabolic

steroids, such as Winstrol, and other drugs such

as clenbuterol and human

growth hormone, that

cleared the body faster and were less likely to

be detected. That tr

end continued after drug

testing began. Radomski recalled that seve

ral players asked him

whether human growth

hormone could be detected in urine tests. Chad

Allen, a former player who was a customer of

Radomski, told us that human growth hormone is

now the drug of choice for those players who

can afford it because it is not detectable. He

believes that Major League Baseball will always

have a difficult time keeping up with drug develo

pments because “there’s always someone ahead

of the curve who knows that he will make a quick buck.”

This is significant. Major League Baseba

ll has sharply increased the penalties for

violation of its testing program (a 50-game susp

ension is now imposed for a first offense). Yet

Radomski’s experience shows that, even before te

sting had started, the players began to migrate

to illegal performance enhancing substances that are more difficult or impossible to detect. This

evidence helps inform my judgment that an appr

oach that includes but is not limited to drug

testing is necessary to effectivel

y combat performance enhancing subs

tance use, as is set forth in

the Recommendations section of this report.

Radomski continued to make significan

t sales of steroids, human growth

hormone, and clenbuterol after

drug testing was in place. In

Radomski’s view, using human

144

growth hormone will not make a player stronger

but will decrease recovery time so that the

player can work out harder and more fr

equently to attain greater strength.

367

Radomski also

stated that he felt that the side effects of human growth hormone were le

ss severe than those of

anabolic steroids.

Radomski’s sources for anabolic steroids

were mainly “people he knew at the

gyms,” who he could not furt

her identify. He paid between

$100 and $300 per bottle, depending

on the substance. For human growth hormone,

Radomski approached pa

tients as they were

leaving pharmacies and offered to purchase a porti

on of their just-filled prescriptions. According

to Radomski, a typical human growth hormone

prescription included four boxes of human

growth hormone per month. As word spread th

at bodybuilders were intere

sted in human growth

hormone, individuals who had just filled their

prescriptions for the s

ubstance went to gyms

looking to sell the excess portio

ns of their prescriptions.

368

Radomski typically paid at least $1,000 or

more for one “kit” of human growth

hormone, which included seven vials of distilled

water and the same number of packages of

lypholized human growth hormone powder, but the

price depended on availability. He generally

367

Radomski himself took human growth hormone from 2002 or 2003 until 2005.

368

This phenomenon has been reported on before.

See

Thomas Zambito,

Pumped by

AIDS Drug; Some Bodybuilders Br

eak the Law to Score Serostim

, N.Y. Daily News, June 2,

2003, at 5;

see also

Tim Reiterman,

Black Market in AIDS Dr

ug Flourishes; Control of

Hormone is Laxer in California Than Elsewh

ere; Medi-Cal Says It

has Stiffened Rules

L.A. Times, Feb. 16, 2003, at 1. The office of th

e New York Attorney General estimated that

fraudulent sales of human growth hormone and ot

her prescription drugs am

ounted to ten percent

of New York’s $3 billion in Medicai

d drug expenses in 2002. Amy Klein,

5 Accused of Black

Market Drug Ring ; Police Fi

nd $4.5M in AIDS Medicines

, The Record (Bergen County, N.J.),

Aug. 29, 2003, at A1.

In his 2003 interview by federal law enforcement agents, Greg Anderson

reportedly said that he also “receive[d] the te

stosterone and human growth hormone that he

distribute[d] from AIDS patients in San Fran

cisco who have prescriptions for them.”

Internal Revenue Service Memorandum of Inte

rview of Greg Anderson, Sept. 3, 2003, at 3.

145

resold kits for $1,600 each, but in some instances

charged less depending on his relationship with

the player.

B. Information Regarding Purchases

or Use of Performance Enhancing

Substances by Players in Major Lea

gue Baseball

This section summarizes the information provided by Radomski and other

individuals concerning the illega

l purchase or use of perfor

mance enhancing substances by

current and former players in Major League Base

ball. Since this was not a judicial proceeding,

none of the persons who provided information testified under oath. However, Radomski, former

New York Yankees and Toronto Blue Jays stre

ngth coach Brian McNamee, and former major

league players Chad Allen and Larry Bigbie all

provided information during interviews attended

by federal prosecutors and law enforcement agents

during which each was advised that he faced

potential criminal exposure if he made false statements.

369

Radomski and McNamee were also

advised by their own personal lawyers before

providing their coope

ration and during the

interviews.

In addition, former Albuquerque Dukes st

rength coach Todd Seyler and former

major league player Adam Piatt both provided in

formation to our investigation. Both were

interviewed twice; Piatt was represented by his own lawyer during

both of his interviews. Seven

other former major league players and one current major league player admitted to their own use

or possession of performa

nce enhancing substances.

I carefully reviewed and cons

idered all of the informa

tion we received about the

purchase, possession, or use of performance enha

ncing substances by Major League Baseball

players.

369

See

18 U.S.C. § 1001 (providing for criminal

penalties for making knowingly false

statements “in any matter within th

e jurisdiction of the executive, le

gislative, or judicial branch

of the Government of the United States”).

146

1. Kirk Radomski provided substantial in

formation about the distribution of

performance enhancing substances, and in many cas

es his statements were corroborated by other

evidence. He did not, however, observe or pa

rticipate in the use of performance enhancing

substances by any player named in this report,

with one exception that is described below.

The corroboration took many forms, incl

uding: (a) the admission by eleven

players that Radomski ha

d supplied them with performance enha

ncing substances, as he had said

in our interviews of him;

370

(b) checks or money orders written to Radomski by some players in

appropriate amounts; (c) mailing receipts for ship

ments of performance enhancing substances by

Radomski to some players; (d) statements by ot

her witnesses supporting the allegations of use by

some players; (e) the names, addresses, and/or

telephone numbers of ma

ny players were found in

Radomski’s seized address book; (f) telephone records showing calls between Radomski and

some players; and (g) a positive drug test.

I did not include in this re

port the names of three player

s to whom Radomski said

he sold performance enhancing substances: two

of them because the players had retired from

Major League Baseball by the time of the allege

d sales; and one of them because the player

admitted that he had purchased and possessed the s

ubstances but denied that he had used them

and his version of events was corroborated by other credible evidence.

I interviewed Radomski four times (in

June, July, October, and November 2007),

three times in person, once by tele

phone. His personal lawyer pa

rticipated in three of the

interviews. Federal law enforcement officials and members of my staff participated with me in

all of the interviews. No one from the Co

mmissioner’s Office, any club, or the Players

Association participated in these interviews.

370

Two players admitted receipt and possession of illegal performance enhancing

substances sold by Radomski but denied they ever used them.

147

During each of the interviews, the law en

forcement officials warned Radomski

that if he made any false statements he woul

d forfeit their commitment to recommend a more

lenient sentence and he would face further criminal

jeopardy. Before the interviews, Radomski

had been debriefed extensively by federal prosecut

ors and agents. They subsequently confirmed

that the information he provided to

us in his interviews was consistent with the information he

had previously provided to them.

2. Six players are named in this chap

ter based on information obtained from

persons other than Radomski or former majo

r league strength and conditioning coach Brian

McNamee. In each case, these allegations ar

e supported by one or more of the following:

(a) checks; (b) prior consistent

statements; (c) a statement made

about a player’s use where the

witness was a friend of the player identified a

nd under circumstances in which the witness faced

criminal exposure for making a false statemen

t; (d) statements reporting a witness’s direct

observation of the player using a performance e

nhancing substance; or

(e) the player’s own

admission of his use.

3. Brian McNamee said that he was a

direct eyewitness and participant in

alleged illegal use by three players who he served

as a personal trainer.

I interviewed him three

times (in July, October, and December 2007)

, once in person and twice by telephone.

371

His

personal lawyer participated in each interview. Federal law enforcement officials and members

of my staff participated with me in all of

the interviews. No one from the Commissioner’s

Office, any club, or the Play

ers Association participat

ed in these interviews.

During each of the interviews, the law enfo

rcement officials warned him that he

faced criminal jeopardy if he made any false stat

ements. With respect to

two of the players,

371

In addition, a member of my investiga

tive staff interviewed him by telephone on a

fourth occasion in December 2007; his

personal lawyer also participated.

148

McNamee was acting against his financial interest

in disclosing this information. Before the

interviews, McNamee had been debriefed extensively by federal prosecutors and agents. They

subsequently confirmed that the information he pr

ovided to us in his interviews was consistent

with the information he had previously provided to them.

The players for whom evidence has been ga

thered of possession or use, or both,

of illegal performance enhancing substances defy categorization. They include winners of Most

Valuable Player and Cy Young awards, members of

All-Star teams and Wo

rld Series rosters,

players whose tenures in the major leagues were

long, and others whose tenures were brief. We

heard often about the pressure on marginal play

ers to use performance enhancing substances

because they believed they needed to do so to keep up with the competition or because the

money was so much greater for those who could

make the jump to the major leagues. For

example, Dr. Allan Lans, the former Mets Empl

oyee Assistance Program director, visited every

player in the Mets’ minor league organization who tested positive for performance enhancing

substances or drugs of abuse. The players

who tested positive for

performance enhancing

substances frequently offered this

explanation for using them.

From the outset, my objective in this inve

stigation has been “to gather facts,” to

prepare a report that is thorough, accurate, and fair

, and to “provide those

whose reputations have

been, or might be, called into

question by these allegations a

fair opportunity to be heard.”

372

Each player mentioned in this report, and ot

hers not mentioned, was provided that fair

opportunity; each was invited to meet with me, with

his personal lawyer and a lawyer from the

Players Association if he so chose, so that I could provide him with information about the

allegations against him and give him the opportunity

to respond. Most players declined to meet

372

Statement of Sen. George J.

Mitchell, dated Mar. 30, 2006.

149

with me. I gave careful consideration to the

explanations provided by the few players who did

agree to an interview, or, because of thei

r current major league club employment, were

compelled to do so.

The following discussion is organized in

roughly chronological order. Records do

not exist to document every transaction described

by witnesses. Radomski

stated that, with one

exception noted below, the payments he received

from professional baseball players were for

performance enhancing substances, as opposed to

personal training or othe

r services, and this

assertion was confirmed by those pl

ayers who agreed to speak with

us about their dealings with

him.

Lenny Dykstra

Lenny Dykstra played as an outfielder in

Major League Baseball with two clubs,

the New York Mets and Philadelphia Phillies, fr

om 1985 to 1996. As a player with the Phillies,

Dykstra played in three All-Star

games and finished second in Mo

st Valuable Player balloting in

1993.

Radomski first met Dykstra when he wa

s playing for the Mets and became “very

close with Lenny.” According to Radomski, wh

en Dykstra reported to spring training in 1989,

“his increased size was noticeable.” When Ra

domski asked him about his increased size,

Dykstra admitted to taking steroids. Radomski al

so recalled that Dykstra’s weight fluctuated

during that spring training. He stated that

members of the Mets’ management discussed

Dykstra’s weight fluctuations with

the team’s athletic trainers a

nd that “the trainers would just

laugh.”

373

As discussed earlier in th

is report, there were many ne

ws reports speculating about

Dykstra’s possible use of steroi

ds during his playing career.

See supra

at 66-67.

150

After the Phillies lost the 1993 World Seri

es, Dykstra called Radomski and asked

whether Radomski could get Dyks

tra steroids. Although Radomski

does not remember the exact

time frame, he recalled providing Dykstra with

Deca-Durabolin, Dianabol, and testosterone.

Since approximately 2000, the Commissi

oner’s Office has been aware that

Dykstra used anabolic steroids du

ring his playing career. At that

time, senior vice president for

security Kevin M. Hallinan, his deputy Martin

Maguire, and then-execu

tive vice president for

baseball operations Sandy Alders

on met with Dykstra and his doctor in an attempt to increase

their understanding of steroids. Hallinan said that

Dykstra admitted to using steroids, saying that

he used them to “keep his weight up” during

the season. According to Hallinan, Dykstra said

using steroids eliminated the need for

him to work out during the season.

In order to provide Dykstra with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet

with me; he never agreed to an interview.

David Segui

David Segui played as an infielder for

seven different teams in Major League

Baseball from 1990 until 2004, the Baltimore Oriole

s (8 seasons), New York Mets (parts of

2 seasons), Montreal Expos (parts of 3 seasons),

Seattle Mariners (parts of 2 seasons), Toronto

Blue Jays (part of 1 season), Texas Rangers (part of 1 season), and Cleveland Indians (part of

1 season).

In 1994, while Segui was playing for the Mets, he and Radomski became friends.

According to Radomski, Segui admitted to him that he used steroids during that season.

Radomski recalled that either at the very end

of Segui’s time with the Mets (1995) or shortly

thereafter, Segui showed him a bottle of anabolic

steroids he had received from Mexico (these

were veterinary steroids, according to Radomski

). In a subsequent meeting, Radomski gave

Segui without charge a bottle of Deca-

Durabolin and told Segui to try it.

151

Segui then began purchasing steroids from Radomski. According to Radomski,

Deca-Durabolin was Segui’s steroid of choice in the 1990s because it was safe, did not expire for

three to four years, and was thought to help a

lleviate joint pain. Deca-

Durabolin, however, stays

in the body for up to a year or more and

therefore is easily de

tectable in tests.

374

Radomski said

that Segui paid for the steroids by check althoug

h Radomski never asked him to pay for them.

Radomski produced six checks drawn on David Se

gui’s checking account that were deposited

into Radomski’s checking account. All are includ

ed in the Appendix. One is shown below.

Radomski said he engaged in more than

twelve transactions with Segui and dealt

with Segui more than any other player. Toward

the end of his career, Segui told Radomski that

he had a growth hormone deficiency and was ge

tting human growth hormone from a doctor in

Florida.

Segui’s name, with two addresses and se

veral telephone numbers

, is listed in the

address book seized by federal agents from

Radomski’s residence. Radomski’s 2004-05

374

In the view of steroid abusers, “[t]he

major drawback [of Deca-Durabolin] for

competitive purposes is that in many cases it will

be detectable for up to a year or more after

use.” William Llewellyn,

Anabolics 2006

122 (5th ed. 2006).

152

telephone records include eleven calls made by

Radomski to Segui’s number between July and

October 2004, when Segui retired from baseball.

Segui is the only player w

ho called Radomski after news of his plea agreement

was reported in the media. Segui asked Radomsk

i if there was anything he could do for him.

Radomski told Segui that he likely would have

to tell the government about Segui’s steroid and

growth hormone use, and Segui

responded that he did not care.

In a telephone conversation with members

of my investigativ

e staff and federal

investigators, Segui said that

he would not name any other pl

ayer and he declined to be

interviewed in person. In our te

lephone conversation, Segu

i stated that he st

ill thinks highly of

Radomski and that Radomski did not push drugs

on any player. According to Segui, Radomski

was “doing the players a favor” and they were

“lucky to have a guy like Radomski,” because

Radomski provided safe performa

nce enhancing substances, in c

ontrast to what the players

might receive from other sources.

Ultimately, Segui made his use public when he told ESPN in June 2006 that he

believed he was one of the players whose name

s had been redacted from a federal agent’s

affidavit in support of a search warrant fo

r Jason Grimsley’s residence in Arizona.

375

Larry Bigbie

Larry Bigbie played as an outfielder in

Major League Baseball from 2001 to 2006

for the Baltimore Orioles, Colorado Rockies, and St. Louis Cardinals. In 2007, Bigbie played in

the minor leagues.

Radomski said that David Segui introduced Bigbie to him. Segui and Bigbie were

teammates on the Orioles from

2001 through 2004. When Segui

came to New York, Radomski

375

See

Transcript: David Segui’s interview with ESPN

, espn.com (June 18, 2006);

see

also

Bob Nightengale,

Ex-player Segui Admits HGH Use

, USA Today (June 19, 2006), at C1.

153

occasionally socialized with him and some of

the younger Orioles players, one of whom was

Bigbie. Radomski’s first cont

act with Bigbie was in 2003. Ther

eafter, Radomski sold a variety

of performance enhancing substances to Bigbie

on a number of occasions. Bigbie consistently

paid by check. Because Bigbie was young and “not

making that much money,” Radomski said

he charged Bigbie no more than

his cost for the substances.

Radomski retrieved from his banks thr

ee checks written by Bigbie. All are

included in the Appendix. The first was dated

June 4, 2004, in the amount of $200, with a memo

stating “DUES.” Radomski believed this may have been payment for supplements, not

performance enhancing substances.

376

The second, dated March 5, 2005, in the amount of

$1,200, was for human growth hormone. This check is shown below. The third check, dated

May 6, 2005, in the amount of $1,300, with a memo stating “Supplements,” was for two kits of

human growth hormone.

376

Bigbie believes this check was most likel

y for an amount outstanding from an earlier

purchase for performance e

nhancing substances.

154

Bigbie’s name, with two addresses and a

telephone number, is listed in the

address book seized from Radomski’s residence

by federal agents. The agents also seized a

piece of a shipping receipt with Bigbie’s address.

Bigbie has been cooperating with federal

authorities in conne

ction with their

investigations into the illegal di

stribution of performance enhanci

ng substances. As part of his

cooperation and at the request of

federal law enforcement author

ities, Bigbie agreed to be

interviewed by members of my investigative staff.

Federal law enforcement agents were present

at the interview and advised him that any false

statements made in their presence during the

interview could be considered

a violation of federal law.

Bigbie’s account of his use

and interaction with Radom

ski was consistent with

Radomski’s account. Bigbie said that when he wa

s first promoted to the Orioles’ major league

club in June 2001, he quickly became a friend of

David Segui. Segui allowed Bigbie to live in

his house rent-free for the 2001 season.

According to Bigbie, Segui never “pus

hed” any drugs on him. Bigbie sought

Segui’s advice on how to become more “competitive.” Segui responded by educating Bigbie

about various training regimens a

nd the use of creatine. Bigbie

had never before used steroids

but wanted to be more competitive, and therefore raised the subject with Segui. Bigbie said that

Segui was knowledgeable about steroids; he descri

bed to Bigbie the types of steroids Bigbie

should use to gain weight and the type

s to use to “get more trim.”

Toward the end of the 2001 season, Bigbie used

Deca-Durabolin fo

r the first time.

Bigbie was afraid of needles, so he had Segui

inject him. Segui provi

ded the steroids at no

charge. Bigbie said that Segui initially plac

ed him on a cycle of Deca-Durabolin twice a week

and testosterone three times a week. Bigbie took a second cycle of steroids, this time Sustanon

155

(also supplied by Segui at no charge), which he

began in late November or early December 2001

and continued until spring training in 2002. He c

oupled this anabolic st

eroid use with regular

strength workouts.

377

Bigbie’s body underwent significan

t changes by spring training of 2002.

He said that “you can’t even compare it.” His weight increased from 190 pounds to 220 pounds,

but with only seven percent body fat. Bigbie said that when he reported to spring training in

2002, several players and the Orioles strength

coach commented on his enhanced physique.

378

In 2002, Bigbie was injured and essentially

missed the entire season. During the

off-season prior to the 2003 season, Bigbie used

Deca-Durabolin and testosterone from about

November until the start of spring training. He said that he was educ

ated enough about steroid

use by then that he thought he di

d not need guidance. He obtained

the steroids from a dealer at a

local gym, and a friend admini

stered the injections.

Bigbie believed that 2003 was a “make or

break” season for him, leading him to

use steroids extensively during th

e off-season. At Segui’s sugges

tion, he also used anti-estrogen

drugs, which he obtained from Segui, when he

stopped using steroids. Bigbie used Deca-

Durabolin and testosterone duri

ng the season. Once again, Segui s

upplied him with the anabolic

steroids at no charge.

377

Bigbie did give Segui a check for $1,000 at

the end of the 2001 season but said that

the payment was a gesture of thanks for allowing Bigbie to live rent-free at Segui’s house.

Bigbie noted that he was making the major l

eague minimum salary while Segui was making

$7 million a year.

378

Tim Bishop, the Orioles former strength a

nd conditioning coach, has been reported to

have said that a player on a vi

gorous weight program for five m

onths in the off-season would be

doing “very good” to gain ten pounds of muscle mass.

See

Mel Antonen,

USA Today Poll: 79%

of Players Want Drug Testing

, USA Today, July 8, 2002, at

4. Bishop reportedly said,

“Anything more than that, it’s a sure sign that something else is going on.”

Id.

When my

investigative staff asked Bishop about this quote

, Bishop acknowledged that it was accurate but

said that by “something else” he was referr

ing only to creatine and protein shakes.

156

Bigbie said he was unconcerned about Ma

jor League Baseba

ll’s “survey” drug

testing that began in 2003. He

knew all players would be tested

but that no one’s name would be

revealed in the event of a positive test.

Bigbie recalled meeting Kirk Radomski in

2003 during a trip to New York. Segui

introduced Bigbie and Brian Roberts to Radomski

over lunch. Afterward, Segui made a steroid

purchase from Radomski from in

side Radomski’s car, which, acco

rding to Bigbie, was heavily

stocked with performance enhancing substances

and paraphernalia. Roberts was not present.

Bigbie recalled being

“nervous as hell.”

379

After Bigbie first met Radomski, Radomski called

him occasionally to see how he was doing and just to

chat, but not to solicit steroid sales. Bigbie

never felt that Radomski pressured him to buy anything.

Later in the season, Bigbie pulled a hamstri

ng muscle. He was sent to Sarasota on

a rehabilitation assignment. To

help him recover from the injury and finish the season strong,

Bigbie purchased Sustanon and Deca-Durabolin from Radomski. Radomski addressed the

package to Bigbie at his condominium in Florida, and Bigbie mailed Radomski a check for at

least $500.

Bigbie stayed in Baltimore during the 2003

off-season. He trained with Orioles

strength and conditioning coach

Tim Bishop, but they did not

discuss performance enhancing

substances. That off-season, Bi

gbie used fewer steroids than

he had in the prior off-season

because he knew he would be tested in the co

ming season. At the beginning of the off-season, to

“jump-start” his training he di

d use some Deca-Durabolin and Sustanon for two or three weeks

(he was not using while he wa

s training with Bishop).

379

While Radomski did not recall this specific inci

dent, he said that it was possible that it

occurred.

157

It was at this time that he started to

learn more about human growth hormone

from Radomski, who said he could supply this su

bstance as well. Radomski explained to Bigbie

that there was no test for human growth hormone

, that it would make Bigbie stronger and keep

him lean, and that it would enhance his recovery from

wear and tear as well as improve his sleep.

Initially, Bigbie did not use human growth hormone because he was concerned about potential

side effects, such as organ enla

rgement, cancer and cyst growth.

He also was concerned that it

might hinder his ability to have children.

With the continuation of steroid testi

ng in 2004 by Major League Baseball, Bigbie

reevaluated his options. He switched to human

growth hormone before the 2004 season and

never again took steroids. He

paid Radomski approximately $1,300

for one kit of human growth

hormone, which he took every day for one month.

Bigbie was emphatic that the implementa

tion of drug testing was the only reason

he ever used human growth hormone. Before sw

itching to human growth hormone, he talked to

Segui. Bigbie knew Segui was

using human growth hormone, but Segui told him he used it

because his body was worn down from numerous inju

ries. According to Bigbie, Segui told him

that “everyone” was going to jump to human gr

owth hormone use after the implementation of

steroid testing. Bigbie did not

believe that he was seeing a benefit from using human growth

hormone that was comparable to the effects he had seen with steroids.

Bigbie was tested during 2004. He had no concerns about testing positive

because he was only taking human growth hormone then.

Bigbie estimated that he bought

five or six kits of human growth hormone from

Radomski in 2004 and 2005. He confirmed that

checks written on his account on March 5 and

158

May 6, 2005, payable to Radomski, for $1,200 and

$1,300, respectively, were each for one kit of

human growth hormone, which he used shortly after receipt.

Bigbie was traded to the Colorado Rockies on July 30, 2005. He said that he did

not use any performance enhancing substances du

ring his two-month tenure with the Rockies.

On December 7, 2005, Bigbie was traded to

the St. Louis Cardinals. He called

Radomski to order human growth hormone to pr

epare for spring training. Radomski by then was

cooperating with the federal author

ities, who monitored the call.

Bigbie was then approached by

federal law enforcement authorities

and began his cooperation with them.

Bigbie said he has not used performance

enhancing substances since he began to

cooperate with authorities. Bi

gbie stated that there was a lo

t of small talk among Cardinals

players about steroids, and he di

scussed performance enhancing substances with one player who

said that he had a source for any performan

ce enhancing substance Bigbie might want.

Brian Roberts

Brian Roberts is an infielder who has pl

ayed for the Baltimore Orioles since 2001.

He has been selected to two All-Star teams.

Roberts and Larry Bigbie were both rookies

in 2001. According to Bigbie, both

he and Roberts lived in Segui’s

house in the Baltimore area during th

e latter part of that season.

When Bigbie and Segui used steroids in

the house, Roberts did not participate.

According to Bigbie, however, in 2004 Roberts admitted to him that he had

injected himself once or twice with steroids

in 2003. Until this admission, Bigbie had never

suspected Roberts of using steroids.

In order to provide Roberts with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

159

Jack Cust

Jack Cust is an outfielder who began hi

s major league career with the Arizona

Diamondbacks in 2001. Since then, he has played fo

r five teams in Major League Baseball, the

Diamondbacks, Colorado Rockies, Baltimore Orioles,

San Diego Padres, and Oakland Athletics.

In 2007, he played with Oakland.

At the beginning of the 2003 season, Cust

and Larry Bigbie were both playing for

Baltimore’s class AAA affiliate in Ottawa. Bigbie’s

locker was next to Cust’s. Cust eventually

asked Bigbie if he had ever tried steroids. Bi

gbie acknowledged he had, and Cust said that he,

too, had tried steroids. Cust

told Bigbie that he had a sour

ce who could procure anything he

wanted, but Bigbie informed him he alre

ady had a friend who could supply him.

In order to provide Cust with informati

on about these allegations and to give him

an opportunity to respond, I asked him to meet with me; he declined.

Tim Laker

Tim Laker played as a catcher with five

different teams in Major League Baseball

between 1992 and 2006, the Montreal Expos, Baltimore Orioles, Tampa Bay Devil Rays,

Pittsburgh Pirates, and Cleveland Indians. Much

of his playing career was spent in the minor

leagues. In 2007, Laker managed a minor lea

gue affiliate of the Cleveland Indians.

Laker and David Segui were teammates

on the 1995 Montreal Expos. According

to Radomski, Segui introduced him to Laker. Although Radomski could recall only one or two

cash transactions with Laker in the late 1990s

involving Deca-Durabolin

and testosterone, Laker

acknowledged a total of four transact

ions during our interview of him.

As a current club employee, Laker was

required by the Commissioner to attend an

interview. Laker said that

he first considered using ster

oids before the 1995 season and

researched steroids by reading magazines and talki

ng to individuals outside of baseball about the

160

effects of steroids. Laker ultimately was convi

nced that using steroids would “enhance [his]

performance.”

Laker confirmed that he was introduced to Radomski during the 1995 season

while playing for the Montreal E

xpos. Laker said that he met

Radomski at Laker’s New York

City hotel when the Expos were in New York to play the New York Mets. Laker purchased

testosterone and syringes fr

om Radomski at the meeting, paying him between $500 and $1,000

in cash. Although Laker did not r

ecall the quantity of pe

rformance enhancing substances that he

purchased that day, he said that it was enough for

one or two cycles of from eight to ten weeks

each.

Laker’s next purchase of performance e

nhancing substances

from Radomski was

in late 1996 or early 199

7, after Laker completed his rehabilitation from elbow surgery. Laker

called Radomski and ordered testosterone and

syringes, which Radomski sent to Laker’s

California residence. Laker paid Radomski

approximately $1,000 by money order. In early

1998, Laker again called Radomski a

nd ordered testosterone and sy

ringes, which Radomski sent

to Laker’s California residence. Laker again pa

id by money order in th

e approximate amount of

$1,000.

Laker’s final purchase of performance e

nhancing substances from Radomski was

in person in 1999. Laker was playin

g for the Pittsburgh Pirates and was in New York for a series

of games with the Mets. Laker met Radomski

at his hotel and paid Radomski between $1,000 to

$2,000 in cash for testosterone and syringes. This

purchase lasted Laker

into the 2000 season, at

which time Laker said that he stopped using performance enhancing substances.

Laker followed the same regimen after

each purchase of performance enhancing

substances from Radomski. He

injected himself in the buttocks once a week for eight to ten

161

weeks, took some time off, and then repeated

the cycle. During home stands, Laker injected

himself at his residence. On the road, Laker in

jected himself in his hotel room but brought the

used syringes home with him to discard.

Laker said that he did not discuss his

performance enhancing

substance use with

any of his clubs’ coaches or management. He

did recall that Ron McLa

in, a Montreal Expos

athletic trainer, commented on Laker’s improved

physique in a manner that suggested that he

thought Laker might be using steroids.

Laker’s name, with a telephone number,

is listed in the address book that was

seized from Radomski’s residence by federal

agents. Laker admitted that the telephone number

was his.

Josias Manzanillo

Josias Manzanillo pitched for eight teams in Major League Baseball between

1991 and 2004, the Boston Red Sox, Milwaukee Brewers, New York Mets, New York Yankees,

Seattle Mariners, Pittsbur

gh Pirates, Cincinnati Re

ds, and Florida Marlins.

Radomski stated that when he was wo

rking for the Mets in 1994, Manzanillo

asked Radomski to inject him with the steroi

d Deca-Durabolin that Manzanillo provided.

Radomski did so in the Mets clubhouse. Radomski

said that this was the only instance in which

he actually observed a major l

eague player using steroids.

In order to provide Manzanillo with in

formation about these allegations and to

give him an opportunity to respond, I asked hi

m to meet with me. His lawyer proposed

arranging an interview, but we were unable to do

so before the completion of the investigation.

His lawyer provided the following proffer of what

Manzanillo would say if

he was interviewed:

Manzanillo claimed that a Mets cl

ubhouse attendant nicknamed “Murdock”

approached him repeatedly in th

e early 1990s and encouraged him to buy steroids. (Radomski’s

162

nickname when he worked in the Mets cl

ubhouse was “Murdock.”) The clubhouse attendant

reportedly told Manzanillo that

if he used steroids he would

gain velocity on his fastball.

Manzanillo ultimately paid for one cycle of

steroids from “Murdock”

for approximately $200-

$250. After paying for the steroids, Manzanillo’s

lawyer said, he “chickened out or thought

better of it” and never actually

took possession of the steroids.

Through his lawyer, Manzanillo

denied ever using performa

nce enhancing substances.

Radomski said that he did not sell any steroids to Manzanillo and that his only

substance-related involvement with

Manzanillo was when he inject

ed him with steroids in the

clubhouse. Radomski stated that he remembered

the event clearly because it was the only time

he ever injected a player with steroids.

In 2001, Manzanillo was playing with th

e Pittsburgh Pirates. According to

records produced by the Commissioner’s Offi

ce, on September 7, 2001, Jose Cervantes was

detained by a resident security agent at the A

ngels’ stadium in Anaheim. Cervantes reportedly

was found in possession of various prescription me

dications; he admitted that he brought drugs

across the Mexican border and sold them to a number

of major league players (but not steroids or

human growth hormone). Cervan

tes provided the investigators w

ith the names of those players

to whom he had sold drugs; he also provide

d them with his cell phone

and allowed them to

retrieve the telephone numbers of those player

s. Cervantes said that he provided anti-

inflammatory medications to Manzanillo, and

Manzanillo’s name and telephone number were

among those listed. Through his lawyer, Manzanillo

said that he “knew nothing about such an

incident” or why his name was in

Cervantes’s cell phone directory.

163

Todd Hundley

Todd Hundley played as a catcher with

three teams in Major League Baseball

from 1990 until 2003 (the New York Mets, Los Ange

les Dodgers, and Chicago Cubs). He was

with the Mets from 1990 to 1998. He played in All-Star games in 1996 and 1997.

Radomski has known Hundley since 1988, wh

en Radomski worked for the Mets

and Hundley played in the Mets’ minor league system.

380

Radomski stated that, beginning in

1996, he sold Deca-Durabolin and testosterone to

Hundley on three or four occasions. At the

beginning of that year, Radomski told Hundley that

if he used steroids, he would hit 40 home

runs. Hundley hit 41 home runs in 1996, having neve

r hit more than 16 in

any prior year. After

the season, Radomski said, Hundl

ey took him out to dinner.

Chris Donnels played with Hundley in 2000 when they were both with the

Los Angeles Dodgers. Donnels admitted to my in

vestigative staff that Radomski supplied him

with performance enhancing substances. Donne

ls recalled having extens

ive discussions with

Hundley about his performance enhancing substa

nce use and about Radomski while they were

teammates. Hundley’s name, with two addresses

and three telephone numbers, is listed in the

address book seized by federal agents from Radomski’s residence.

In order to provide Hundley with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Mark Carreon

Mark Carreon played as an outfielder

in Major League Baseball from 1987 to

1996, with the New York Mets, Detroit Tigers, Sa

n Francisco Giants, and

Cleveland Indians.

380

In 1988, Hundley played on Mets minor league

teams both in Little Falls and Port St.

Lucie.

164

Radomski worked for the Mets when Ca

rreon played for the club. Radomski said

that he provided Carreon with Dianabol pills

toward the end of his tenure with the Giants

(Carreon was with San Francisco from 1994 th

rough the middle of the 1996 season). He

believes that Carreon paid by check. According

to Radomski, Carreon told him that the “ball

was jumping off his bat” and that he could hit fa

rther because of the anabolic steroids he used.

In order to provide Carreon with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Hal Morris

Hal Morris played as an infielder with

four different teams in Major League

Baseball from 1988 until 2000, the New York Yankees (2 seasons), Cincinnati Reds

(10 seasons), Kansas City Royals (1 seas

on), and Detroit Tigers (part of 1 season).

Radomski said that he sold Deca-Durabolin

and testosterone to Morris in late

1999 when Morris was with the Reds. Morris paid by check.

381

Morris’s name, with an address

we have confirmed was his, is listed in th

e address book seized by federal agents from

Radomski’s residence.

In order to provide Morris with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet

with me. By letter from his lawyer, Morris

declined to meet with me. In that letter, Morri

s’s lawyer wrote that “M

r. Morris denies the use

of anabolic steroids, testoste

rone and/or human growth hor

mone during his Major League

career.” The letter did not deny that Morris had

purchased those substanc

es or had possession of

them during his career.

382

In reply, on November 8, 2007, I wrote to Morris’s lawyer asking

381

Radomski was unable to produce this check

; he could not obtain any checks dating

from earlier than 2000.

382

Letter from Jay K. Reisinger to Se

n. George J. Mitche

ll, dated Nov. 5, 2007.

165

whether Morris also denied that

he had purchased and possessed su

ch substances, and whether or

not he ever talked with Radomski.

383

In a letter he sent me in

response, Morris’s lawyer wrote:

It is our understanding that your in

vestigation is focused on the use

of performance enhancing substances

during a player’s Major League

career. Those issues, as they pertai

n to Mr. Morris, have been addressed

fully in my prior correspondence. In

light of Mr. Morris’ categorical

denial with respect to your allegation

s, responses to the inquiries in your

November 8, 2007 letter are unnecessary.

384

Matt Franco

Matt Franco played as an infielder with three teams in Major League Baseball

between 1995 and 2003, the New York Mets

, Chicago Cubs, and Atlanta Braves.

Although Radomski stopped working for th

e Mets after th

e 1994 season, he

continued to socialize with Mets

players and personnel. Radomski

said he met Franco when he

played for the Mets and that he came to know Fr

anco “very well.” Radomski said that he sold

Franco steroids on one occasion in 2000 after Fr

anco called him to place

the order. This call

occurred, according to Radomski, after Ra

domski ran into Franco at an event.

Franco agreed to an interview by telephone

with my investigative staff. During

that interview, Franco denied ever purchasing

or using any performance enhancing substance.

Franco also denied that he ever

met, knew, or talked with Radomski, asserting that he had never

even heard of Radomski before the publicity over Radomski’s guilty plea.

Rondell White

Rondell White is an outfielder who has pl

ayed for seven teams in Major League

Baseball from 1993 to the present, the Montreal

Expos (8 seasons), Chicago Cubs (parts of

383

Letter from Sen. George J. Mitchell

to Jay K. Reisinger, dated Nov. 8, 2007.

384

Letter from Jay K. Reisinger to Sen.

George J. Mitchell, dated Dec. 3, 2007.

166

2 seasons), New York Yankees (1 season), Kansas

City Royals (part of 1 season), San Diego

Padres (part of 1 season), Detroit Tigers (2

seasons), and Minnesota Twins (2 seasons).

According to Radomski, White started

buying performance enhancing substances

from him in 2000. White bought both human growth

hormone and Deca-Durabolin. In our first

interview, before he had access to all the ch

ecks his banks were able to supply, Radomski

estimated he had engaged in “six to ten” transact

ions with White, some paid for with cash, others

paid by check. Subsequently, Radomski was able

to produce seven checks that he deposited

drawn on White’s checking account.

All are included in the Appendix. One is shown below.

Federal agents also seized from Radom

ski’s home a copy of a FedEx US Airbill

reflecting a delivery to “R. White” on a date in 2

005 that is otherwise illegible. White’s name,

with an address and several te

lephone numbers, is listed in the

address book seized by federal

agents from Radomski’s residence.

Radomski noted that White often over

paid Radomski for the performance

enhancing substances. Radomski either mailed

the performance enhancing substances to White

or delivered them to him in 2002 when White lived in New York.

167

Radomski recalled teaching White “a lot

about steroids and HGH” and “walking

him through the HGH injections for two hours on th

e phone one night.” White has had injury

problems during his career (including

four trips to the disabled lis

t) and told Radomski that he

needed performance enhancing substances to “stay on the field.”

In order to provide White with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Roger Clemens

Roger Clemens is a pitcher who, from

1984 to 2007, played for four teams in

Major League Baseball, the Boston Red Sox (13

seasons), Toronto Blue Jays (2 seasons),

New York Yankees (6 seasons), and Houston As

tros (3 seasons). He has won more than

350 games, seven Cy Young Awards, and was the Am

erican League Most Valuable Player in

1986. He was named to All-Star teams eleven times.

During the Radomski investigation, federa

l law enforcement officials identified

Brian McNamee as one of Radomski’s customer

s and a possible sub-distributor. McNamee,

through his attorney, entered into

a written agreement with the

U.S. Attorney’s Office for the

Northern District of California. The agreement provides that McNamee

will cooperate with the

U.S. Attorney’s Office. No truthful statemen

ts can be used against McNamee in any federal

prosecution by that Office; if, however, he should

be untruthful in any statements made pursuant

to that agreement, he may be charged with

criminal violations,

including making false

statements, which is a felony.

As part of his cooperation with the U.S.

Attorney’s Office, and at its request,

McNamee agreed to three interviews by me and

my staff, one in person and two by telephone.

McNamee’s personal lawyer participated in the

interviews. Also participating were federal

prosecutors and agents from the F.B.I. and the Internal Revenue Service. On each occasion,

168

McNamee was advised that he could face criminal

charges if he made any false statements

during these interviews, which were deemed by th

e prosecutors to be subject to his written

agreement with the U.S. Attorney’s Office.

McNamee attended St. John’s University in New York from 1985 to 1989,

majoring in athletic administra

tion. At St. John’s, he played

baseball. From 1990 to May 1993,

he was a New York City police officer.

In 1993, McNamee met Tim McCleary, the

assistant general manager of the

New York Yankees, who also had attended St. John’s. McCleary hired McNamee as a bullpen

catcher and batting practice pitcher for the New

York Yankees. In 1995, McNamee was released

from his duties after Joe Torre was named the new Yankees manager. From 1995 to 1998,

McNamee trained “Olympic caliber athletes” outside of baseball.

In 1995, McCleary was hired as the assist

ant general manager for the Toronto

Blue Jays. In 1998,

that club hired McNamee as its stre

ngth and conditioning coach, and he

served in that position from 1998 to 2000.

Roger Clemens signed with Toronto in

1997, after spending the first thirteen

years of his career with the Re

d Sox. After McNamee began working for the Blue Jays in 1998,

he and Clemens both lived at the Toronto SkyDome

(there is a hotel attached to the stadium).

McNamee and Clemens became close professionally

while in Toronto, but they were not close

socially or personally.

Jose Canseco was playing for the Blue Jays in 1998. On or about June 8-10,

1998, the Toronto Blue Jays played an away series

with the Florida Marlins. McNamee attended

a lunch party that Canseco hosted at his home in Miami. McNamee stated that, during this

luncheon, he observed Clemens, Canseco, and anot

her person he did not know meeting inside

169

Canseco’s house, although McNamee did not pers

onally attend that meeting. Canseco told

members of my investigative staff that he had

numerous conversations with Clemens about the

benefits of Deca-Durabolin and Winstrol and how

to “cycle” and “stack” steroids. Canseco has

made similar statements publicly.

385

Toward the end of the road trip which in

cluded the Marlins series, or shortly after

the Blue Jays returned home to Toronto, Clem

ens approached McNamee and, for the first time,

brought up the subject of using steroids. Clemens said that he was not able

to inject himself, and

he asked for McNamee’s help.

Later that summer, Clemens asked McNam

ee to inject him with Winstrol, which

Clemens supplied. McNamee knew the substance wa

s Winstrol because the vials Clemens gave

him were so labeled. McNamee injected Clemen

s approximately four times in the buttocks over

a several-week period with needles that Clem

ens provided. Each incident took place in

Clemens’s apartment at the SkyDome. McName

e never asked Clemens where he obtained the

steroids.

During the 1998 season (around the time of

the injections), Clemens showed

McNamee a white bottle of Anadrol-50.

386

Clemens told McNamee

he was not using it but

wanted to know more about it. McNamee told Cl

emens not to use it. McNamee said he took the

385

Jose Canseco,

Juiced: Wild Times, Rampant ‘R

oids, Smash Hits and How Baseball

Got Big

211-13

(Regan Books 2005).

386

Anadrol 50 is the brand name for oxyme

tholone and, according to a reference book

targeted at steroid abusers, “i

s considered by many to be the mo

st powerful steroid commercially

available.”

See

William Llewellyn,

Anabolics 2006

99 (5th ed. 2006). It can harm the liver and

produce pronounced androgenic side effects.

Id.

at 100.

170

bottle and gave it to Canseco.

387

McNamee does not know where Clemens obtained the

Anadrol-50.

According to McNamee, from the time that McNamee injected Clemens with

Winstrol through the end of the 1998 season, Cl

emens’s performance showed remarkable

improvement. During this period of improved performance, Clemens told McNamee that the

steroids “had a pretty good effect” on him. McNa

mee said that Clemens also was training harder

and dieting better during this time.

In 1999, Clemens was traded to the New York Yankees. McNamee remained

under contract with the Blue Jays for the 1999

season. In 2000, the Yankees hired McNamee as

the assistant strength and conditioning coach

under Jeff Mangold. According to McNamee, the

Yankees hired him because Clemens persuaded th

em to do so. In this capacity, McNamee

worked with all of the Yankees players.

McNamee was paid both by the Yankees and by

Clemens personally. Clemens hired McNamee to

train him during portions of several weeks in

the off-season. McNamee also trained Clemens

personally for one to two weeks during spring

training and a few times during the season. McNa

mee served as the Yankees’ assistant strength

and conditioning coach through the 2001 season.

388

McNamee first learned about Kirk Radomski through David Segui during the

2000 season. Also that season, McNamee obtained Radomski’s telephone number from Jason

Grimsley. McNamee wanted to buy a Lexus, and Radomski had a connection with a Lexus

dealer. Radomski recalled that Grimsley was a frequent customer for performance enhancing

387

McNamee stated that he showed the bo

ttle to Canseco because he thought that

Canseco was knowledgeable and he felt comfortabl

e approaching him. According to McNamee,

Canseco volunteered to take the bottle.

388

In his own interview, Mangold was reluctant to discuss McNamee in any respect.

Mangold said that he was not aware of, and neve

r suspected, any player of using performance

enhancing substances.

171

substances, and he produced nine checks wr

itten by Grimsley to Radomski during 2001 and

2002 and fourteen checks in total.

According to McNamee, during the middl

e of the 2000 season Clemens made it

clear that he was ready to use steroids again.

During the latter part

of the regular season,

McNamee injected Clemens in the buttocks four to six times with testosterone from a bottle

labeled either Sustanon 250 or Deca-Durabolin that McNamee had obtained from Radomski.

McNamee stated that during this same time

period he also injected Clemens four

to six times with human growth hormone he

received from Radomski, after explaining to

Clemens the potential benefits and risks of use.

McNamee believed that it was probably his idea

that Clemens try human growth hormone. Radom

ski instructed McNamee how to inject human

growth hormone. On each occasion, McNamee

administered the injections at Clemens’s

apartment in New York City.

McNamee said that he and Clemens did

not have any conversations regarding

performance enhancing substances from late 2000 until August 2001. McNamee did, however,

train Clemens and Andy Pettitte during the off-seas

on at their homes in Houston. Clemens often

invited other major league players who lived

in the Houston area to train with him.

McNamee’s training relationship with Cl

emens and others has been described

publicly. Peter Gammons reporte

d during spring training 2001:

Brandon Smith, an apprentice trainer

with the Yankees, describes Roger

Clemens’ day as follows: “He’s one of

the first players in every morning,

runs, does his program with Andy

Pettitte, does the team program

workout, goes to the weight room,

leaves, plays 18 holes of golf and

finally meets (trainer) Brian McNamee at 6 .. . . and a few other players –

for another workout. It’s incred

ible how much energy Roger has.”

389

Peter Gammons,

Indians Expecting Better Year

, espn.com, Mar. 11, 2001; see also

Gary Graves,

Clemens on Fire with Desire; Rigorous

Workouts Keep 38-year-old All-Star

Sharp, In Shape

, USA Today, July 10, 2001, at C3.

172

According to McNamee, Clemens advised him in August 2001 that he was again

ready to use steroids. Shortly

thereafter, McNamee injected

Clemens with Sustanon or Deca-

Durabolin on four to five occasions at Clemens’

s apartment. According to McNamee, he again

obtained these drugs from Kirk

Radomski. McNamee concluded fr

om Clemens’s statements and

conduct that Clemens did not like using human grow

th hormone (Clemens told him that he did

not like the “bellybutton shot”). To McNamee’

s knowledge, Clemens did not use human growth

hormone in 2001.

McNamee was not retained by the Yankees after the 2001 season. After that

season, Clemens never again asked McNamee to

inject him with performance enhancing

substances, and McNamee had no

further discussions with Clemens about such substances.

McNamee stated that Clemens did not tell hi

m why he stopped asking him to administer

performance enhancing substances, and McNa

mee has no knowledge about whether Clemens

used performance enhancing substances after 2001.

During the years that McNamee stated he

facilitated Clemens’s use of steroids

and human growth hormone, McNamee’s discussi

ons with Clemens about use of these drugs

were limited. McNamee assumed that Clemens used performance enhancing substances during

the second half of the season so that he would not

tire, but they did not disc

uss this directly. It

was Clemens who made the decision when he would use anabolic steroids or human growth

hormone. McNamee stated that he tried to e

ducate Clemens about these substances; he “gave

him as much information as possible.”

Clemens continued to train with Mc

Namee after he was dismissed by the

Yankees, according to both McNamee and press reports. In October 2006, after the Los Angeles

Times reported that the names of Clemens a

nd McNamee were among those that had been

173

redacted from an affidavit in s

upport of a search warrant for the

residence of Jason Grimsley as

allegedly involved with the i

llegal use of performance enha

ncing substances, Clemens was

reported to have said: “I’ll continue to use Mac [McNamee] to train me. He’s one of a kind.”

390

McNamee was quoted in a December 10,

2006 news article on steroids as

reportedly having said: “I never, ever gave Cl

emens or Pettitte steroids. They never asked me

for steroids. The only thing they asked me for were vitamins.”

391

McNamee told us that he was

accurately quoted but that he did not tell the tr

uth to the reporter who interviewed him. He

explained that he was tryi

ng to protect his reputation.

On May 15, 2007, the New York Daily News reported that Clemens had cut ties

to McNamee.

392

McNamee denied that and told us that

he trained Clemens after the article was

published. He added that Clemens now has a

home in the New York area, and McNamee

personally installed a gym there.

McNamee stated that he has no ill will

toward Clemens and “was always ahead

[financially] with Roger.” McNamee received

money for expenses from Clemens’s business

representatives. They paid McNamee for training

Clemens, and for his expenses. From time to

time Clemens also gave McNamee “extra money.”

Clemens never gave money to McNamee

specifically to buy performance enhancing substances.

Kirk Radomski recalled meeting McNamee through David Segui. Radomski

confirmed that he supplied McNamee with human

growth hormone and anabolic steroids from

390

Jack Curry,

Cloud Over Clemens’s Finale: He and Pettitte Deny Report

, N.Y. Times,

Oct. 2, 2006, at D1; Lance Pugmire,

The Nation; Clemens Is Named in Drug Affidavit

L.A. Times, Oct. 1, 2006, at A1.

391

See

William Sherman and T.J. Quinn,

Andy Totes Baggage to Bronx

, N.Y. Daily

News, Dec. 10, 2006, at 56. McNamee’s interact

ions with Pettitte are discussed below.

392

Christian Red with T.J. Quinn,

Roger Seeking Workout Help

, N.Y. Daily News,

May 15, 2007.

174

2000 to 2004. Although McNamee never told Radomsk

i the performance enhancing substances

obtained were for anything other than McName

e’s personal use, Radomski concluded that

McNamee was distributing the subs

tances to others based on the amounts he purchased and the

timing of the purchases.

Radomski knew McNamee was acting as pe

rsonal trainer for Roger Clemens,

Andy Pettitte, and Chuck Knoblauch (among others

), and he suspected McNamee was giving the

performance enhancing substances to some

of his clients. Occasionally, McNamee

acknowledged good performances by Knoblauch or

Clemens by “dropping hints,” such as

“[h]e’s on the program now.” McNamee never explicitly told Radomski that either Clemens or

Pettitte was using steroids or human growth

hormone. According to Radomski, however,

McNamee asked Radomski what types of substa

nces Radomski was providing to pitchers.

Radomski delivered the substances to

McNamee personally. Radomski recalled

numerous performance enhancing substance tr

ansactions with McNamee. Radomski also

sometimes trained some of McNamee’s non-professional athlete clients.

Radomski produced four checks from

McNamee that were deposited into

Radomski’s checking account and dr

awn on McNamee’s checking account.

393

All the checks

were dated in 2003 and 2004, after McNamee said

that he supplied Clemens, Pettitte, and

Knoblauch. McNamee said these purch

ases were for non-baseball clients.

McNamee’s name, with an address and te

lephone number, is listed in the address

book seized from Radomski’s resi

dence by federal agents. Radomski’s telephone records show

twelve calls to McNamee’s

telephone number from May through August 2004. Radomski was

393

One of the checks, in the amount of

$2,400, includes a memo stating “Loan Repay

Sub.” Radomski confirmed that he never loan

ed McNamee any money and that the check had

been for one-and-a-half kits of human growth hormone.

175

unable to obtain telephone records dating back

to the time when, according to McNamee,

McNamee was injecting Clemens.

Clemens appears to be one of the two

people associated with baseball – Andy

Pettitte is the other – who have remained l

oyal to McNamee after he left the Yankees.

394

Clemens has remained a source of inco

me for McNamee up to and including 2007.

Prior to my interviews of McNamee he

was interviewed by federal officials on

several occasions, during each of

which they informed McNamee that he risked criminal

prosecution if he was not truthful

. I was advised by those official

s that on each occasion he told

them about the performance enhancing substa

nce use of Clemens,

Andy Pettitte, and Chuck

Knoblauch (Pettitte and Knobl

auch are discussed below).

In order to provide Clemens with informa

tion about these allegations and to give

him an opportunity to respond, I asked him

to meet with me; he declined.

Andy Pettitte

Andy Pettitte is a pitcher who since 1995

has played with two teams in Major

League Baseball, the New York Yankees (10 seas

ons) and the Houston Astros (3 seasons). He

has been named to the All-Star team twice and

was Most Valuable Player in the 2001 American

League Championship Series.

McNamee began serving as Pettitte’s pers

onal trainer and started assisting Pettitte

in off-season workouts after the 1999 season.

According to McNamee,

during the 2001-02 off-

season, Pettitte asked him about human growth

hormone. McNamee said that he discouraged

Pettitte from using human growth hormone at that time.

394

Ben Bolch,

Clemens, Pettitte Deny Use of Drugs

, L.A. Times, Oct. 2, 2006, at D1.

176

From April 21 to June 14, 2002, Pettitte

was on the disabled list with elbow

tendonitis.

395

McNamee said that Pettitte called h

im while Pettitte was rehabilitating his elbow

in Tampa, where the Yankees have a facility,

and asked again about human growth hormone.

Pettitte stated that he wanted to sp

eed his recovery and help his team.

McNamee traveled to Tampa at Pettitte

’s request and spent about ten days

assisting Pettitte with his rehabilitation. McNa

mee recalled that he injected Pettitte with human

growth hormone that McNamee obt

ained from Radomski on two to four occasions. Pettitte paid

McNamee for the trip and his expenses; there

was no separate payment for the human growth

hormone.

According to McNamee, around the time in 2003 that the BALCO searches

became public, Pettitte asked what he should say if

a reporter asked Pettitte whether he ever used

performance enhancing substances. McNamee told

him he was free to sa

y what he wanted, but

that he should not go out of his

way to bring it up. McNamee al

so asked Pettitte not to mention

his name. McNamee never discussed these substances with Pettitte again.

After the 2001 season, Pettitte, like Cl

emens, continued to use McNamee’s

services and to serve as a source of income af

ter McNamee was dismissed by the Yankees. In a

2006 article, Pettitte “acknowledged an ongoing rela

tionship” with McNamee. Pettitte was

quoted as having said that he still talked to McNamee about once

a week. “Mac has trained me

professionally for a long time, and I’ll

continue to use Mac,” Pettitte said.

396

In order to provide Pettitte with informa

tion about these allegations and to give

him an opportunity to respond, I asked him

to meet with me; he declined.

395

See

Jack Curry,

Pettitte Relieved to Have Tendonitis

, N.Y. Times, May 1, 2002, at D3.

396

Ben Bolch,

Clemens, Pettitte Deny Use of Drugs

, L.A. Times, Oct. 2, 2006, at D1.

177

Chuck Knoblauch

Chuck Knoblauch played as an infielder

for three teams in Major League Baseball

from 1991 to 2002, the Minnesota Twins (7 seas

ons), New York Yankees (4 seasons), and

Kansas City Royals (1 season). He was th

e 1991 American League Rookie of the Year and

played on four All-Star teams.

Knoblauch played for the Yankees during 2000 and 2001, the two years when

McNamee served as the Yankees’ assistant

strength coach. McNamee provided personal

training services to Knoblauch.

McNamee said that he acquired human

growth hormone from Radomski for

Knoblauch in 2001. Beginning during spring trai

ning and continuing through the early portion

of the season, McNamee injected Knoblauch at

least seven to nine times with human growth

hormone.

Knoblauch paid Radomski through Jason

Grimsley and, once or twice, through

McNamee. (Radomski produced two checks fr

om Grimsley in 2001 that totaled $5,550.)

According to Radomski, McNamee suggested

to him that McNamee was obtaining human

growth hormone on Knoblauch’s behalf. Accord

ing to McNamee, on occasion Knoblauch also

procured his own supply of human growth horm

one. McNamee believed that Knoblauch’s other

source was Jason Grimsley.

In order to provide Knoblauch with info

rmation about these allegations and to

give him an opportunity to res

pond, I asked him to meet with

me; he did not respond to my

request.

Jason Grimsley

Jason Grimsley pitched for seven differe

nt teams in Major League Baseball

between 1989 and 2006, the Philadelphia Phillies (3 seasons), Cleveland

Indians (3 seasons),

178

California Angels (1 season), New York Yankees (2 seasons), Kansas City Royals (4 seasons),

Baltimore Orioles (2 seasons), and Arizona Diam

ondbacks (1 season). As previously discussed,

he was released by the Diamondbacks after it was pub

licly revealed that a

federal search warrant

had been executed upon his residence in 2006.

397

Kirk Radomski remembered meeting Jason Grimsley in 2000 when Grimsley was

pitching for the Yankees. In our first intervie

w, conducted before Radomski obtained complete

records from his banks, Radomski estimated he ha

d engaged in at least se

ven or eight sales to

Grimsley involving human growth hormone, De

ca-Durabolin, and diet pills from 2000 through

2003. Radomski ultimately produced fourteen check

s written by Grimsley (including cashier’s

checks for which Grimsley was the remitter) from June 2, 2001 through July 29, 2005, totaling

$35,400. All are included in the Appendix. One is shown below.

Grimsley’s name, with several addresse

s and telephone numbers, is listed in the

address book that was seized from Rado

mski’s residence by federal agents.

397

Associated Press,

Around the Majors; Feds Sear

ch Grimsley’s Residence

, L.A. Times,

June 7, 2006, at D4;

see supra

at 106-08.

179

Brian McNamee stated that in 2000, while

he was catching in the Yankee bullpen,

Grimsley showed him a white bottle he said he

had received from a pharmacist in Seattle.

Grimsley said the substance was “Winni 5,” which McNamee understood to be Winstrol tablets

at 5 milligram dosage. McNamee advised Grimsley

that steroids, taken orally, could be toxic.

As previously discussed, on June 6, 2006 fede

ral agents executed a search warrant

at Grimsley’s home in Scottsdale, Arizona.

398

The warrant was obtained after Grimsley decided

to stop cooperating with federal

agents; before that decision, Gr

imsley had been interviewed by

the agents for two hours and reportedly admitte

d using steroids, human growth hormone, and

clenbuterol over an extended

period during his career in

Major League Baseball.

399

Among

other things, Grimsley cited his use of the ana

bolic steroid Deca-Duraboli

n, saying he used it to

recover from shoulder surgery in 2000.

In order to provide Grimsley with inform

ation about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Gregg Zaun

Gregg Zaun is a catcher who has played

with seven teams in Major League

Baseball since 1995, the Baltimore Orioles (parts

of 2 seasons), Florida Marlins (parts of

3 seasons), Texas Rangers (1 season), Kansas City

Royals (2 seasons), Houston Astros (parts of

2 seasons), Colorado Rockies (part of 1 season)

and, most recently, the Toronto Blue Jays

(4 seasons).

Radomski believed that Jason Grimsley

referred Zaun to him when they both

played for the Royals in 2001. Someone else (Radomski could not remember who) called and

398

See

supra

at 106-08.

399

Redacted Affidavit of I.R.S. Special Agent Jeff Novitzky, sworn to on May 31, 2006,

at ¶ 16.

180

ordered steroids for Zaun. Although Radomski

never spoke to Zaun about the transaction,

Radomski received a check from Zaun for the st

eroids. Radomski produced that check, a copy

of which is included in the Appendix and is shown below.

Radomski confirmed the payment was for Deca-Durabo

lin and Winstrol. He also stated that he

sent the drugs to Zaun at the Kansas City Royals

clubhouse. The address for the Royals ballpark

was found in Radomski’s address book.

Radomski’s statement that he sold steroi

ds to Zaun is not the only allegation of

use by Zaun. As discussed earlier in this report,

in September 2002 Luis Perez, a bullpen catcher

for the Montreal Expos, was arrested for posse

ssion of a pound of marijuana. In January 2003,

he was interviewed by investigat

ors from the Commissioner’s Office.

400

Perez told those

investigators that he had pers

onally supplied anabolic steroids

to Zaun and seven other major

league ball players.

Tony Muser, Kansas City’s former manage

r, recounted an incident in which Zaun

denied steroid use. According to Muser, while

he was managing the Royals he once discussed

the dangers of performance enha

ncing substance use with Zaun wh

ile the two were sitting on the

400

See supra

at 99-101.

181

bench before a game. Specifically, Muser told

Zaun the story of how Don Rowe, a pitching

coach for Muser in the minor leagues, had used

steroids and developed

serious health problems

as a consequence. Muser explained to Zaun that

he was not accusing hi

m of steroid use, and

Zaun denied any such use.

In order to provide Zaun with information

about these allegations and to give him

an opportunity to respond, I asked him to meet with me; he declined.

David Justice

David Justice played as an

outfielder for four teams in Major League Baseball

from 1989 to 2002, the Atlanta Braves (8 seasons)

, Cleveland Indians (4 seasons), New York

Yankees (2 seasons), and Oakland

Athletics (1 season). He was

the Rookie of the Year in the

National League in 1990 and was the Most Va

luable Player in the American League

Championship Series in 2000. He was named to three All-Star teams.

Radomski said he made one sale to Jus

tice, which occurred

after the 2000 World

Series. Justice played for the Yankees that y

ear. Justice paid Radoms

ki by check for two or

three kits of human growth

hormone. Radomski said that he cashed this check.

Brian McNamee recalled that Justice aske

d him about human growth hormone in

2000 or 2001, while McNamee and Justice were

both with the Yankees. According to

McNamee, Justice admitted in this conversati

on that he had obtained human growth hormone

from Radomski.

We interviewed David Justice before we had knowledge of the Radomski and

McNamee allegations. Justice denied using perf

ormance enhancing substances himself, but he

provided the names of many players who, he susp

ected, had used steroi

ds. He emphasized,

however, that he did not have di

rect knowledge of any use by these

players. He stated that he

had had “thousands” of conversations about

possible steroid use in baseball.

182

Justice said that the Commissioner’s

Office and the major league clubs did

nothing during his career to discourage players fro

m using steroids. He said that during his

career he was never in a meeting

where the players were told “you

can’t take steroids” and that

“in my fourteen years there was never a menti

on of steroids” in any presentation given by any

club, the Commissioner’s Office, or the Players Associ

ation. Justice said that he had never been

warned of the side effects or consequences of st

eroid use and had never be

en told that steroids

were a banned substance.

After we learned of the statements made by Radomski and McNamee about

Justice, in order to provide Justice with inform

ation about these allegations and to give him an

opportunity to respond, I asked him to m

eet with me. He did not respond.

F.P. Santangelo

F.P. Santangelo played several positions

over short stints with four teams in

Major League Baseball between 1995 and 2001,

the Montreal Expos, San Francisco Giants,

Los Angeles Dodgers, and Oakland Athletics.

He is now a radio broadcaster.

Radomski believed that Sa

ntangelo was referred to

him by David Segui when

both played for the Expos between 1995 a

nd 1997. Radomski produced one check from

Santangelo dated October 23, 2000 in the amount of $1,400,

which Radomski said was payment

for a kit of human growth hormone. A copy of

that check is included in the Appendix and is

183

shown below.

Radomski also recalled sell

ing Deca-Durabolin and testosterone to Santangelo

once or twice during 2001 when Santangelo was w

ith the Oakland Athletics. Radomski believed

that Santangelo paid by check. Santangelo’s na

me, with an address and two telephone numbers,

is listed in the address book seized from

Radomski’s residence by federal agents.

Adam Piatt is a former major leaguer who was interviewed during this

investigation. Piatt and Santangelo played

together at Oakland’s

class AAA affiliate in

Sacramento during the 2002 season. Santangelo

provided Piatt with Radomski’s name and cell

phone number in response to an inquiry by Piatt as

to where he could get performance enhancing

substances. Santangelo told Piatt th

at Radomski “will get you what you need.”

In order to provide Santangelo with in

formation about these allegations and to

give him an opportunity to respond, I asked him to meet with me; he declined.

Glenallen Hill

Glenallen Hill played as an outfielder with

seven teams in Major League Baseball

between 1989 and 2001, the Toronto Blue Jays, Clev

eland Indians, Chicago Cubs, San Francisco

Giants, Seattle Mariners, New York Yankees, an

d Anaheim Angels. In 2007, he was the first

base coach for the Colorado Rockies.

184

Radomski recalled meeting Hill at a social function in 2000 when Hill was still

playing in Major League Baseball

. Radomski said that Hill to

ld him that he was getting human

growth hormone in San Francisco

and was “not feeling anything.”

Radomski thereafter sent Hill

a “sample bottle” of human growth hormone without

charge and told him to

try it. Hill tried it

and told Radomski that he “felt everything you to

ld me I would feel.” Radomski told Hill the

human growth hormone Hill had been taking likel

y had spoiled. Hill purchased two kits of

human growth hormone from Radomski.

Radomski produced one check from Hill,

dated March 14, 2001, in the amount of

$3,200, his typical price for two k

its of human growth hormone. A copy of that check is

included in the Appendix and is shown below.

Hill’s name, with an address and telephone numbe

r, is listed in the address book seized from

Radomski’s residence by federal agents.

As a current club employee, Hill was requi

red by the Commissioner to attend an

interview for this investigation.

Hill’s recollection of his purch

ases of performance enhancing

substances differed from Radomski’s account.

Hill said he was given Radomski’s contact

185

information from a player Hill identified only as “David.” Hill also said he met this player

during the 1998 season. Hill said that “David”

admitted using steroids and was knowledgeable

about its effects and the different

types of anabolic steroids.

In late 2000, Hill contacted “David

” and was given Radomski’s contact

information. According to Hill, he had appr

oximately five telephone conversations with

Radomski about the use and effect

s of steroids. Hill recalled th

at Radomski sold him Sustanon.

Hill believed he paid him by check in either late

2000 or early 2001. According to Hill, he never

used the anabolic steroids th

at he bought from Radomski.

When asked why he ordered and paid for steroids but did not use them, Hill said

he was suffering from “marital stress” at the time

. According to Hill, this was the only reason

that he elected not to use the steroids he

bought. Hill said the ana

bolic steroids unknowingly

remained in his possession until spring training 2007 when, during the course of unpacking from

a move, he discovered them. Hill insisted th

at this was the only time he purchased any

performance enhancing substance and that he

has never used any performance enhancing

substance.

Hill said that, while he had between fi

ve and fifteen conversations during his

playing career with players about performance e

nhancing substances, he

could not remember the

names of any of the players with

whom he had discussed the subject.

Hill said that “David” was

the only individual who ever admitted to him that

he used performance enhancing substances.

With his personal lawyer present, Hill said his lawyers have told him that

disclosing the identities of players who used pe

rformance enhancing substances would harm his

career in Major League Baseball. Hill said his

lawyers are the only persons who have told him

that “nam[ing] names” could harm his career prospects.

186

Mo Vaughn

Mo Vaughn played as an infielder and de

signated hitter with three teams in

Major League Baseball between 1991 and 2003,

the Boston Red Sox (8 seasons), Anaheim

Angels (2 seasons), and New York Mets (2 s

easons). While with the Red Sox in 1995, he was

voted the American League Most Valuable Play

er. He played in three All-Star games.

Radomski said that Glenallen Hill refe

rred Vaughn to him. A former major

league player has confirmed that Hill and

Vaughn had a conversation in early 2001 in which

Radomski’s name was mentioned. Radomski recalled that Vaughn had an ankle injury and

called him for advice.

401

Radomski told Vaughn that human growth hormone would help his

ankle heal faster.

Radomski said that thereafter he so

ld human growth hormone to Vaughn.

Radomski also provided Vaughn with a program

for the use of the human growth hormone.

Radomski said that he delivered the substanc

es to Vaughn personally. Radomski produced three

checks deposited into Radomski’s account

s and drawn on Vaughn’s checking account: two

checks for $3,200 each, and one check for $2,200. All of the checks are included in the

Appendix. One is shown below.

401

Vaughn did not play for the entire 2001 season because of that injury.

See

Murray

Chass,

Baseball: Mets Land Vaughn with a Twist and a Tug

, N.Y. Times, Dec. 28, 2001, at S1.

187

Radomski said that the two checks in the amount of $3,200 were each for two kits

of human growth hormone. He stated that th

e check in the amount of

$2,200 might have been

for one-and-a-half kits of human growth hormo

ne. Radomski said that

he did not sell Vaughn

steroids because Vaughn was “afraid of the big needles.”

Radomski could not explain why Va

ughn was buying human growth hormone

twice within an eight

een-day span (two of the checks are dated June 1 and June 19, 2001,

respectively), but he thought th

at Vaughn either left his perf

ormance enhancing substances

behind when he traveled or allowed the earlier sh

ipment to spoil. Radomski also said that on

many occasions he received paymen

ts well after supplying the drugs.

Vaughn’s name, with an address and telephon

e number, is listed in the address

book seized from Radomski’s re

sidence by federal agents.

In order to provide Vaughn with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet

with me; he never agreed to an interview.

Denny Neagle

Denny Neagle pitched for six teams in Ma

jor League Baseball between 1991 and

2003, the Minnesota Twins (1 season), Pittsbur

gh Pirates (5 seasons), Atlanta Braves

(3 seasons), Cincinnati Reds

(2 seasons), New York Yankees (part of 1 season), and Colorado

Rockies (3 seasons). He has

played on two All-Star teams.

Radomski said he met Neagle at a club

in New York City in 2000 when Neagle

played for the Yankees. After they met, N

eagle called Radomski “looking for HGH.” Neagle

seemed familiar with human growth hormone

. Radomski said that from 2000 to 2004 he

engaged in five or six transactions with Neag

le involving human growth hormone and anabolic

steroids. Neagle always paid by check. At one

point, Neagle had anothe

r major league player

188

send a check to Radomski because that player owed Neagle money. Radomski stated that he

never sold human growth hormone or

steroids to the other player.

In addition to the other player’s check, Ra

domski produced copies of eight checks

from or on behalf of Neagle. All are incl

uded in the Appendix. One is shown below.

Radomski also produced a check from

Dan McGinn, Baseball Account, Coors

Field, 2001 Blake St., Denver, Colorado 80205, in the amount of $1,600. The memo line on the

check says “Neagle.” At the time, McGi

nn was a clubhouse attendant with the Colorado

Rockies. Radomski said that

the check was in payment for performance enhancing substances

purchased from him by Neagle. McGinn is no

longer employed by the Rockies and did not

respond to our requests for an interview.

Neagle’s name, with the address “Col

. Rockies Clubhouse” and several telephone

numbers, is listed in the addre

ss book that was seized from Rado

mski’s home by federal agents.

In order to provide Neagle with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Ron Villone

Ron Villone has been a pitc

her with ten teams in Major League Baseball since

1995, the Seattle Mariners, San Diego Padres, Milwaukee Brewers, Cleveland Indians,

189

Cincinnati Reds, Colorado Rock

ies, Houston Astros, Pittsburgh

Pirates, Florida Marlins, and

New York Yankees.

Radomski recalled that he was referred

to Villone by Denny Neagle. Both Neagle

and Villone played for the Colorado Rockies in

2001. Radomski said that from 2004 to 2005, he

made three sales to Villone, each for two kits

of human growth horm

one. Radomski often

recommended that his customers purch

ase two kits in a single order.

Villone first purchased human growth

hormone from Rado

mski during the 2004

season. Radomski sent this order to Villone at

the Seattle Mariners’ clubhouse. For the second

transaction, Radomski met Vill

one during the 2004-05 off-season

at a diner where Radomski

personally delivered the human growth hormone to him. Villone’s third purchase from

Radomski took place during the 2005 season. Radomski sent that package to Villone’s residence

in Seattle.

Radomski charged Villone $3,200 for each of

these three transactions. Villone

paid Radomski in cash each time. On two

occasions, Villone mailed Radomski a Mariners’

yearbook in which he had placed cash inside th

e pages of the book. On the one occasion when

Radomski delivered the human

growth hormone to Villone in

person, Villone handed him the

cash.

In mid-June 2006, Villone called Radoms

ki and inquired about obtaining more

human growth hormone. This phone call occurred

after the federal sear

ch warrant had been

executed on his home. Radomski informed Villone

that he “was dry” and did not have anything

to sell to him.

Villone’s name, with an address and tele

phone number, is listed in the address

book seized from Radomski’s

residence by federal agents.

190

In order to provide Villone

with information about thes

e allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Ryan Franklin

Ryan Franklin is a pitcher who has play

ed with four teams in Major League

Baseball since 1999, the Seattle Ma

riners, Philadelphia Phillies,

Cincinnati Reds, and St. Louis

Cardinals.

Radomski said that Ron Villone referred Fr

anklin to him. Villone and Franklin

were teammates in 2004 with the Seattle Marine

rs. Villone called Radomski and told him to

send Anavar and Deca-Durabolin to

Franklin, and Radomski did so.

On August 2, 2005, Ryan Franklin was suspended for ten games for a positive test

for anabolic steroids that

was conducted in May 2005.

402

Upon the announcement of Franklin’s

suspension, he is reported to have said

he had no idea how he tested positive.

403

Franklin added:

There has to be a flaw in the system.

I have no clue. I tested in [early]

May and again three weeks later. The first was positive, the second was

negative. There is a flaw in the te

sting or my urine got mixed up with

somebody else’s. They said that couldn’t happen but I don’t believe it.

I just know deep in my heart that

I’d never do anything like that.

404

In order to provide Franklin with inform

ation about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Chris Donnels

Chris Donnels played parts of eight seasons

as an infielder with five teams in

Major League Baseball between 1991 and 2002,

the New York Mets, Houston Astros, Boston

Red Sox, Los Angeles Dodgers

, and Arizona Diamondbacks.

402

See

Lee Jenkins, Palmeiro Case Centers on Popular Drug

, N.Y. Times, Aug. 3, 2005,

at D1.

403

Jim Street,

Franklin Suspended for 10 Days

, mlb.com, Aug. 2, 2005.

404

191

Radomski met Donnels while they were

both with the Mets in 1991 and 1992.

Radomski sold both human growth hormone

and steroids to Donnels from 2000 to 2004.

Radomski produced eight checks and money orde

rs from Donnels. The earliest was dated

November 29, 2001 and the latest June 23, 2004;

they totaled $9,950. The amounts of these

checks and money orders varied because, according to Radomski, Donnels paid him “whenever

he got money.” All are included in

the Appendix. One is shown below.

Donnels’s name, with an address and se

veral telephone numbers

, is listed in the

address book seized from Radomski

’s residence by federal agents.

Donnels agreed to speak with members of my

investigative staff. He said that he

had been expecting to hear from us. Donnels

said that his first discussions about anabolic

steroids occurred in 1993, when he was playing fo

r the Houston Astros. Ken Caminiti, who also

was then with the Astros, asked Donnels what he

knew about steroids, and

thereafter they spoke

frequently about the subject and conducted their own research. Caminiti eventually told Donnels

that he was going to try steroids; Donnels belie

ves that was the first time Caminiti had tried

them. Donnels felt that using st

eroids was “not the right thing

to do,” and he decided against

using the drugs then.

192

Donnels played in Japan for four y

ears and then signed with the Dodgers

organization in 2000 after reconstr

uctive shoulder surgery. He c

onsidered “taking something to

speed up his recovery,” and he recalled heari

ng “talk about HGH” during this time. Donnels

began researching human growth hormone on hi

s own. He knew that human growth hormone

was illegal, but he was also aware that Major Le

ague Baseball did not test for it. While on a

rehabilitation assignment with the Dodgers’ clas

s AAA affiliate in Albuquerque, he talked to

strength and conditioning coach Todd Seyler

about human growth hormone, and they both

conducted research on the internet. Seyler sa

id that Donnels admitted using human growth

hormone and seemed very knowledgeable about steroids.

One month into the 2001 season, Donnels hurt his back. He had 10 to

15 cortisone injections, and a D

odgers physician eventually told him he could not receive any

more injections. Donnels called Radomski, w

ho he had not spoken with since 1992. Donnels

does not remember who referred h

im to Radomski, but he recalls

having discussions with Todd

Hundley about performance enhancing substances and Radomski. After some discussions,

Radomski sold Donnels testosterone, Dian

abol, Deca-Durabolin, human growth hormone,

Vicodin, and amphetamines. Donnels said that

the steroids and human growth hormone “sat

around for awhile before [he] used them.”

Donnels did one six-week cycle of

steroids and human growth hormone

beginning in August 2001. Radomski sent Donnels a protocol dictating that he

inject the steroids

twice per week and inject the

human growth hormone every day

for two weeks. Donnels said

that he only took 25% to 50% of what Radomsk

i recommended. Donnels

recalled “feeling pretty

good going into the 2002 season.”

193

Donnels said that he told Dodgers athletic trainer Matt Wilson that he was

considering using performance enhancing substa

nces. Wilson told him to “look it up on the

computer” and said “I don’t need

to hear anything about it.”

405

After starting his cycle of steroids an

d human growth hormone in 2001, Donnels

was assigned to the Dodgers’ class AAA affiliate

in Las Vegas for rehabilitation. While there,

he was tested under the minor league testing prog

ram (which began in 2001). Donnels expected

to test positive but never heard an

ything about the results of his te

st. He speculated that he may

have been wrongly tested under the minor league

program because he was on the Dodgers’ 40-

man major league roster at the time. Donnels fe

lt that he “dodged a bul

let,” and the incident

“scared him straight.”

Nevertheless, Donnels continued to us

e human growth hormone because there

was no testing for it. Donnels stated that he

purchased human growth hormone from Radomski

in 2003 because his “body was going downhill,” and wh

ile playing in the minor leagues his team

had a chance to go to the playoffs.

Donnels said that he again purchased human growth hormone from Radomski in

2004. He had enjoyed playing in 2003 so much th

at he was “looking for a

farewell tour.” He

said that many players use performance enhancing s

ubstances “just to stay on the field, not to set

records.” Donnels ultimately d

ecided not to use the human growth hormone he purchased from

Radomski in 2004, however.

Donnels was approached by several players

about the availabili

ty of performance

enhancing substances during his playing days, and he referred several Major League Baseball

405

Wilson did not recall any such conversation with Donnels.

194

players to Radomski. Donnels contended he coul

d not remember the names of those players but

added that he probably would not identify any

players that he did know to be using.

Todd Williams

Todd Williams has played as a pitcher with

five teams in Major League Baseball

since 1995, the Los Angeles Dodgers, Cincinnati

Reds, Seattle Mariners, New York Yankees,

and Baltimore Orioles, among many assignments in the minor leagues.

In 2001, a season in which Williams played

in both Major League Baseball and

the minor leagues, Radomski stated that

he sold Winstrol to Williams once.

In order to provide Williams with information about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Phil Hiatt

Phil Hiatt played several positions in minor league baseball for fourteen seasons,

in Japan for one season and for parts of f

our seasons (1993, 1995, 1996, and 2001) played with

the Kansas City Royals, Detroit Tigers, and Lo

s Angeles Dodgers in Major League Baseball.

Radomski first spoke to Hi

att while he was with the Dodgers in 2001. Over the

span of several seasons, Radomski sold Hiatt

both human growth hormone and Deca-Durabolin.

According to Radomski, he sold these performa

nce enhancing substances to Hiatt on two or

three occasions.

For the first sale, Radomski

sent a package addressed

to Hiatt at the Dodgers

clubhouse. On another occasion, he recalled sendi

ng a package to Hiatt at a Florida address.

Radomski believed that he sent a third package to Hiatt when he was playing in the minor

leagues (Hiatt played in the

minors during the 2002-2004 seasons). He believed Hiatt paid by

money order.

195

Radomski also spoke on the phone with

Hiatt on a number of occasions. Hiatt

called Radomski from time to time with questio

ns about the use of performance enhancing

substances.

In order to provide Hiatt with informati

on about these allegations and to give him

an opportunity to respond, I asked him to meet

with me. He did not respond to my request.

Todd Pratt

Todd Pratt played as a catcher from 1992 to 2006 for four teams in Major League

Baseball, the Philadelphia Phillies (8 seasons),

Chicago Cubs (1 season), New York Mets

(5 seasons), and Atlant

a Braves (1 season).

Radomski became acquainted with Pratt

after he joined the Mets in 1997.

According to Radomski, Pratt informed him that

he had previously bough

t Deca-Durabolin from

another source.

Sometime in 2000 or 2001, while he was stil

l with the Mets, Pratt asked to buy

anabolic steroids. Radomski made one or two sa

les of small amounts of steroids to Pratt.

Radomski also recalled having a few discussi

ons with Pratt regard

ing their use.

In order to provide Pratt with informati

on about these allegations and to give him

an opportunity to respond, I asked him to meet

with me. He did not respond to my request.

Kevin Young

Kevin Young played as an infielder in

Major League Baseball from 1992 until

2003, for the Pittsburgh Pirates for nearly his entire career and for the Kansas City Royals for

one season.

Radomski first met Young in New York

City during the 2000-01 off-season.

Young later called Radomski. While Radomski

could not remember wh

o introduced him to

Young, he did remember that he was asked to bring two kits of human growth hormone to this

196

first meeting. Radomski said that he went

to lunch with Young and afterward went up to

Young’s hotel room where Radomski sold him one

or two kits of human growth hormone.

Young did not call Radomski again until 2003, during the final season of his

career. Radomski said that he

sold Young five or six kits of

human growth hormone on this

second occasion. He noted that he did not vi

ew this amount as unusual because Young needed

the human growth hormone to recover from linge

ring injuries, and Radomski believed a five or

six-month supply of human growth hormone was

necessary to complete such a recovery.

Radomski stated that Young mailed $9,600 in ca

sh to him as payment for this second

transaction.

406

Young’s name, with multiple telephone numbers, is listed in the address book

seized from Radomski’s residence by federal agents.

In order to provide Young with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Mike Lansing

Mike Lansing played as an infielder in

Major League Baseball from 1993 to 2001

with the Montreal Expos (5 s

easons), Colorado Rockies (3 seas

ons), and Boston Red Sox (parts

of 2 seasons).

According to Radomski, he was introdu

ced to Lansing by David Segui while

Segui and Lansing played together with the Expos.

Radomski recalled that he engaged in four to

five “small transactions” with Lansing. Radomski said that Lansing was familiar with

testosterone and “knew exactly

what he wanted.”

Radomski produced two $1,000 money orders

406

The Pirates released Young

at the end of June 2003.

See

Robert Dvorchak,

Pirates

Say Goodbye to Young

, Pittsburgh Post-Gazette, June 29, 2003, at D1. Young previously had

undergone surgery on his right knee.

See

Chuck Johnson,

National League: Who’s up, down

USA Today, Feb. 10, 2003, at 7C.

197

from Lansing, retrieved from his bank, made paya

ble to Radomski; both were dated February 5,

2002. Both are included in the Appendix; one is

shown below. Radomski stated that this

payment was for testosterone and

one kit of human growth hormone.

During the search of Radomski’s residence,

an undated, partial

shipping label was

seized with Lansing’s name on it and a Colorado

address. We have confirmed that Lansing

resided at this address when he

played with the Rockies. Lansing’s name, with an address and

two telephone numbers, is listed in the addr

ess book seized from Ra

domski’s residence by

federal agents.

In order to provide Lansing with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Cody McKay

Cody McKay played as a catcher in mi

nor league baseball for ten seasons

between 1996 and 2004. He was called up by the Oa

kland Athletics in 2002 and by the St. Louis

Cardinals in 2004.

McKay’s name is listed in the address book seized by federal agents from

Radomski’s residence, along with a telephone number

that is still listed to

and used by McKay.

McKay’s address in the address

book is the clubhouse address for

the Indianapolis Indians, a

minor league team where McKay played in 2003.

198

Radomski said that he is not certain

who referred McKay to him. He recalled,

however, conversations with McKay which led to

the sale of steroids shipped to the Victory

Field address in Indianapolis. Radomski also recalled one additional sale of steroids to McKay,

which he believed probably occurred in

2002 while McKay was playing for Oakland’s

class AAA affiliate in Sacramento. Radomski al

so recalled a number of

telephone conversations

in which McKay asked him about performance enhancing substance use.

In order to provide McKay with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Kent Mercker

Kent Mercker pitched for nine different

teams in Major League Baseball from

1989 to 2006, the Atlanta Braves, Baltimore Oriole

s, Cleveland Indians,

Cincinnati Reds,

St. Louis Cardinals, Boston Red Sox, Anaheim

Angels, Colorado Rockies, and Chicago Cubs.

Radomski stated that he sold one kit

of human growth hormone to Mercker in

October 2002. Mercker had recently undergone

surgery and, according to Radomski, was

seeking human growth hormone because he

believed it might accelerate his recovery.

407

Radomski sent the growth hormone by overnight mail; Mercker paid by check.

Radomski produced one check from Merc

ker to Radomski in the amount of

$1,600. The check number and date are not legible.

It is included in the Appendix and shown

below.

407

Regarding Mercker’s injury,

see MLB Notes

, Akron Beacon J., June 7, 2002, at C6;

Lions’ Boyd Decides to Call It Quits, Boston Globe, June 7, 2002, at E2; Troy E. Renck,

Improbability Hits Again, Mercker Sidelined Three to Six Weeks, Denver Post, June 7, 2002, at

D5.

199

During the search of Radomski’s home, federal ag

ents seized a copy of

an Express Mail receipt

indicating a shipment to Mercker on Octobe

r 29, 2002. A copy is included in the Appendix.

In order to provide Mercker with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Adam Piatt

Adam Piatt played as an outfielder with

two teams in Major League Baseball for

portions of four seasons between 2000 and 2003,

the Oakland Athletics and Tampa Bay Devil

Rays. In 1999, he was the Oakland Athletic

s’ Minor League Play

er of the Year.

After Radomski’s guilty plea was publicly

announced, Piatt’s lawyer contacted

us. We later interviewed Piatt, who voluntarily admitted his use of performance enhancing

substances. He accepted full responsibility for hi

s actions and said that he had learned an

important life lesson as a result. Piatt should

be commended for his candor, for his willingness

to admit that he made a mistake, and for accepting responsibility for his actions.

Piatt was called up to Oakland from the mi

nor leagues in 2000. He said that he

knew nothing at that time about

steroids or amphetamines.

In 2001, Piatt contracted a viral

infection and lost 24 pounds in ten days. This

illness affected his stre

ngth and caused extreme

200

stress. He tried to come back to play baseball

in August, but he was unsuccessful. Piatt said that

he worked hard during the off-season to be

physically prepared for 2002. During 2002, he

started considering using human growth hormone.

He researched the subject extensively that

year.

Piatt recalled that he learned of Ki

rk Radomski through F.P. Santangelo.

Santangelo and Piatt were teammates on the Oa

kland Athletics and on Oa

kland’s minor league

affiliate in Sacramento. Santangelo describe

d Radomski to him as a personal trainer who was

knowledgeable about dietary issues

and as a steroids supplier.

Before obtaining any substances, Piatt had

several conversations with Radomski.

They discussed Piatt’s diet and what Piatt shou

ld do and take to get in optimal shape for the

upcoming year. Radomski recommended that Piatt m

odify his diet and work on getting in shape

before he started using human growth hormone.

The conversations were

all by telephone. Piatt

never met Radomski in person.

Piatt believed he initially

obtained human growth hormone

and either testosterone

or Deca-Durabolin from Radomski. The substan

ces sat unused for a long time, however, before

he tried them. He was more concerned with th

e possible long-term health risks than with the

ethical issues.

He also thought about the problems he

was having in baseball. A friend on the

team told Piatt that he lacked the bat speed he

had enjoyed before his illness. Ultimately, Piatt

began using performance enhancing substances

during the 2002-03 off-season. Piatt’s typical

regimen was to take one shot of te

stosterone per week for three to five weeks. He also injected

himself with human growth hormone every day un

til he contracted carpal tunnel syndrome. He

talked to Radomski about this

side effect and then decrea

sed the frequency of his use.

201

Survey drug testing was conducted in Ma

jor League Baseball in 2003. Piatt did

not change his regimen because of that testi

ng. He was tested sometime during the summer.

Piatt retired from baseball in 2004 at the age

of 28 because he had lost his love for

the game. He believes that he could have played

longer. According to Piatt, the time he used

illegal substances was the only time he did not enjoy baseball. He thought he had “compromised

something.”

Piatt made some payments to Radomski

in 2004, but he said that those were to

satisfy old debts for 2003 shipments. He said he

had no need for, and did not use, human growth

hormone after he retired. Piatt noted that Radomski never en

couraged Piatt to use more

substances after Piatt said he wanted to stop.

Radomski provided eight ch

ecks from Piatt, with

dates ranging from 2002 to 2004, and totaling $1

1,550. All are included in the Appendix. One

is shown below.

Miguel Tejada

Miguel Tejada is a shortstop who has pl

ayed for two teams in Major League

Baseball since 1997, the Oakland Athletics (7 seas

ons) and Baltimore Orioles (4 seasons). He

was the American League Most Va

luable Player in 2002. He played in every game from June 2,

2000 until June 21, 2007, the fifth longest streak of

consecutive games played in Major League

202

Baseball history. Tejada has played

in four All-Star games and wa

s the Most Valuable Player of

the 2005 All-Star game.

In 2003, Adam Piatt’s locker was locate

d next to Tejada’s in the Oakland

Athletics clubhouse. According to

Piatt, Tejada asked specifically

if he had any steroids. Piatt

believed that Tejada asked him because Piatt was in

good shape and generally friendly with him.

Piatt had several conversations with Tejada

before a transaction occurred. Piatt

admitted he had access to steroids and human growth hormone and agreed to obtain them for

Tejada. Piatt recalled that he

provided Tejada with testosterone

or Deca-Durabolin, as well as

human growth hormone. Piatt em

phasized that he did not know wh

ether Tejada actually used

the substances.

Piatt’s bank provided two checks deposited

into Piatt’s account that had been

written to him from Miguel Tejada. The

checks are dated March

21, 2003 and are in the

amounts of $3,100 and $3,200 respectively. Both are

included in the Appe

ndix; one is shown

below.

Separately, before our interviews of him,

Piatt also spoke with federal agents by

telephone. Piatt had his personal la

wyer present for this call, as he

did in his meetings with me

203

and my investigative staff. The federal agents

later advised my staff that Piatt also informed

them of Piatt’s sales to Tejada during their telephone interview.

Radomski recalled receiving a call from

Piatt during which he said he needed

extra testosterone because “one of the guys want

ed some.” In a later conversation, Piatt told

Radomski that the testosterone was for his tea

mmate, Miguel Tejada. Ra

domski never spoke, or

sold performance enhancing substances, directly to Tejada. Radomski pr

ovided this information

to me without knowledge that I had spoken to Pi

att or that I was othe

rwise aware of Piatt’s

alleged sales to Tejada. Similarly, Piatt was

unaware of any statements by Radomski on this

subject when he was interviewed

by my investigative staff.

As discussed earlier in this report,

Tejada was intervie

wed as part of a

congressional investigation into

whether Rafael Palmeiro had

lied under oath about his use of

performance enhancing substances during a March 17, 2005 congressional committee hearing.

408

In that investigation, Palmeiro said he had re

ceived injectable, and le

gal, vitamin B12 from

Tejada; Palmeiro said it was possible the vitami

n B12 had been tainted and had been the reason

for his positive test for steroids. Tejada admitted to investigators that he provided injectable

vitamin B12 to Palmeiro and two other unidentif

ied Orioles players during the 2005 season. The

congressional report said that the Players Association had tested

another vial of vitamin B12

provided by Tejada and it s

howed no signs of steroids.

409

Tejada is also mentioned in two books on the subject. In

Juicing the Game,

the

author Howard Bryant wrote th

at during the 2002 season, an air

port security screener found a

syringe in Tejada’s briefcase. Tejada reportedl

y explained that he received a supply of vitamin

408

See supra

at 103-06;

see also

H. Comm. on Gov’t Reform,

Report on Investigation

Into Rafael Palmeiro’s March 17, 2005 Te

stimony Before the Comm. on Gov’t Reform

, at 6

(109

Cong. 2005) (“Palmeiro Report”).

409

Palmeiro Report at 9-10, 25, 27.

204

B12 from the Dominican Republic th

at he administered to himself.

410

Mickey Morabito, the

director of team travel for the Oakland Athletics,

confirmed the incident in an interview with my

investigative staff. He acknowledged that he di

d not report the incident to anyone with the club

or the Commissioner’s Office.

In his book

Juiced,

Jose Canseco wrote that, in 1

997, when he and Tejada were

teammates on the Athletics, they discussed the

use of performance enhancing substances:

I started giving him [Tejada] advi

ce about steroids, and he seemed

interested in what I was saying. Teja

da and I had a secret weapon: We

could speak in Spanish, which made it

easier to talk about whatever he

wanted, even if there were reporters around.

411

Tejada denied that he had ever had any discussi

ons with Canseco about steroids. He was further

reported to say: “I work very ha

rd to keep in shape and any sugge

stion that I use steroids, or any

banned substance is insulting and

not worth discussing further.”

412

In December 2005, Texas Rangers owner Thomas O. Hicks and general manager

Jon Daniels engaged in an email exchange about

possible trade discussions. In one email,

Daniels stated that he had “some steroids concer

ns with Tejada,” and cited Tejada’s decreased

productivity over the second half of the 2005 season.

413

In order to provide Tejada with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

410

Howard Bryant,

Juicing The Game

335 (Plume 2005).

411

Jose Canseco,

Juiced: Wild Times, Rampant ‘R

oids, Smash Hits and How Baseball

Got Big 177

(Regan Books 2005).

412

See

Associated Press,

Report: FBI Agent Says He Warned MLB about Steroid Use

Chi. Sun-Times, Feb. 16, 2005, at 134.

413

Email from Jon Daniels to Thomas O. Hicks, dated Dec. 15, 2005.

205

Jason Christiansen

Jason Christiansen pitched for four teams in Major League Baseball between

1995 and 2005, the Pittsburgh Pirates, St. Loui

s Cardinals, San Francisco Giants, and

Los Angeles Angels.

Radomski produced a check dated July 2,

2002 from Christiansen to Radomski in

the amount of $1,600. The check is

included in the Appendix and

is shown below. Radomski

stated that this was payment fo

r one kit of human gr

owth hormone and that this was a one-time

transaction.

In order to provide Christiansen with in

formation about these allegations and to

give him an opportunity to respond, I asked

him to meet with me; he did not respond.

Mike Stanton

Mike Stanton is a pitcher who has played Major League

Baseball with eight teams

since 1989, the Atlanta Braves (7 seasons), Boston Red Sox (parts of 3 seasons), Texas Rangers

(part of 1 season), New York Yankees (7 seas

ons), New York Mets (2 seasons), Washington

Nationals (parts of 2 seasons), San Francisco

Giants (part of 1 season), and Cincinnati Reds

(1 season). He has been selected to an All-Star team once.

206

Radomski met Stanton around 2001 while

he was pitching for the Yankees.

Radomski recalled making two sales of human growth

hormone to Stanton. The first occurred in

2003, during Stanton’s first season with the Mets

. Early in that season, Radomski mailed two

kits of human growth hormone to Stanton at his residence. Stanton paid Radomski $3,200 by

money order.

Radomski stated that he

dropped off one kit of hu

man growth hormone at

Stanton’s locker in the Mets

clubhouse later in the 2003 season.

Stanton paid $1,600 in cash for

that order. Radomski and Stan

ton spoke on the telephone two or three times in the course of

these sales.

In order to provide Stanton with information about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Stephen Randolph

Stephen Randolph is a pitcher who spent most

of his career in th

e minor leagues.

In 2003 and 2004, he played with the Arizona Di

amondbacks, and in 2007 he played with the

Houston Astros.

Radomski recalled that Chris Donnels

referred Randolph to him while Randolph

was with the Diamondbacks.

414

Radomski said that he spoke

to Randolph several times about

human growth hormone and then told Randolph to

do some research before using it. Radomski

said that he sold Randolph human growth

hormone thereafter, in 2003 or 2004. Randolph’s

name, with a telephone number, is listed in the

address book seized from

Radomski’s residence

by federal agents. Radomski mailed the package of

human growth hormone

to the address listed

in his address book.

414

Donnels denied that he in

troduced Randolph to Radomski.

207

In order to provide Randolph with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Jerry Hairston, Jr.

Jerry Hairston, Jr. has played in Major League Baseball since 1998, for the

Baltimore Orioles (7 seasons), Chicago Cubs (2 seasons), and Texas Rangers (2 seasons).

Hairston was referred to Ra

domski by David Segui, his teammate on the Orioles

from 2002 to 2004. Radomski said that he sold

human growth hormone to Hairston on two or

three occasions during 2003 and 2004.

Radomski produced one check from Hair

ston dated June 16, 2003. The check is

included in the Appendix and is shown below.

Radomski said that this check was fo

r one-half of a kit of human growth

hormone. Radomski recalled that Hairston under

paid him by $200. Hairston’s name, with an

address and two telephone numbers, is listed

in the address book seized from Radomski’s

residence by federal agents.

In March 2007, Sports Illustrated reported

that Hairston’s name was included in

customer records of Applied Pharmacy Servi

ces, a compounding pharmacy that has been the

208

subject of state and federal la

w enforcement investigations.

415

As discussed further below,

according to that report, Hairston received a

prescription for human growth hormone from a

doctor who allegedly wrote prescriptions fo

r thousands of online customers she never

examined.

416

Hairston spoke to the press after these re

ports appeared. He said, “It’s disturbing.

. . . I have no idea what this is about. I’m rea

lly in the dark. Not one time have I taken steroids

or anything like that. I would never do a

nything like that to

jeopardize my career.”

417

In order to provide Hairston with informa

tion about these allegations and to give

him an opportunity to respond, I asked him

to meet with me; he declined.

Paul Lo Duca

Paul Lo Duca is a catcher who has play

ed with three teams in Major League

Baseball since 1998, the Los Angeles Dodgers (7

seasons), Florida Marl

ins (2 seasons), and

New York Mets (2 seasons). He has a

ppeared in four All-Star games.

Todd Hundley referred Lo Duca to Rado

mski when Lo Duca played for the

Dodgers. Radomski estimated that he engaged in

six or more transactions with Lo Duca. In

some transactions, Radomski sent the performa

nce enhancing substances by overnight mail to

Lo Duca’s home or to the Dodgers clubhouse and Lo Duca sent Radomski a check a week or so

later.

415

See

Luis Fernando Llosa and L. Jon Wertheim, Documents: Hai

rston received HGH;

Bogus prescriptions at heart of probe; Player ‘baffled,’

SI.com, Mar. 2, 2007.

416

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62.

417

Luis Fernando Llosa and L. Jon Wertheim,

Documents: Hairston received HGH;

Bogus prescriptions at heart of probe; Player “‘baffled,”

SI.com, Mar. 2, 2007.

209

Radomski produced copies of three check

s from Lo Duca, each in the amount of

$3,200. All are included in the Appendix. Radomsk

i said that each check was in payment for

two kits of human growth hormone.

Lo Duca’s name, with an address and te

lephone number, is listed in the address

book seized from Radomski’s resi

dence by federal agents. During

that search, federal agents

also seized a note from Lo Duca to Radomski. It read:

Kirk,

Sorry! But for some reason they sent the check back to me.

I haven’t been able to call you back

because my phone is TOAST! I have

a new # it is [Lo Duca’s phone number is

listed here]. Please leave your #

again because I lost all of my phonebook with the other phone.

Thanks

Paul

In 2002, Lo Duca was quoted by Sports Illustrated in an article responding to Ken

Caminiti’s admission of steroid use. Lo Duca was

reported to have said: “If you’re battling for a

job, and the guy you’re battling with is using ster

oids, then maybe you say, ‘Hey, to compete,

I need to use steroids because he’s using them

. . . Don’t get me wrong. I don’t condone it. But

it’s a very tough situation.

It’s really all about

survival for some guys.”

418

According to the notes of an intern

al discussion among Lo

s Angeles Dodgers

officials in October 2003 that were referred to

above, it was reportedly

said of Lo Duca during

the meetings:

Steroids aren’t being used anymor

e on him. Big part of this.

Might have some value to trade .

. . Florida might have interest.

. . . Got off the steroids . . . Took away a lot of hard line drives.

. . . Can get comparable value back

would consider trading. . . . If

you do trade him, will get back on the stuff and try to show you he

418

The Steroid Fallout: Baseball Tries to Figur

e Out How to Deal with Latest Scandal

SI.com, May 29, 2002.

210

can have a good year. That’s his makeup. Comes to play. Last

year of contract, playing for 05.

419

On June 26, 2004, Lo Duca wrote a check

to Radomski for $3,200. On July 30,

2004, the Dodgers traded Lo Duca, Guillermo Mota, and Juan Encarnacion to the Marlins.

420

August 7, 2004, Lo Duca issued another check to Radomski for $3,200. In January 2005,

Lo Duca signed a three-year contract with the Marlins.

The handwritten note shown below on Dodge

r Stadium stationary from Lo Duca

to Radomski was seized from Radomski’s house during a search by federal agents. Radomski

said that this note was included with a check

Lo Duca sent Radomski as payment for human

growth hormone.

419

See supra

at 131 (discussing notes and meetings).

420

See

Jack Curry,

Johnson Stays, but Garciaparra Goes to Cubs

, N.Y. Times, Aug. 1,

2007, at Sports 1.

211

In order to provide Lo Duca with informa

tion about these allegations and to give

him an opportunity to respond, I asked him

to meet with me; he declined.

Adam Riggs

Adam Riggs played several positions in por

tions of four seasons with three teams

in Major League Baseball betw

een 1997 and 2004, the Los Angeles Dodgers, San Diego Padres,

and Anaheim Angels. He also played in the

minor leagues for eleven seasons. Since 2004, he

has played professional baseball in Japan.

According to Radomski, Lo Duca referred

Riggs to him. Radomski subsequently

engaged in six to ten transactions with Riggs

from 2003 to 2005. Radomski never met Riggs in

person. Radomski said that he

sold Riggs human growth hormone

, clenbuterol, and Winstrol.

212

Radomski produced five checks and money

orders that he received from Riggs

and deposited into his bank accounts. The da

tes ranged from July 10, 2003 to November 30,

2005. Four checks totaled $1,150; the other check am

ount was illegible. A

ll are included in the

Appendix. One of the money orders is shown below.

During the search of Radomski’s residence,

federal agents seized an Express Mail

receipt dated November 30, 2005 addressed to Ad

am Riggs. Riggs’s name, with a telephone

number, is listed in the addre

ss book seized from Radomski’s

residence by federal agents.

In order to provide Riggs with informati

on about these allegations and to give him

an opportunity to respond, I asked him to meet with

me; he declined. By letter, his lawyer stated

that Riggs “never tested positive for improper substances.”

Bart Miadich

Bart Miadich played professional base

ball as a pitcher from 1998 to 2006 but

played only portions of two seasons (2001 and 2003)

in Major League Baseball, both with the

Anaheim Angels.

Radomski recalled that Adam Riggs in

troduced him to Miadich. Radomski

described Miadich as a frequent purchaser of sma

ll quantities of testostero

ne and Winstrol from

213

2002 to 2005. Radomski also said that Miadich a

dvised him that he was getting human growth

hormone elsewhere. According to Radomski,

Miadich called him regul

arly, including when

Miadich was playing in Japan in 2005, when he

called to buy performance enhancing substances

for use during the upcoming off-season.

Chad Allen, who has admitted using steroids, was a teammate of Miadich. He

said that Miadich’s size, muscle definition, and tightness of skin

indicated to him that Miadich

was using steroids. He recalled Miadich’s probl

ems with “‘roid rage,” describing how Miadich

sometimes smashed objects in the clubhouse after a bad game.

Miadich’s name, with an address and te

lephone number, is listed in the address

book seized from Radomski’s re

sidence by federal agents.

In order to provide Miadich with informa

tion about these allegations and to give

him an opportunity to respond, I asked him to meet with me. He did not respond to my request.

Fernando Vina

Fernando Vina played several positions w

ith five teams in Major League Baseball

from 1993 until 2004, the Seattle Mariners, New Yo

rk Mets, Milwaukee Brewers, St. Louis

Cardinals, and Detroit Tigers. He played

in the 1998 All-Star game

and won two National

League Golden Glove Awards as a second baseman. During the 2007 baseball season, he was a

commentator for ESPN’s

Baseball Tonight

While Radomski was working for the Mets

as a clubhouse attendant in 1993, he

met Vina, who was then in the Mets minor league

system. Radomski stated that he sold anabolic

steroids or human growth hormone to Vina si

x to eight times during 2000 to 2005. Radomski

produced three checks from Vina. Radomski stat

ed that these checks reflected a March 2003

purchase by Vina of human growth hormone, an

April 2003 purchase by Vina of steroids, most

214

likely Winstrol, and a July 2005 purchase by Vina of Deca-Durabolin.

421

All of the checks are

included in the Appendix. One is shown below.

Radomski recalled details of these steroids

sales, including a

discussion with Vina

about how quickly Winstrol will “clear the body” a

nd another discussion in

which Vina said that

the July 2005 purchase of Deca-Durabolin was inte

nded to assist Vina in preparing for spring

training in 2006. Vina’s name, with an addre

ss and two telephone numbe

rs, is listed in the

address book seized from Radomski

’s residence by federal agents.

In order to provide Vina with informati

on about these allegations and to give him

an opportunity to respond, I asked him to meet

with me. He did not respond to my request.

Kevin Brown

Kevin Brown pitched for six teams in Ma

jor League Baseball between 1986 and

2005, the Texas Rangers (8 seasons), Baltimore Orio

les (1 season), Florida Marlins (2 seasons),

San Diego Padres (1 season), Los Angeles D

odgers (5 seasons), and New York Yankees

421

Although Vina had retired from baseball in

2004, Radomski said that in 2005 he was

contemplating a return.

215

(2 seasons). He played in six All-Star games.

He was the San Diego Padr

es Player of the Year

in 1998 and the Los Angeles Dodgers

Player of the Year in 1999.

Radomski said that Paul Lo Duca re

ferred Brown to him in 2000 or 2001 when

Brown and Lo Duca were teammates with the Dodgers. Brown called Radomski and they spoke

about human growth hormone for one or two ho

urs. Radomski said that Brown was “very

knowledgeable” about human growth hormone. Brown was placed on the disabled list in June

2001 with a neck injury and in Ju

ly 2001 with an elbow injury. Af

ter Brown got hurt, he called

Radomski again and asked for human growth hormone.

Radomski said that he sent human gr

owth hormone to Brown by overnight mail

and called Brown several times to make sure he

had received it. Br

own finally returned

Radomski’s call and confirmed he had received

it. Soon thereafter, Radomski returned home

one day to find an express delivery package fr

om Brown on his doorstep, wet from the rain.

When he opened it, he found that it contained

$8,000 in cash. Radomski called Brown and told

him not to check the signature waiver box on the overnight delivery package when he was

sending cash, because the envelope was left on Ra

domski’s doorstep for several hours and could

have been taken.

According to Radomski, over the next tw

o or three years he sold performance

enhancing substances to Brown five or six times. Radomski

recalled that Brown usually

purchased multiple kits of human growth hormone. Brown sent cash, sometimes as much as

$10,000, to Radomski by overnight mail, and he used

his agent’s business a

ddress as the return

address. At one point, Brown as

ked Radomski for Deca-Durabolin

to help with an ailing elbow,

and Radomski sold it to him. (In 2002, Brown

was placed on the disabled

list with an elbow

injury.)

216

Brown’s name, with an address and several telephone numbers

, is listed in the

address book seized from Radomski’s residence

by federal agents. Agents also seized an

Express Mail receipt dated June 7, 2004 addressed

to “Kevin Brown, [address].” A copy of that

receipt is included in the Appendix and is shown below.

In the notes of the October 2003 meeti

ngs among Dodgers officials, it was

reportedly said of Brown:

Kevin Brown – getting to the age

of nagging injuries . . . Question

what kind of medication he take

s . . . Effectiveness goes down

covering 1st base or running base

s. Common in soccer players and

are more susceptible if you take meds to increase your muscles –

doesn’t increase the attachments.

Is he open to adjusting how he

takes care of himself? He knows he now needs to do stuff before

217

coming to spring training to be

ready. Steroids speculated by

GM.

422

Less than two months later, the D

odgers traded Brown to the Yankees.

423

In order to provide Brown with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Eric Gagné

Eric Gagné is a relief pitcher who began

his career in Major

League Baseball with

the Los Angeles Dodgers in 1999 and played with the Dodgers through 2006. In 2007, he played

for the Texas Rangers and the Boston Red Sox, a

nd in December he signed with the Milwaukee

Brewers. In 2002 and 2003, Gagné was the Los A

ngeles Dodgers Player of the Year. In 2003,

he saved 55 games and won the Cy Young Award

and the National League Rolaids Relief

Pitcher of the Year. In 2004, he saved 45 ga

mes and again won the National League Rolaids

Relief Pitcher of the Year. He has played in three All-Star games.

Paul Lo Duca and Gagné were teammates with the Dodgers from 1999 to 2004.

Although he is not sure when, Radomski recalle

d that Lo Duca called Radomski and told

Radomski that Gagné was with him and wanted to buy human growth hormone. Gagné then

came onto the phone and asked Radomski a question a

bout how to get air out

of a syringe. This

is the only time Radomski spoke to

Gagné. Radomski said that Lo

Duca thereafter placed orders

on Gagné’s behalf.

Radomski said that he mailed two shipments to Gagné, each consisting of two kits

of human growth hormone. One was sent to Ga

gné’s home in Florida; the other was sent to

Dodger Stadium. Federal agents seized from

Radomski’s home a copy of an Express Mail

422

See supra

at 131 (discussing meetings and notes).

423

See

Tyler Kepner,

Sheffield Thinks Twice; No Hesitation for Brown

, N.Y. Times,

Dec. 15, 2003, at Sports 1.

218

receipt showing a shipment to “Dodger Stadiu

m, c/o Eric Gagne – L.A. Dodgers Home Club,

1000 Elysian Park Ave., Los Angeles, California 90012” dated August 9, 2004. A copy of this

receipt is included in the Appendix and is shown be

low. Radomski said that this was for one of

the shipments of human growth hormone to Gagné.

Lo Duca paid Radomski for one of the sh

ipments to Gagné by cashier’s check in

the amount of $3,200. The Lo Duca checks supplied by Radomski reflect two payments of

$3,200 (each the cost of two kits) within a six-week time frame during the summer of 2004.

Radomski said that, on one other occasion,

Gagné sent Radomski $3,200 in cash by FedEx.

219

According to notes of the

October 2003 meetings of D

odgers officials, it was

reportedly said of Gagné that: “he probably

takes medication and tendons and ligaments don’t

build up just the muscle.”

424

When the Boston Red Sox were consideri

ng acquiring Gagné, a Red Sox official

made specific inquiries about Ga

gné’s possible use of steroids. In a November 1, 2006 email to

a Red Sox scout, general manager Theo Epstei

n asked, “Have you done any digging on Gagne?

I know the Dodgers think he was a steroi

d guy. Maybe so. What do you hear on his

medical?”

425

The scout, Mark Delpiano, responded,

Some digging on Gagne and steroids

IS the issue. Has had a

checkered medical past throughout ca

reer including minor leagues.

Lacks the poise and commitment

to stay healthy, maintain body

and re invent self. What made

him a tenacious closer was the max

effort plus stuff . . . Mentality without the plus weapons and

without steroid help probably cr

eates a large risk in bounce back

durability and ability to throw av

erage while allowing the change-

up to play as it once did . . . Personally, durability (or lack of) will

follow Gagne . . .

426

In order to provide Gagné with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Mike Bell

Mike Bell played as an infielder for

several minor league teams from 1993 to

2005. In 2000, Bell played in nineteen games for

the Cincinnati Reds. In 2007, Bell was named

manager of the Yakima Bears, a minor leag

ue affiliate of the Arizona Diamondbacks.

Radomski said that he sold Bell a kit of

human growth hormone but could not be

certain of the date of the sale. As a club

employee, Bell was require

d by the Commissioner to

424

See supra

at 131 (discussing meetings and notes).

425

Email from Theo Epstein to Marc DelPiano, dated Nov. 1, 2006.

426

Email from Marc DelPiano to Theo Epstein, dated Nov. 1, 2006.

220

meet with us. In that interview, Bell said that he purchased and received one shipment of human

growth hormone from Radomski while in the

minor leagues during the 2003 off-season. Bell

never met Radomski but recalled hearing his name

during the two seasons

(1998 and 1999) that

he spent in the Mets’ minor league system. When asked how he came to know that Radomski

could obtain performance enhanci

ng substances for him, Bell said

that “a lot of people knew him

and knew what he did.”

Bell said he did not recall who gave him

Radomski’s telephone number, which he

believed he obtained after his time in the Mets organization. Bell telephoned Radomski and told

him that he wanted to obtain human growth hor

mone. Sometime after th

at first telephone call,

Bell received a package in the mail from Radomski

that contained what he presumed was human

growth hormone. He then called Radomski again a

nd asked how to use it. Over a two-to-three

month period, Bell used most, but not all, of the human growth hormone sent to him by

Radomski. He does not recall how

he paid Radomski for the shipment. Bell had no further

contact with Radomski.

Bell said he purchased human growth

hormone from Radomski only once and

never received any other product, free or purchased,

from Radomski. Bell also said that he never

told anyone, other than his wife

, that he obtained human growth

hormone from Radomski and

never gave anyone else Radomski’s

contact information. Bell did not recall discussing any other

baseball player with Radomski.

Other than this one instance,

Bell said he has never used any

performance enhancing substance.

Bell’s name, with an address and telephone

number, is listed in the address book

seized by federal agents fr

om Radomski’s residence.

221

Matt Herges

Matt Herges is a pitcher

who has played for seven teams in Major League

Baseball since 1999, the Los Angeles Dodgers,

Montreal Expos, San Francisco Giants,

San Diego Padres, Arizona Diamondbacks, Fl

orida Marlins, and Colorado Rockies.

Herges was a teammate of catcher Paul

Lo Duca with the Dodgers from 1999 to

2001. According to Radomski, Herges called Rado

mski and said that Lo Duca had given him

Radomski’s telephone number. Rado

mski said that he made two or

three sales of human growth

hormone to Herges. His first contact with Herges might have been as early as 2004 and his last

sale to him was in late 2005, not long before

federal agents executed the search warrant on

Radomski’s residence. Radomski

never met Herges in person.

Shortly after the federal search warr

ant was executed on Radomski’s home,

Herges again called Radomski and asked if

he could sell him human growth hormone.

Radomski, who by then was cooperating with fede

ral law enforcement au

thorities, informed

Herges that he “was dry right

now” and could not supply Herges with any growth hormone at

that time. Herges did not contact him again.

Radomski produced one check from He

rges dated November 1, 2005 in the

amount of $3,240. The check is included in the A

ppendix and is shown below. Radomski said

that this check was in payment for two kits

of human growth hormone, plus $40 for shipping.

A piece of an undated shipping receipt to Herges

and a copy of an Express Mail receipt dated

November 2, 2005 sent to the same address were

seized from Radomski’s residence by federal

agents. Both are included in the Appendix.

222

In order to provide Herges with informa

tion about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Gary Bennett, Jr.

Gary Bennett, Jr. is a catcher who sin

ce 1995 has played with seven teams in

Major League Baseball, the Philadelphia Phillies,

New York Mets, Colorado Rockies, San Diego

Padres, Milwaukee Brewers, Washington Na

tionals, and St. Louis Cardinals.

Radomski said that Denny Neagle referred Bennett to him. Neagle and Bennett

were teammates in 2001 and 2002 with the Co

lorado Rockies. Radomski recalled one

transaction with Bennett in July 2003 for

two kits of human growth hormone. Radomski

produced one check from Bennett payable to

Kirk Radomski in the amount of $3,200 dated

July 13, 2003. A copy is included in

the Appendix and is shown below.

223

Bennett’s name, with an address and a te

lephone number, is listed in the address

book seized from Radomski’s

residence by federal agents.

In order to provide Bennett with information about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Jim Parque

Jim Parque pitched in Major League

Baseball for the Chicago White Sox and

Tampa Bay Devil Rays from 1998 through 2003.

In 2004, he played for Arizona’s class AAA

affiliate. He announced his retire

ment at the end of that season

because of shoulder injuries, but

in 2007 he played for Seat

tle’s class AAA affiliate.

Radomski did not recall who referred Parque

to him but said that he made two

sales of human growth hormone to him. Radoms

ki said that during the 2003 off-season Parque

sent Radomski a bottle of Winstrol to “check out

.” Radomski determined it was “no good” and

discarded it.

Radomski produced two checks from Par

que. The first was dated October 18,

2003 in the amount of $3,200; the second was

dated December 6, 2003 in the amount of $1,600.

Both are included in the Appendix. One is shown below.

224

Parque’s name, with an address and tw

o telephone numbers, is listed in the

address book seized from Radomski

’s residence by federal agents.

In order to provide Parque with informa

tion about these allegations and to give

him an opportunity to respond, I asked him

to meet with me. He did not respond.

Brendan Donnelly

Brendan Donnelly is a pitcher who has played with two teams in Major League

Baseball since 2002, the Los Angeles Angels and Bo

ston Red Sox. He was selected to play in

the All-Star game in 2003.

Radomski said that Donnelly was referre

d to him by Adam Riggs. Both Riggs

and Donnelly played for the Angels in 2003 and

2004. Radomski recalled that Donnelly called

him in 2004 looking for Anavar, an

anabolic steroid. Radomski ma

de one sale to Donnelly of

Deca-Durabolin for which Donnelly paid $250 to $300.

In considering whether to trade fo

r Donnelly in 2007, Red Sox baseball

operations personnel internally discussed conc

erns that Donnelly was using performance

enhancing substances. In an email to vice president of player personnel Ben Charington dated

December 13, 2006, Zack Scott of the Red Sox base

ball operations staff wrote of Donnelly: “He

was a juice guy but his velocity ha

sn’t changed a lot over the years

. . . If he was a juice guy, he

could be a breakdown candidate.”

427

Kyle Evans of the baseball operations staff agreed with

these concerns, responding in an

email that “I haven’t heard ma

ny good things about him, w[ith]

significant steroid rumors.”

428

427

Email from Zack Scott to Ben Cherington, dated Dec. 13, 2006.

428

Email from Kyle Evans to Jed Hoyer,

Zack Scott, Theo Epstein, Ben Cherington,

Craig Shipley, Brian O’Halloran, and Allard Baird, dated Dec. 13, 2006.

225

In order to provide Donnelly with inform

ation about these allegations and to give

him an opportunity to respond, I asked hi

m to meet with me; he declined.

Chad Allen

Chad Allen is an outfielder who played w

ith four teams in Major League Baseball

between 1999 and 2005, the Minnesota Twins, Clev

eland Indians, Florida Marlins, and Texas

Rangers. Since then, he has played in Japan.

Radomski said that Chris Donnels referred Allen to him.

429

Radomski believed

he made between three and five sales to A

llen involving Winstrol, testosterone, and Deca-

Durabolin. According to Radomski, Allen could not afford human growth hormone.

Allen met with my investigators after

his return from Japan, where he played

baseball this past season. Alle

n has been cooperating with federa

l authorities in connection with

their investigations of illegal distribution of pe

rformance enhancing substances. As part of his

cooperation and at the request of

federal law enforcement author

ities, Allen agreed to be

interviewed by members of my investigative staff.

Federal law enforcement agents were present

at his interview with us and advised him that a

ny false statements made in their presence during

the interview could be considered

a violation of federal law.

Allen admitted to having purchased anabo

lic steroids from Radomski but he said

he did so only during the 2003 off-season. In 2001, Allen tore the anterior

cruciate ligament in

his right knee while playing for

the Minnesota Twins. After th

e injury and subsequent knee

surgery, Allen’s right leg was weakened and atro

phied. In the summer of 2003, Allen discussed

this problem with Chris Donnels, who was a te

ammate at Albuquerque.

Donnels described the

429

Donnels denied that he intr

oduced Allen to Radomski.

226

benefits of using Winstrol and mentioned Kirk Radomski. Allen called Radomski at a phone

number provided by Donnels.

When Allen called Radomski and describe

d his knee problem, Radomski told him

that Winstrol was the best drug for him to take

because it would strengthen his joints and build

up muscles and ligaments in his le

g. Allen recalled obtaining the

Winstrol in October after the

season was over; he was adamant that he never

took steroids during the season. According to

Allen, the 2003 off-season was the only occasion when

he used steroids. Allen explained that he

did not want his teammates to know that he used

steroids, and he did not

want to use anything

during the season because he “did not want to

be on a different playing field from his

teammates.” He also was concerned about testing positive.

Radomski mailed a one or two-month supply

of Winstrol to Allen at his home in

Texas. Allen paid Radomski approximately

$400 by check. Allen confirmed that the address

and phone number for him in Radomski’s addres

s book were correct. Radomski warned him to

stop using the steroids by January 15 to avoid

testing positive, and Allen recalled stopping his

use well before that date. Allen said that the

Winstrol, together with diligent exercise, had a

noticeable effect on him. However, the effects of

the Winstrol did not last

long. He began to see

a subtle decline in his leg strength about

two months after he stopped using it.

Radomski produced one check from Alle

n payable to “Kirk Radinski” in the

amount of $140, dated February 1, 2004. A copy is included in the Appendix and is shown

227

below. Radomski said that this check was payment for ten vials of steroids.

According to Allen, the $140 check was not

for steroids but instead was for an

anti-estrogen agent to counteract

some of the negative side eff

ects he experienced from using

Winstrol. Allen said he experienced a surge in female hormones that resulted in the development

of cysts in his chest. Radomski sent him a

drug called Femara to counteract that effect.

Jeff Williams

Jeff Williams is a pitcher who played porti

ons of four major league seasons with

the Los Angeles Dodgers, from 1999 to 2002. Af

ter leaving the Dodgers, Williams went to

Japan to continue his playing career.

Radomski said that he sold the steroids Anavar and Dianabol to Williams.

Radomski produced one check from Williams dated December 10, 2004 in the amount of

228

$1,820. A copy of the check is included in the Appendix and is shown below.

Williams’s name, with an address and te

lephone number, is listed in the address

book seized from Radomski’s

residence by federal agents.

In order to provide Williams with information about these allegations and to give

him an opportunity to respond, I asked him to meet

with me. He did not respond to my request.

Howie Clark

Howie Clark has played several positions

for two teams in Major League Baseball

since 2002, the Baltimore Orioles and Toronto Blue Jays.

According to Radomski, Clark was introdu

ced to him by Larry Bigbie. Radomski

said that Clark called him several times befo

re buying anything. Radomski recalled that Clark

had done his own research about human growth ho

rmone and had decided to use it. Radomski

said that he made four or five

sales of human growth hormone to

Clark and that Clark paid him

by money order or check.

Radomski produced two money orders re

ceived from Clark. They are dated

April 7 and May 19, 2005, and totaled $1,200. One

is shown below; both are shown in the

Appendix. Radomski stated that these two m

oney orders constituted payment for one kit of

human growth hormone.

229

In order to provide Clark with informati

on about these allegations and to give him

an opportunity to respond, I asked him to meet with me; he declined.

Nook Logan is an outfielder who has play

ed in Major League Baseball since 2004

for the Detroit Tigers and Washington Nationals.

Rondell White, a Tigers teammate, referred Logan to Radomski. Radomski stated

that he sold Logan one kit of human growth

hormone just before federal agents searched

Radomski’s house in December 2005. Radomski

mailed the package to Logan, who paid by

money order. Radomski recalled having between

six and eight conversations with Logan about

the use of performance enhancing

substances. In the course of

one of these conversations, Logan

confirmed that he had received the shipment fr

om Radomski. Radomski still had Logan’s phone

number in his cell phone directory at the time of

his final interview w

ith me and provided me

with the phone number.

In order to give Logan the opportunity to

respond to these alle

gations, I asked him

to meet with me; he declined.

230

C. Additional Information

Concerning Players’ Use

of Performance Enhancing Substances

1. Information Provided by a Former Minor League

Strength and Conditioning Coach

From 1999 to 2000, Todd Seyler served as a minor league strength and

conditioning coach for the Albuquerque Dukes, wh

ich was then the class AAA affiliate of the

Los Angeles Dodgers. Around May 1999, Seyler bega

n talking with five of the Dukes players

about using performance enhancing substances.

The players were Matt Herges, Paul

Lo Duca, Jeff Williams, Mike Judd, and

Ricky Stone. As already discussed, accordi

ng to Kirk Radomski, Herges, Lo Duca, and

Williams later purchased performance enhancing substa

nces from him. Seyler said that all five

players expected to be called up to

the Dodgers later in the season,

and they all wanted to be in

“peak physical condition” when that happened.

430

Seyler gave Herges a “few hundred dollars”

in cash to purchase steroids for him.

Seyler understood that the other pl

ayers were giving Herges money t

oo and that either Herges or

Lo Duca would buy steroids for the group from a sour

ce in Florida. Seyler

did not tell anyone in

Dodgers management that he or any of

these players were purchasing steroids.

Before a game in mid-July 1999, Seyler a

nd the players met to inject themselves

with the steroids. Seyler and Stone lived in

the same apartment complex, and Judd, Herges,

Lo Duca, and Williams met them at Stone’s apartment with the steroids that had been received

from Florida. Seyler recalls Herges as the

player who carried the box

of steroids into the

apartment.

430

All but Stone were called up late in th

e 1999 season. Stone first played in Major

League Baseball in 2001 and played with the

Cincinnati Reds during a portion of the 2007

season.

231

The five players and Seyler all injected

themselves with the steroids at the

apartment. Seyler witnessed Herges and Willia

ms inject themselves in the buttocks with

syringes containing Deca-Duraboli

n. Seyler also observed Lo Du

ca and Judd inject themselves

with either Deca-Durabolin or Winstrol, alt

hough Seyler could not remember where they

injected themselves or which of the two substan

ces they used. Seyler further observed Stone

inject himself in the thigh with Deca-Duraboli

n. Seyler injected himself in the thigh with

Winstrol. Seyler said he was inexperienced in th

e use of anabolic steroids

and needed Herges to

explain to him how to perform the injections.

These injections in mid-July 1999 were th

e beginning of a six-week cycle. In

conjunction with the cycles, Seyler designed a

nd recommended training programs for the players

to optimize the effect of the ster

oids. Seyler himself

worked out frequently – he took the steroids

in part to improve his physical appearance and in

part to remain close to the players he was

training.

Seyler never observed these players use st

eroids after the first occasion, but he

spoke with them frequently about the subject until all but one of the players were promoted to

the Dodgers later during the 1999 season. Based on hi

s conversations with them, Seyler believed

that all of the players continued

to use steroids while training and that they completed their six-

week cycles. They had conversations about st

eroids at the ballpark, in the clubhouse, during

practices, and before and after games. Seyler

said that the discussions were “as casual as a

conversation about going to the movies.” Seyler

believed that he became “desensitized” to any

illegality of the use of anabolic

steroids because of the frequency and “nonchalant” nature of

conversations among him and these players about the

use, application and bene

fits of steroids.

232

Our efforts to speak with Herges, Lo Du

ca, and Williams are discussed earlier in

this chapter. In order

to provide Judd and Stone with inform

ation about these allegations and to

give them an opportunity to respond, I asked each

of them to meet with me. They did not

respond to my request.

2. Information Provided by a Former Major League Player

Matt Karchner pitched for two teams in

Major League Baseba

ll between 1995 and

2000, the Chicago Cubs and the Chicago White

Sox. Members of my investigative staff

contacted him as part of our effort to

interview former major league players.

Karchner said that during spring traini

ng in 1999, he observed two of his Chicago

Cubs teammates inject themselves with steroids in an apartment that Karchner was sharing with

them. Karchner declined to identify the players.

He said that one of the players brought the

steroids to the apartment but was afraid of n

eedles and therefore asked the second player to

administer the shot. The second pl

ayer injected the firs

t player with steroids

in the buttocks and

then injected himself.

Later that season, Karchner was offere

d steroids by certain of his Cubs

teammates. Karchner would not disclose the name

s of players who offered him steroids, but he

said that the conversations he had with them invol

ved the general cost of steroids and discussions

of “stacking” to build lean muscle necessary for

pitchers. Karchner did not report either of these

incidents to anyone at the time.

3. Daniel Naulty

Daniel Naulty pitched for two teams in

Major League Baseball from 1996 to

1999, the Minnesota Twins and the New York Yankees.

We contacted Naulty as part of our effort

to interview former players. During his

telephone interview, Naulty admitted to using st

eroids, on and off, for seven years, and human

233

growth hormone for one year. Naulty used perf

ormance enhancing substances while playing in

both Major League Baseball a

nd in the minor leagues.

Naulty started using steroids as a mi

nor league player, before the 1993 season,

because he needed to put on weight. Naulty lear

ned about steroids from other players. After

starting his steroid regimen Nau

lty reported to spring training

for the 1993 season approximately

20 pounds heavier and throwing five miles per hour ha

rder than he did the year before. Naulty

said that he went “from an A-ba

ll pitcher to a major league pros

pect in a matter of two years.”

Naulty purchased steroids and human growth hormone through illegal dealers.

Naulty was aware of at least

four gyms in Orange County, California, where he could obtain

steroids.

Naulty believes that his use of steroids

made him injury prone. He suffered a

number of injuries, including a to

rn triceps muscle, a torn groin muscle and numbness in an arm

from the loss of circulation, that

he attributes to his use of ster

oids. Naulty said that he had

stopped using steroids by the time he played fo

r the Yankees in 1999. Naulty lost muscle mass

and arm strength once he stopped using steroids.

Naulty repeatedly expressed remorse for

using steroids during

the course of his

interview. He told us that “if I could give

back a little bit of some

thing good then I would like

to.”

234

IX. The Threat Posed By Internet Sales of

Steroids and Huma

n Growth Hormone

As serious as Kirk Radomski’s illegal distribution network was before it was shut

down by federal agents, the threat to baseball posed by illegal sales of performance enhancing

substances over the internet is greater. In a se

ries of press reports this year, a number of current

and former major league players have been imp

licated in the purchase over the internet of

steroids or human growth hormone from illegal purveyors of performance enhancing substances.

Undoubtedly, others not yet known also have used

the internet to obtain

illegal performance

enhancing substances.

A. Two Methods for Illegal Internet Distribution

of Performance Enhancing Substances

As the result of recent investigations

by federal and state law enforcement

agencies, two distinct business models for ille

gal internet sales of

performance enhancing

substances have been exposed. The first intern

et distribution method diffe

rs only slightly from

the traditional model for drug dealing, using the in

ternet instead of gym locker rooms or street

corners as a semi-anonymous mark

etplace for drug transactions. The second pattern is more

elaborate, involving “rejuvenation

centers” that troll the internet for customers, corrupt

physicians who write prescriptions for patients

they have not seen, and compounding pharmacies

that fill these dubious prescriptions and deliver

performance enhancing substances to end users

by mail.

1. Drug Dealers’ Use of

the Internet to Sell

Illegal Performance Enhancing Substances

On September 24, 2007, the Drug Enforcement Administration announced the

“largest steroid enforcement action in U.S. hi

story,” called Operation

Raw Deal, in which law

enforcement officials from several different fe

deral agencies had executed 143 search warrants,

235

made 124 arrests and seized 56 illegal steroid

labs around the United Stat

es. The operation took

place in conjunction with enforcement operations

in a number of other countries, including

China.

431

Operation Raw Deal followed a success

ful DEA interdiction of illegal steroid

production in Mexico in 2005, calle

d Operation Gear Grinder, in which similar evidence was

uncovered about how illegal steroids

are sold over the internet.

432

Massive quantities of steroids were sei

zed in the Operation Raw Deal raids,

including “11.4 million steroid dosage units” a

nd “242 kilograms of raw steroid powder of

Chinese origin.” Agents also seized 27 pill pres

ses from the labs. Agents involved in the raids

reported that many of the steroid labs discove

red in the operation were “extremely unsanitary”

with “huge amounts of raw materials being mixe

d in bathtubs and bathroom sinks” in some

cases.

433

Indictments in several of the criminal

cases arising from these investigations

describe the basic sales and di

stribution methods used by the st

eroid dealers who were caught by

the operation. A number of these dealers advertise

on social networking sites;

others are listed as

“approved sources” for illegal st

eroids on bodybuilding websites where users discuss how to get

illegal steroids and human growth hormone, how to

self-administer those substances, and how to

avoid detection by law enforcement.

434

Some websites also explai

n how to convert raw steroid

431

Press Release, Drug Enforcement Admini

stration, DEA Announces Largest Steroid

Enforcement Action in U.S.

History (Sept. 24, 2007);

see also

Amy Shipley,

Agents Arrest 124

in Drug Raids; With Eye on Hosting Olympics, China Cooperates With DEA

, Wash. Post,

Sept. 24, 2007, at E1.

432

See

Press Release, Drug Enforcement Admi

nistration, DEA Leads Largest Steroids

Bust in History (Dec. 15, 2005).

433

See

Press Release, Drug Enforcement

Administration, DEA Announces Largest

Steroid Enforcement Action in U.S. History (Sept. 24, 2007).

434

See, e.g.,

Indictment,

United States v. Smith, et al.

, No. 07 CR 2580 (S.D. Cal.), ¶¶ 4-

5, 15 (d/b/a US Pharmaceuticals); Indictment,

United States v. Russo, et al.

, No. 07 CR 2582

236

powder into pills or injectable liquid and

sell conversion kits for doing so at home.

435

Transactions were arranged through the dealer

s’ encrypted email ad

dresses to avoid law

enforcement scrutiny.

436

Buyers paid for the substances by

wire transfer or by mailing cash to

post office boxes.

437

The illegal drugs were then sent

to the buyers through the mail or using

overnight delivery services.

438

Transactions in which dealers obtained the raw st

eroid powder from overseas

suppliers also frequently were

arranged over the internet.

439

The drug dealers caught in

Operation Raw Deal obtained raw steroid powder

primarily from companies based in China;

(S.D. Cal.), ¶¶ 4-5, 14 (d/b/a American Ph

armaceuticals Incorporated); Indictment,

United States

v. Hullander

, No. 07 CR 2577 (S.D. Cal.), ¶¶ 4-5, 8 (d/b/a Tweak Labs); Indictment,

United States v. Lupico

, No. 07 CR 2579 (S.D. Cal.), ¶¶ 4-5, 16 (d/b/a AKA Pharmaceuticals).

435

See

Press Release, Drug Enforcement

Administration, DEA Announces Largest

Steroid Enforcement Action in U.S.

History (Sept. 24, 2007), at 2;

see also

Amy Shipley,

Agents

Arrest 124 in Drug Raids; With Eye on Hos

ting Olympics, China Cooperates With DEA

, Wash.

Post, Sept. 24, 2007, at E1.

436

See

Indictment,

United States v. Russo, et al.

, No. 07 CR 2582 (S.D. Cal.), ¶¶ 10-11,

16 (d/b/a American Pharmaceuticals Incorporated); Indictment,

United States v. Lupico

, No. 07

CR 2579 (S.D. Cal.), ¶ 10 (d/b/a AKA Pharmaceuticals).

437

See

Indictment,

United States v. Smith, et al.

, No. 07 CR 2580 (S.D. Cal.), ¶ 17 (d/b/a

US Pharmaceuticals); Indictment,

United States v. Russo, et al.

, No. 07 CR 2582 (S.D. Cal.),

¶ 19 (d/b/a American Pharmaceutic

als Incorporated); Indictment,

United States v. Hullander

, No.

07 CR 2577 (S.D. Cal.), ¶ 10 (d/b/a Tweak Labs); Indictment,

United States v. Lupico

, No. 07

CR 2579 (S.D. Cal.), ¶ 18 (d/b/a AKA Pharmaceuticals); Indictment,

United States v. Jin, et al.

No. 07 CR 121-01ML (D.R.I.), ¶¶ 19, 28-29, 32-34.

438

See

Indictment,

United States v. Russo, et al.

, No. 07 CR 2582 (S.D. Cal.), ¶¶ 17-18

(d/b/a American Pharmaceuticals Incorporated); Indictment,

United States v. Jin, et al.

, No. 07

CR 121-01ML (D.R.I.), ¶¶ 26, 30, 35.

439

See

Indictment,

United States v. Smith, et al.

, No. 07 CR 2580 (S.D. Cal.), ¶¶ 11-12

(d/b/a US Pharmaceuticals); Indictment,

United States v. Hullander

, No. 07 CR 2577 (S.D. Cal.),

¶¶ 4-7 (d/b/a Tweak Labs); Indictment,

United States v. Lupico

, No. 07 CR 2579 (S.D. Cal.),

¶¶ 12-15 (d/b/a AKA Pharmaceuticals); Indictment,

United States v. Jin, et al.

, No. 07 CR 121-

01ML (D.R.I.), ¶¶ 17-18.

See also

David Barboza and Duff Wilson,

Complaint Offers Window

on Chinese Drug Ring

, N.Y. Times, Sept. 28, 2007, at C1.

237

37 Chinese companies were implicated,

many of them chemical wholesalers.

440

Illicit

production of steroids had shifted to China af

ter the December 2005 raids in Operation Gear

Grinder, as a result of which the DEA successful

ly shut down eight Mexican veterinary steroid

producers that previously had been responsible fo

r up to 80% of the illi

cit internet sales of

steroids in the United States.

441

Once they obtained the raw steroids in

powder form, the dealers converted it into

steroid pills or injectable liquid steroids in their home laborator

ies. As mentioned, many of the

steroid laboratories raided in Operation Raw

Deal were extremely unsanitary. The DEA found

that mislabeling was also common, “both intenti

onal and unintentional. Products [we]re often

misrepresented, and their safety [was] not at all guaranteed.”

442

Operation Raw Deal also resulted in th

e indictment of a number of individuals

involved in illicit internet sales of human gr

owth hormone using a similar business model.

Human growth hormone was advertised for sale

on websites, and potential customers contacted

the dealers, using encrypted email addresses that

were accessible on those

sites. Human growth

hormone was purchased by the dealers from a

Chinese pharmaceutical company, GeneScience

Pharmaceutical Company, Ltd., which shipped vials of

its Jintropin brand of HGH from China to

post office boxes maintained by the

dealers in the United States.

443

Dealers then sent the

440

David Barboza and Duff Wilson,

Complaint Offers Window on Chinese Drug Ring

N.Y. Times, Sept. 28, 2007, at C1;

see also

Maureen Fan and Amy Shipley,

Pressure Builds on

China Over Steroids

, Wash. Post, Dec, 5, 2007, at A1.

441

Amy Shipley,

Agents Arrest 124 in Drug Raids; With Eye on Hosting Olympics,

China Cooperates With DEA

, Wash. Post, Sept. 24, 2007, at E1;

see

Press Release, Drug

Enforcement Administration, DEA Leads Larges

t Steroids Bust in History (Dec. 15, 2005).

442

Press Release, Drug Enforcement Admini

stration, DEA Announces Largest Steroid

Enforcement Action in U.S.

History (Sept. 24, 2007).

443

See

Indictment,

United States v. Jin, et al.

, No. 07 CR 121-01ML (D.R.I.);

see also

David Barboza and Duff Wilson,

Complaint Offers Window on Chinese Drug Ring

, N.Y. Times,

238

products to their customers. Th

ere was no pretense of obtaining

physicians’ prescriptions for the

human growth hormone – the substance was simp

ly smuggled into the United States and sold

illegally.

2. Internet Trafficking in Perf

ormance Enhancing Substances

by Rejuvenation Centers and Co

mpounding Pharmacies

In February 2007, a government raid on

Signature Compounding Pharmacy in

Orlando, Florida shed light on another, more complex method of selling performance enhancing

substances illegally over the inte

rnet. It involves so-called “r

ejuvenation centers,” which market

steroids or human growth hormone – or, in some

instances, merely a healthier lifestyle – over the

internet. When approached by a customer, th

e rejuvenation centers arrange for a corrupt

physician to issue a prescription for the substance

the customer wants to purchase, often without

ever seeing their new “patient” and without admi

nistering any medical tests. The bad faith

prescriptions are then filled

by a compounding pharmacy (which

sometimes manufactures the

steroids or human growth hormone in its ow

n laboratory) and sent to the user by mail.

444

The raid on Signature Pharmacy was c

onducted by a task force of federal and

state agencies. It grew out of a 2004 invest

igation by the New York Bureau of Narcotic

Enforcement of a physician in upstate New York

who had been illegally prescribing and selling

drugs, including steroids, over th

e internet. That initial inve

stigation led state and federal

Sept. 28, 2007, at C1. An article that appear

ed after the Operati

on Raw Deal announcement

reported that GeneScience claimed to be China’

s most profitable pharmaceutical company and to

control nearly 70% of China’s market for human growth hormone.

See

id.

444

The Federal Food, Drug and Cosmetics Ac

t prohibits knowingly distributing or

possessing with intent to distribut

e human growth hormone for any

use in humans other than the

treatment of disease or anothe

r recognized medical condition th

at has been recognized by the

Secretary of Health and Human Services.

21 U.S.C. § 333(e) (2006)

. The FDA has only

approved human growth hormone

for limited uses, and it has not been approved for use for any

anti-aging, cosmetic, or athletic performance purpose.

See

Food and Drug Administration,

Import Alert No. 66-71, Detention Without Physic

al Examination of Human Growth Hormone,

also known as Somatropin

(Jan. 23, 2007).

239

investigators to a compounding pharmacy in

Mobile, Alabama called Applied Pharmacy

Services that had been the New York physician’

s source for some of his illegal products.

A December 2006 raid on Applied led,

in turn, to Signature Pharmacy.

445

In addition to

Signature Pharmacy, the multi-agency task force executed search warrants on several other

pharmacies, anti-aging clinics, a

nd businesses in Florida and in Alabama, New York, and Texas.

According to investigators, Signature Pharmacy sold more than $40 million of

drugs over the internet in 2006.

446

Mark Haskins, the lead investigator for the New York Bureau

of Narcotic Enforcement, described to S

ports Illustrated how

these operations work:

Basically you have an antiaging clinic with an Internet presence.

[Clinic operators] put the product on

the Internet. The customer

finds them online, fills out a brief questionnaire and requests

steroids, hormone therapy, whatever. Someone from the clinic

contacts the customer and then develops a prescription for the

steroid treatment or hormone treatme

nt. Then [the clinic] sends or

e-mails the prescription to a doctor,

who is often not even in the

same state. He’ll sign it [because] he’s being paid by the clinic,

usually $20 to $50 for every signatu

re. The signed prescriptions

get faxed to the compounding pharmacies, which know from the

very beginning that there is no

doctor-patient relationship. The

pharmacy then sends the product to the customer.

447

Other compounding pharmacies also have b

een raided by the task force. In

separate raids of Lowen’s Pharmacy in Brooklyn,

New York that occurred in May and October

445

See

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid

Sting

, Sports Illustrated, Mar. 12, 2007, at 62.

446

See

Brendan J. Lyons,

A Web of Easy Steroids; Flori

da Raid Highlights a Lucrative

Business

, Albany Times Union, Feb. 28, 2007, at A1.

447

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62.

240

2007, authorities seized over 90 grams of raw

human growth hormone, worth over $7.2 million,

as well as significant quantities

of raw steroid powder that had been imported from China.

448

The seizure of large amounts of raw st

eroids and human growth hormone from

these compounding pharmacies suggests that the pharm

acies themselves formulated a significant

portion of the performance enha

ncing substances they sold

(as opposed to reselling FDA-

approved substances purchased from mainstre

am pharmaceutical companies). Both Lowen’s

and Signature owned lypholyzers, vacuum freeze drye

rs that permit a single gram of raw human

growth hormone to be converted

into thousands of doses

of human growth hormone for resale to

consumers.

449

A number of physicians have been indicted

as a result of the investigation. Ana

Maria Santi may be the most egregious example

of the abuses uncovered by the investigation.

Santi is a former physician whose license wa

s suspended by New York State in 1999. The

suspension did not stop her from

writing prescriptions for pay; sh

e merely did so by forging the

signature and using the DEA registration numbe

r of another physician, Dr. Abdul Almarashi,

who was retired and living in a nursi

ng home in California at the time.

450

Between January 2005

and September 2006, Santi issued

prescriptions using Dr. Almara

shi’s name for more than

448

See

Shawn Assael,

Raid in Brooklyn Nets More Than $7 Million in Human Growth

Hormone

, espn.com, Oct. 16, 2007;

Steroids Are Seized in Brooklyn

, nytimes.com, Oct. 17,

2007; Jennifer 8. Lee,

Illegal Steroids Seized

, N.Y. Times, May 10, 2007, at B6.

449

News reports suggest that baseball player

s and other professiona

l athletes typically

purchase generally more expensive brand-name

human growth hormone that is produced and

packaged by mainstream pharmaceuti

cal companies. Some brands are sold in pre-loaded, single

use syringes instead of as lyphol

ized powder that must be mixed

with sterile water by the user.

450

Indictment,

United States v. McGlone and Santi

, No. 07 CR 022 (D.R

.I.); Indictment

of Anna Marie Santi, Albany County C

ourt, New York, File No. 0616252, Jan. 25, 2007;

see

also

Brendan J. Lyons,

Guilty Plea In Steroids Case

, Albany Times Union, Mar. 21, 2007, at A1.

241

$150,000 in substances sold by Oasis Longev

ity and Rejuvenation Institute alone.

451

According

to media reports, prescriptions in Dr. Almarashi’

s name were issued to current major league

players Jay Gibbons and Jerry Hair

ston, Jr., among many other clients.

452

In a prosecution by the Albany County Dist

rict Attorney, Santi pleaded guilty to

criminal diversion of prescripti

on medications and prescriptions.

453

Thereafter, Santi pleaded

guilty to numerous federal counts relating to

her illegal distribution of steroids and human

growth hormone.

454

Other physicians engaged in similar pract

ices. Dr. Victor Mariani, a former

medical school classmate of Santi, also wrote

prescriptions for anabol

ic steroids and human

growth hormone for patients he had never

seen in exchange for $25 per prescription.

455

Dr. Robert Carlson, a 50-year old

physician from Sarasota, Florid

a who is the brother-in-law of

one of the owners of the Palm Beach Rejuvena

tion Center, allegedly

signed 3,100 prescriptions

451

Dan Goodin,

Guilty Plea in Alleged Internet Steroid Ring

, The Register, Mar. 21,

2007; Brendan J. Lyons,

Guilty Plea in Steroids Case; Ex-Physician Admits Writing Fraudulent

Prescriptions for Internet Wellness Center

, Albany Times Union, Mar. 21, 2007, at A1.

452

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62;

Documents: Hairston received HGH; Bogus

prescriptions at heart of

probe; player ‘baffled,’

SI.com, Mar. 2, 2007; Luis Fernando Llosa and

L. Jon Wertheim,

Gibbons received banned drugs; O’s outfielder

latest athlete tied to pipeline

pharmacy

, SI.com, Sept. 9, 2007.

453

Brendan Lyons,

Guilty Plea in Steroids Case

, Albany Times Union, Mar. 21, 2007,

at A1.

454

See

Plea Agreement,

United States v. Santi

, No. 07 CR 0225 (D.R.I. Apr. 27, 2007).

In November 2007, Santi was sentenced to two y

ears in prison, a subsequent year of home

confinement and two years of supervised probati

on, in addition to mone

tary penalties. Dan

Connolly,

Shamed Doctor Gets Two Years in St

eroid Case; ‘Grandmotherly’ Santi Wrote

Thousands of Prescriptions

, Balt. Sun, Nov. 3, 2007, at C1.

455

Indictment,

United States v. Daniel

McGlone and Ana Maria Santi

, No. 07 CR 022

(D.R.I.), at 5-7; Plea Agreement,

United States v. Mariani

, No. 07 CR 0215 (D.R.I.).

242

within a 60-day period; he pleaded guilty in

Albany County to fourth-degree insurance fraud.

456

Dr. Claire Godfrey, an Orlando obste

trician, also pleaded guilty; sh

e said that she was directed

by Signature Pharmacy executives to several Florid

a rejuvenation clinics that faxed prescriptions

for her signature knowing that she

would never examine the customers.

457

Within a six-month

time period, she wrote approximately $1.3 millio

n worth of prescriptions and earned

$200,000.

458

B. Alleged Internet Purchases of

Performance Enhancing Substances

By Players in Major League Baseball

Since the initial news reports of th

e raid by New York and Florida law

enforcement officials on Signature Pharmacy a

nd several rejuvenation ce

nters, the names of

several current and former major league play

ers have appeared in the media as alleged

purchasers of performance enhancing substanc

es through these operations. These include

current major league players Rick Ankiel, Pa

ul Byrd, Jay Gibbons, Troy Glaus, Jose Guillen,

Jerry Hairston, Jr., Gary Matthews, Jr., and Scot

t Schoeneweis, and former players David Bell,

Jose Canseco, Jason Grimsley, Darren Holmes, J

ohn Rocker, Ismael Valdez, Matt Williams, and

Steve Woodard.

The Commissioner’s Office conducted its

own disciplinary interviews of the

players who were still active at

the time of the reports about their alleged possession or use.

Players agreed to the interviews

on the condition that the inform

ation they provided would not be

456

Brendan Lyons,

Guilty Plea in Steroids Case

, Albany Times Union, Mar. 21, 2007;

Indictment of Dr. Robert Ca

rlson, et al., Albany County C

ourt, New York, File No. 0616252,

Jan. 25, 2007;

see also

Brendan J. Lyons,

Pro Athletes on the Stand?

, Albany Times Union, Mar.

6, 2007, at A1.

457

Transcript of Eugene Bolton’s plea pr

oceedings in Albany County Court, dated

Apr. 20, 2007.

458

Brendan J. Lyons,

Steroid Plea Called Turning Point

, Albany Times Union, July 25,

2007, at A1.

243

shared with me by the Commissioner’s Office.

Either directly or in some cases through the

Commissioner’s Office, I requested each of these

16 current and former players to meet with me

to respond to the allegations about them in th

ese reports. Other than Canseco, whose lawyer

provided information in response to

my inquiry, all of the player

s either declined or did not

respond to my invitation.

Rick Ankiel

In a September 7, 2007 article, the New

York Daily News reported that Rick

Ankiel, an outfielder and former pitcher with

the St. Louis Cardinal

s, had ordered eight

shipments of injectable human growth horm

one (including HGH sold under the brand names

Saizen and Genotropin) from Signature Pharm

acy between January and December 2004. Ankiel

reportedly had been issued prescriptions for the drugs that were signed by Dr. William Gogan,

a physician that the Daily News reported was affi

liated with The Health and Rejuvenation Center

of Palm Beach Gardens. Ankiel’s orders were

shipped from Signature Pharmacy to the clinic.

One of the owners of the clinic did not deny th

at the clinic had supplied human growth hormone

to Ankiel although he added that

“under the current policies in e

ffect, no employee at this center

is permitted or authorized to give medication, like

HGH, to bodybuilders or pr

ofessional athletes.

That’s an absolute no-no.”

459

In comments to reporters after the stor

y was published, Ankiel initially admitted

that he had used human growth hormone while

recovering from ligament surgery in 2003, but he

then invoked medical privacy laws to decline furt

her comment. Ankiel said that “[a]ll and any

459

T.J. Quinn, Christian Red, Michael O’Keeffe, and Bill Madden,

Red Faces for

Ankiel

N.Y. Daily News, Sept. 7, 2007, at 90.

244

medications that I have received in my career has (

sic

) always been under a doctor’s care, a

licensed physician.”

460

Neither I nor any member of my inves

tigative staff had any prior knowledge of

any allegation about Ankiel. The Commissione

r’s Office met with Ankiel on September 11,

2007 to discuss the allegations.

461

On December 6, 2007, the Commissioner’s Office announced

that there was insufficient evidence of a violation of the joint program in effect at the time of the

conduct in question to warrant discipline of Ankiel.

David Bell

In a March 6, 2007 article, Sports Illust

rated identified David Bell, a former

player who spent parts of twelve seasons as an

infielder with six different major league teams

(the Cleveland Indians, St. Loui

s Cardinals, Seattle Mariners, Sa

n Francisco Giants, Philadelphia

Phillies, and Milwaukee Brewers)

as one of the customers who app

eared in records seized from

Applied Pharmacy Services of Mobile, Alabama.

According to the article, Bell reportedly

purchased six packages of human chorionic gona

datropin (“HCG”) from the pharmacy in April

2005 while he was playing for the Philadelphia Phillies.

462

HCG is a hormone that is produced

during pregnancy; it is used by

steroid abusers to counteract th

e effects of steroid use on the

body’s natural production of testosterone.

463

460

Roger Rubin and T.J. Quinn,

Ankiel Spills Juice on Self:

Admits Receiving HGH, but

on Doctor’s Orders

, N.Y. Daily News, Sept. 8, 2007, at 49.

461

See

Pat Borzi,

Ankiel’s Troubles Affecting Cardinals

, N.Y. Times, Sept. 15, 2007, at

D6.

462

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62.

463

See

U. Stenman, et al., Immunoprocedures for Detecting Human Chorionic

Gonadotropin: Clinical

Aspects and Doping Control

, 43 Clinical Chem. 1293-98 (1997).

245

Bell’s orders of HCG reportedly were prescribed by an Arizona anti-aging clinic.

The Sports Illustrated ar

ticle reported that Bell acknowledged to

reporters that he received the

drugs but explained that he had re

ceived a prescription for them “f

or a medical condition” that he

refused to identify, citing medical privacy laws.

464

Neither I nor any member of my inves

tigative staff had any prior knowledge of

any allegation about Bell.

Paul Byrd

On October 21, 2007, the San Francisco

Chronicle reported that Cleveland

Indians pitcher Paul Byrd had bought nearly

$25,000 worth of human growth hormone and

syringes from the Palm Beach Rejuvenation Center,

one of the anti-aging clinics implicated in

the Signature Pharmacy investigation, in thirte

en transactions betwee

n August 2002 and January

2005.

465

According to the story, Byrd used his credit card to purchase the

substance and received

more than 1,000 vials of human growth hormone

in the transactions, which were sent to his

home in Georgia, to the spring

training facility of the Atlanta

Braves, where he was playing at

the time, and in one instance to a New York hotel.

466

In public comments in response to the arti

cle, Byrd admitted that he had been

taking human growth hormone but said that he ha

d been using it to treat a tumor on his pituitary

gland. Byrd reportedly said that he had ne

ver taken “any hormone or drug that was not

464

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62.

465

Byrd has played for six different clubs in Major League Ba

seball since 1995, the

New York Mets, Atlanta Braves, Philadelphia Phill

ies, Kansas City Royals, Los Angeles Angels

and Cleveland Indians.

466

Lance Williams and Mark Fainaru-Wada,

Drug Scandal Hits the Playoffs

S.F. Chron., Oct. 21, 2007, at A1.

246

prescribed” to him by a doctor.

467

The Chronicle reported that tw

o of Byrd’s prescriptions had

been written by a Florida dentist

whose license was suspended in 2003.

468

Byrd also reportedly said that “[t]he

Indians, my coaches and MLB have known

that I have had a pituitary gland issue for so

me time,” but Rob Manfred in the Commissioner’s

Office denied that Major League Baseball had give

n Byrd or any other player a therapeutic use

exemption for human growth hormone.

469

Neither I nor any member of my inves

tigative staff had any prior knowledge of

any allegation about Byrd.

Jose Canseco

The March 6, 2006 Sports Illustrated articl

e reported that Jose Canseco’s name

appeared in customer records that had been

seized from Applied Pharmacy Services.

470

The

article reported that Canseco made purchases

in 2004 of human growth hormone (somatropin),

testosterone, stanozolol, and

HCG, along with 340 syringes using a now-defunct Florida anti-

aging clinic called Health Watch. The purchas

es were shipped to Canseco at his home in

California. Canseco could

not be reached for comment

at the time of the article.

471

467

Jack Curry,

Byrd Admits Using H.G.H. to Treat Tumor

, N.Y. Times, Oct. 22, 2007,

at D8.

468

Lance Williams and Mark Fainaru-Wada,

Drug Scandal Hits the Playoffs

S.F. Chron., Oct. 21, 2007, at A1.

469

Anthony McCarron and T.J. Quinn,

MLB Denies Allowing Paul Byrd to Use HGH

N.Y. Daily News, Oct. 22, 2007.

470

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62;

see also

Big Names Surface in Drug Sting: Holyfield,

Matthews Jr., Canseco Linked as Clients

, SI.com, Feb. 28, 2007.

471

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

Sports Illustrated, Mar. 12, 2007, at 62.

247

In the article, his lawyer Robert Saun

ooke reportedly said that he doubted that

Canseco was a customer of Applied because he wa

s unaware of his client using the internet for

purchases of performance enhancing substances.

472

In a later telephone interview with my

investigative staff, however, Saunooke confirme

d that Canseco had purchased human growth

hormone over the internet on several occasions

, both before and after his retirement from

baseball. Saunooke said that Cans

eco had taken a blood test in c

onnection with th

ese purchases.

He was not, however, certain of the time frame of

these purchases or whether Canseco purchased

human growth hormone or other controlled subs

tances from any other internet sites.

Jay Gibbons

In a September 9, 2007 article, Sports Illu

strated reported that Baltimore Orioles

outfielder Jay Gibbons was anothe

r major league player whose

name appeared in Signature

Pharmacy client records.

According to the article, between October 2003 and July 2005,

Gibbons reportedly received six shipments of

human growth hormone

(Genotropin), two

shipments of testosterone, and two shipments

of HCG pursuant to pres

criptions from South

Beach Rejuvenation Center in Miami Beach, Florid

a that were filled by Signature Pharmacy.

The orders were shipped to

Gibbons at his home in Arizona.

473

The article reported that one of the

two physicians whose name appeared on

Gibbons’s prescriptions was A.

Almarashi, the retired physicia

n whose name and DEA number

were forged by Ana Maria Santi, the former phys

ician who has pleaded guilty to both federal and

New York State charges aris

ing from the investigation.

474

Gibbons declined to comment on any

472

Big Names Surface in Drug Sting: Holyfi

eld, Matthews, Jr., Canseco Linked as

Clients

, SI.com, Feb. 28, 2007.

473

Luis Fernando Llosa and L. Jon Wertheim,

Gibbons Received Banned Drugs; O’s

Outfielder Latest Athlete Tied to Pipeline Pharmacy

, SI.com, Sept. 9, 2007.

474

Id.; see supra

at 240-41.

248

of these allegations.

475

Neither I nor any member of my

investigative staff had any prior

knowledge of these alle

gations about Gibbons.

In the meetings in October 2003 among Los Angeles Dodgers officials, it was

reportedly said that “Gibbons is a guy would

have interest in but juice involved there.”

476

The Commissioner’s Office met with Gibbons on September 18, 2007 to discuss

the news reports.

477

On December 6, 2007, the Commissioner’s Office announced a 15-day

suspension of Gibbons for violation

of the joint drug program, to take

effect at the start of the

2008 season. After the suspension was announced, Gibbons said: “I am deeply sorry for the

mistakes that I have made. I have no excuses

and bear sole responsibility for my decisions.

Years ago, I relied on the advice of a doctor, fi

lled a prescription, char

ged the HGH, which is a

medication, to my credit card and had only intended

to help speed my recovery from my injuries

and surgeries.”

478

Troy Glaus

Days before its article about Gibbons, Sports

Illustrated reported

that the name of

Toronto Blue Jays infielder Troy Glaus also

had been in Signature Pharmacy customer

records.

479

According to the article, between

September 2003 and May 2004, Glaus reportedly

purchased nandrolone and testoste

rone from the pharmacy through the New Hope Health Center,

a California anti-aging clinic,

using prescriptions written by

Dr. Ramon Scruggs, a California

475

476

See supra

at 131 (discussing meetings and notes).

477

See

Associated Press,

Baseball Round-up: Phillies Pull Closer to Mets with Win

N.Y. Times, Sept. 19, 2007, at D5.

478

See

Jeff Zrebiec and Dan Connolly,

Gibbons Must Sit for 15 Days

, Balt. Sun, Dec. 7,

2007.

479

Glaus has played for three clubs in Ma

jor League Baseball since 1998, the Anaheim

Angels, Arizona Diamondbacks,

and Toronto Blue Jays.

249

physician who was suspended from practice as of

March 2007 for issuing prescriptions over the

internet. The drugs were shipped to Glaus at his home in California. Glaus declined to comment

on these allegations.

480

Glaus reportedly met with officials from

the Commissioner’s Office in September

2007.

481

On December 6, 2007, the Commissioner’s Office announced that there was

insufficient evidence of a violation of the joint program in effect at the time of the conduct in

question to warrant discipline of Glaus.

Jason Grimsley

In its initial reporting on the raid

on Signature Pharmacy, the Albany Times

Union reported that former Arizona Diamondback

s pitcher Jason Grimsley was one of the

pharmacy’s customers.

482

Grimsley retired in 2006 after fede

ral authorities seized human growth

hormone shipped to his home. As discussed previously, Grimsley reportedly acknowledged in

an interview with law enforcement agents that he

learned from a former teammate, who was later

identified as David Segui, that he could obtai

n human growth hormone from a “wellness center”

in Florida by submitting a blood sample to a specified physician.

483

Jose Guillen

In an article on November 6, 2007, the Sa

n Francisco Chronicle reported that

Seattle Mariners outfielder Jose Guillen purch

ased human growth hormone, testosterone, and

480

Luis Fernando Llosa and L. Jon Wertheim,

Glaus Received Steroids; Pipeline

Pharmacy Provided Drugs to All-Star 3B

, SI.com, Sept. 7, 2007.

481

T.J. Quinn,

MLB Seeks Albany List

, N.Y. Daily News, Sept. 30, 2007, at 63.

482

Brendan J. Lyons,

A Web of Easy Steroids; Flori

da Raid Highlights a Lucrative

Business

, Albany Times Union, Feb. 28, 2007, at A1.

483

See

Redacted Affidavit of Jeff Novitz

ky sworn to on May 31, 2006, at 12-13;

see also

Luis Fernando Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting

, Sports

Illustrated, Mar. 12, 2007, at 62.

250

other steroids through the Palm Beach Rejuvenation

Center in multiple transactions over a three-

year period between 2002 and 2004 and possibly also in 2005.

484

According to the article, Guillen placed hi

s first order with the center on May 1,

2002, when he was playing for the Arizona Diam

ondbacks. He paid $2,180 by wire transfer for

human growth hormone, testoste

rone cypionate, nandrolone, and

syringes. On September 19,

2003, when he was playing for the Oakland Athle

tics, he used a credit card to purchase $2,083

worth of human growth hormone (Genotropin), te

stosterone propionate, st

anozolol, and syringes,

which were shipped to him at the Oakland Co

liseum. In July 2004, when Guillen was playing

for the Anaheim Angels, he “placed a $6,000 orde

r for [human] growth hormone, testosterone

propionate and syringes,” in addition to clomiphene and Novarel. The article also reported that

records reflected two additional orders from Guillen for human growth hormone and syringes: in

September 2003, when he was playing for Oakland and in June 2005, when he was playing for

the Washington Nationals. The article said that

it could not be verified from the records the

reporters reviewed whether these or

ders had been sent to Guillen.

485

The Chronicle article suggested that at least some of Guillen’s purchases of

human growth hormone were based on prescrip

tions that had been written by the same

suspended dentist who reportedly wrote prescr

iptions for human growth hormone for Paul

Byrd.

486

Neither I nor any member of my inves

tigative staff had any prior knowledge of

any allegation about Guillen.

484

See

Mark Fainaru-Wada and Lance Williams,

Baseball’s Drug Scandal Widens;

Former Athletic, Giant Among Steroid Clients of

Florida Clinic Targeted by Prosecutors,

S.F. Chron., Nov. 6, 2007, at A1.

485

Id.

486

Id.

251

The Commissioner’s Office met with Guille

n to discuss the allegations. On

December 6, 2007, the Commissioner’s Office announced a 15-day suspension of Guillen for

violation of the joint drug program, to take effect at the start of the 2008 season. According to

news reports, Michael Weiner, the general counsel of the Players

Association, said that Guillen

would appeal the suspension.

487

Jerry Hairston, Jr.

In an article on March

2, 2007, Sports Illustrated

reported that records from

Applied Pharmacy showed that Texas Rangers

outfielder Jerry Hairst

on, Jr. received human

growth hormone (Genotropin), HCG, and clomi

phene citrate from the pharmacy in May 2004.

One of Hairston’s prescriptions had been writte

n by A. Almarashi, the retired physician whose

name frequently was forged by Ana Maria Santi.

The article reported th

at Hairston received the

drugs at addresses in both Maryland a

nd Arizona. Hairston denied the report.

488

As previously

discussed, Kirk Radomski said that he sold

human growth hormone to Hairston in 2003 and

2004.

489

Darren Holmes

In a March 8, 2007 article, S

ports Illustrated reported

that former pitcher Darren

Holmes had purchased human growth hormone (s

omatropin) and testosterone from the Palm

Beach Rejuvenation Center in October 2003, whic

h was shipped to Holmes’s home in North

487

See

Michael S. Schmidt,

2 Players Suspended for

Acquiring Steroids and HGH

N.Y. Times, Dec. 7, 2007.

488

Luis Fernando Llosa and L. Jon Wertheim,

Documents: Hairston Received HGH;

Bogus Prescriptions at Heart of Probe; Player ‘Baffled,’

SI.com, Mar. 2, 2007.

489

See supra

at 207-08.

252

Carolina.

490

Holmes reportedly admitted to reporters that he ordered human growth hormone

after searching the internet for solutions to his sh

oulder pain but claimed that he never used it.

He also reportedly said that he

had not ordered the testosterone

that was included in the package,

which aroused his suspicion. After discussing wh

ether to use the human growth hormone with

his wife, Holmes reportedly said that he

“threw the box away and never used it.”

491

Neither I nor any member of my inves

tigative staff had any prior knowledge of

any allegation about Holmes.

Gary Matthews, Jr.

On February 27, 2007, the Albany Times

Union reported that the name of

Los Angeles Angels outfielder Gary Matthews,

Jr. appeared on a customer list of Applied

Pharmacy Services.

492

Sports Illustrated later reported

that Applied customer records showed

that in August 2004 Applied

shipped Matthews a package

of human growth hormone

(Genotropin) using a prescrip

tion arranged from the “now-def

unct” south Florida anti-aging

clinic Health Watch (the same clinic connected

to Jose Canseco’s purchases). The substances

490

See

Luis Fernando Llosa and L. Jon Wertheim,

Another Pro Athlete Named; Others

Clarify Position

, SI.com, Mar. 8, 2007. Holmes played for eight teams in Major League

Baseball between 1990 and 2003: the Los Ange

les Dodgers; Milwauk

ee Brewers; Colorado

Rockies; New York Yankees; Arizona Diamondbacks;

St. Louis Cardinals; Baltimore Orioles;

and Atlanta Braves.

491

See id

492

See

Brendan J. Lyons,

A Web of Easy Steroids: Flori

da Raid Highlights a Lucrative

Business

, Albany Times Union, Feb. 28, 2007, at A1. Matthews has played for seven teams in

Major League Baseball since 1999: the San Di

ego Padres, Chicago Cubs, Pittsburgh Pirates,

New York Mets, Baltimore Orioles, Te

xas Rangers, and Los Angeles Angels.

253

were shipped to Matthews at

an address in Mansfield, Texas.

493

Reporters learned that the

address belonged to a former minor lea

gue teammate and friend of Matthews.

494

Several weeks after the report appeared, Matthews issued a statement in which he

said “I have never taken H.G.H., during the

2004 season or any other time. Nobody has accused

me of doing so, and no law enforcement agency has

said I am a target of

any investigation for

doing so.” In his statement, Matthews did not

deny that human growth hormone had been

shipped to him, and he declined to answ

er reporters’ questions about that omission.

495

Chad Allen, who was Matthews’ teammate, to

ld my investigative staff that he had

allowed Matthews to reside in his condomin

ium in Dallas during the 2004 season while they

were both playing for the Texas Rangers. A

llen was assigned to the Rangers’ class AAA

affiliate during the season, but Matthews and

another player continued to live at the

condominium. When Allen retu

rned to his condominium afte

r the season, he found unused

syringes in a drawer. Allen did not know who

left the syringes behind, and he discarded them.

Neither I nor any member of my inves

tigative staff had any prior knowledge of

any allegation about Matthews. Matthews met w

ith officials from the Commissioner’s Office in

November 2007. On December 6, 2007, the Commissi

oner’s Office announced that there was

insufficient evidence of a violation of the joint program in effect at the time of the conduct in

question to warrant di

scipline of Matthews.

493

See Matthews ordered drug shipment, SI.com, Feb. 28, 2007;

see also

Luis Fernando

Llosa and L. Jon Wertheim,

Rx for Trouble: Inside the Steroid Sting, Sports Illustrated, Mar. 12,

2007, at 62;

See also

CASA Report, at

48; Ryan Connolly,

Balancing the Justices in Anti-Dopi

ng Law: The Need to Ensure Fair

Athletic Competition Through Effective Anti-Dop

ing Programs vs. The Pr

otection of Rights of

Accused Athletes

, 5 Va. Sports & Ent. L.J. 161, 165-66 (2006).

261

unannounced testing, research, and education;

and provided transparency by issuing annual

audited reports of its activities.

514

Also in 2000, Columbia University’s Na

tional Center on Addiction and Substance

Abuse formed a commission to study performanc

e enhancing substance use in Olympic sports.

Its report concluded that:

“[t]he evidence is clear: many

performance enhancing substances can

cause serious harm when used in the methods and levels designed to provide competitive

advantage.”

515

The commission recommended that drug testing programs include the following

characteristics: (1) administration by a truly i

ndependent organization with

broad authority over

testing and sanctioning; (2) comprehensive ye

ar-round unannounced testing; and (3) continued

research regarding performance enhancing subs

tances and more effective testing methods

designed to address cha

nges in doping techniques.

516

Similarly, in 1999 the IOC established

WADA “to coordinate a comprehensive

anti-doping program at the in

ternational level, laying dow

n common, effective, minimum

standards, compatible with those in interna

tionally recognized quality

standards for doping

controls, particularly with regard to out-of-c

ompetition controls, and

seeking equity for all

athletes in all sports and all countries.”

517

A 38-member board of di

rectors is divided equally

between individuals affiliated with the sports

organizations and those representing governments

from around the world (including the United States).

514

Doriane Lambelet Coleman, Memorandum Re:

Evaluation of Proposals by IOC and

USOC to Reform their Doping Control Programs

, dated Oct. 13, 1999, at 5-6.

515

CASA Report, at 53.

516

Id.

at 3-4.

517

Id.

at 47;

see

Connolly,

supra

note 513, at 165; Wadler 199

9 Statement, at 82 (“The

athletes’ confidence in the public trust has been

shaken. We must place the responsibility for

drug testing and enforcement of standards in

the hands of a stru

cture with unquestioned

probity.”).

262

In 2003, WADA published and adopted the WADA Code, which sets forth

a uniform and comprehensive set of anti-doping rule

s, policies, and standards for sport. WADA

also developed standards for testing procedures

, testing laboratories, managing the results of

drug tests, and approval of therapeutic use exem

ptions (under which th

e use of performance

enhancing substances is allowed for the

treatment of certain medical conditions).

518

WADA also

publishes a List of Prohibited Subs

tances and Models of Best Pr

actices and Guidelines on these

and related issues. The WADA Code was adopted

by all Olympic national sports federations

before the 2004 Athens Summer Olympic Games.

519

As a result of this history, certain char

acteristics are now widely recognized as

essential to an effective program to prevent th

e use of performance enhancing substances in

training and competition. These are:

1. independence of the program administrator;

2. transparency and accountability;

3. effective, year-round, unannounced testing;

4. adherence to best practices as they develop;

5. due process for athletes;

6. adequate funding; and

7. a robust education program.

520

518

See

Richard L. Hilderbrand, Ph.D., Richard

Wanninger, and Larry D. Bowers, Ph.D.,

An Update on Regulatory Issues in Antidoping Programs in Sport

, 2 Current Sports Med.

Reports 226-232, 227 (2003).

519

Connolly,

supra

note 513, at 165.

520

Wadler 1999 Statement, at 82-84;

The Necessary Components of an Anti-Doping

Agency or Program,

The Duke Conference on Doping, The Ce

nter for Sports Law and Policy,

Duke University of Law, at 3-4 (May 7-8, 1999).

263

Programs based on these principles can more re

adily adapt to changing

circumstances in the

ongoing contest between athletes who compete

clean and those who do not, although even the

strongest program cannot by itself entirely

eradicate the use of banned substances.

B. Review of the Administration

of the Major League Baseball

Joint Drug Prevention and Treatment Program

The following review of the current Majo

r League Baseball Joint Drug Prevention

and Treatment Program measures it against the

elements of an effective program discussed

above.

1. Independence

Major League Baseball’s joint program was revised in 2006 to create the position

of independent program administrator. This

reform was a significant positive step, but the

program still falls short of true independence.

Before the 2006 revisions, a committee composed of two representatives each

from the Commissioner’s Office and the Players A

ssociation, including one physician appointed

by each party, was responsible for overseeing an

d administering the joint program. At all

relevant times, the members of this Health

Policy Advisory Committ

ee (“HPAC”) were Rob

Manfred and Dr. Larry Westreich on behalf of

the Commissioner’s Office, and Gene Orza and

Dr. Joel Solomon on behalf of the Players Association.

521

The drug testing programs in other

professional sports leagues,

including the NFL, the NBA, and the NHL, also are jointly

controlled by the leagues and thei

r respective players associations.

Under the 2006 revisions, certain HPAC

responsibilities were delegated to a

newly created position of program administrator,

including overseeing testing, collection, and

521

A fifth member can be appointed by these

four members in the event that they are

unable to reach a majority deci

sion. The four-member HPAC al

ways has reached agreement,

however, and a fifth member ne

ver has been appointed.

264

analysis procedures, and program

operational review. In Ap

ril 2006, Dr. Bryan Wesley Smith,

a physician trained in sports medicine who also

serves as consultant to the Atlantic Coast

Conference, was appointed as the program administrator.

The program administrator may be remove

d by the Commissioner’s Office or the

Players Association, or either of

them, at any time for any reason.

522

In addition, the

Commissioner’s Office and the Play

ers Association have retained exclusive authority over the

most important aspects of the joint program, in

cluding: (1) the number

of tests administered

(both in-season and during the off-season); (2)

the determination of what substances are

prohibited; (3) the selection and

retention of the entities responsible for the collection and testing

of the samples; (4) determinations to order “r

easonable cause” testing; a

nd (5) investigating and

determining whether a test is consid

ered positive under the joint program.

523

The Commissioner’s Office and the Players

Association also retain control over

some aspects of the collection process. In thos

e areas in which he does not completely control

the collection process, however, Dr. Smith, the

independent program admi

nistrator, advised us

that he can make recommendati

ons to improve the joint progra

m and that none of the several

recommendations that he has made has been

rejected by the Commi

ssioner’s Office and the

Players Association.

522

Major League Baseball’s Joint Drug Pr

evention and Treatment Program § 1(B)(1)

(2006).

523

See generally

Major League Baseball’s Joint Drug

Prevention and Treatment Program

(2006). A test that is labeled positive by the testi

ng laboratory might still be considered not to be

positive under the joint program for a number of reasons, among them therapeutic use

exemptions, chain of custody issues

, allegations that a positive test

was the result of adulterated

supplements, and variations between A and B samples.

265

2. Transparency and Accountability

Transparency is essential to demonstrate

the integrity of any drug testing program.

In this context, transparency

means disclosure of sufficient in

formation about the operation of

the program to ensure that it is operated fair

ly and in accordance with

the expectations of

interested parties, including fans. The need for tr

ansparency must be balanced against a player’s

right to privacy.

A hallmark of a transparent drug testing

program is the issuance of periodic

reports of its operations. These reports do not id

entify individual test re

sults but, in general,

disclose the number of tests taken during th

e year, the number of those tests that were

determined by the testing laborator

y to be positive, the disposition of each

test, the substance

found in each positive test, and information regardi

ng other violations of the joint program.

The ability to audit a drug testing progra

m also is essential to show that positive

tests are handled appropriat

ely and are not suppressed.

524

In any drug testing program, there are

a number of stages at which violations can be igno

red or suppressed; this is generally referred to

as “results management.” For exam

ple, if a test is ordered but not

taken, an audit should resolve

whether the failure to take the test arose from th

e player’s refusal to be tested, which may be a

violation of the program and treated as a positive

test, or for another, more benign reason. In

addition, audits are necessary to demonstrate ad

herence to the testing protocols necessary to

ensure the integrity of the testing process.

Major League Baseball does not provide

reports on the joint

program’s aggregate

results and it appears that it ne

ver has been audited. The join

t program requires that, once CDT

524

Report of the Independent Int’l Review

Commission on Doping Control – U.S.A.

Track & Field, at 5-14 (July 11, 2001).

266

receives a negative result for a sample, it must im

mediately destroy all docu

ments relating to that

sample. This requirement could impede or prevent an audit.

525

In August 2006, I requested summaries of a

ggregate, de-identified data relating to

the administration of Major League Baseball’s

joint program. For the years 2003 through 2005,

the majority of the records necessary to compile

this data already had been destroyed. Even for

the then-ongoing 2006 season, we were advised that the records necessary to respond to certain

requests had not been retained.

526

The mandatory destruction of information

relating to negative tests impairs the

joint program’s transparency and limits the ability to

detect the use of steroi

ds. Best practices in

steroid testing are now focused on proving steroi

d use by reference to va

riations between the

results of a number of tests taken over a period

of time (referred to as “p

anel” or “longitudinal”

data). This method of proof requi

res that test result data from

prior negative tests be available.

527

The destruction of negative test data also ma

y prejudice players charged with banned substance

violations who might turn to longitudinal data

to support their defens

es to such charges.

525

Major League Baseball’s Joint Drug Pr

evention and Treatment

Program, Addendum B

(2006).

526

See

Letter from Robert D. Manfred Jr. to

Sen. George J. Mitchell, dated Mar. 28,

2007.

527

When a test results suggest

the possible use of anabolic

steroids but nevertheless does

not qualify as a positive test result, WADA proce

dures require the sample to be reported as

“atypical,” requiring further inve

stigation and comparison with prior test results or the

establishment of a longitudinal profile. Becau

se an individual’s rati

o of testosterone to

epitestosterone will remain relatively consistent fro

m test to test, changes in an individual’s T/E

ratio might be evidence of anabolic steroid use

even if the ratio does not

itself establish use.

Analysis of longitudinal data also can provide

a method to detect steroid use for so-called

“designer” steroids; this may provide a met

hod to combat the use of new and otherwise

potentially undetectable steroids

such as the designer steroid “the

clear” that was at the center of

the BALCO investigation.

267

3. Frequency of Testing

The third characteristic of

a state-of-the-art program

is effective, year-round,

unannounced testing. Major League Baseball has

increased the frequency of random testing

since the inception of its joint program. In 2004,

the first year in which program testing began,

each player was tested once during the regular

season on a random, unannounced basis. There

were 12 undisputed positive tests; none of the

players was suspended because the joint program

did not then provide for discip

line for a first positive test.

528

In 2005, 349 tests were administered in

excess of the “one test per player”

baseline under the joint program. The tests of

12 players were considered positive. Each of

those 12 players was suspended for 10 days without pay, which was then the discipline for a

first-time positive test for steroids under the program.

529

Beginning in 2006, testing was increased to

a minimum of two tests per player per

season. The first was an announced test conducted w

ithin five days after

the player reported to

spring training. The second test was conducted

on a randomly-selected date during the season

which, beginning in 2006, included the post-

season. In addition, up to 600 additional

unannounced tests could be conducted at random times

during the year. Post-season testing was

permitted for the first time, but no post-season tests were administered in 2006. In 2007, post-

season testing was conducted for the first time.

The 2006 revisions also provided, for the first

528

Letter from Robert D. Manfred, Jr. to

Sen. George J. Mitchell, dated Mar. 28, 2007,

at 6. The tests taken in 2004 (but

not later years) were

“paired tests” consisti

ng of an initial test

followed by a second test taken five to seven days

after the initial test.

Under this arrangement,

the collector advised the player at

the time of the initial test to

cease using any over-the-counter

supplement for at least seven days and, if the play

er tested positive at the second test taken five

to seven days after the initial test, a positive re

sult could not be disputed on the grounds that it

was based on the consumption of th

e over-the-counter supplement.

529

Id.

at 8.

268

time, for up to 60 off-season tests; in fact, 68 pl

ayers were tested (approx

imately 1 out of every

18 players).

Two players were deemed to have test

ed positive for steroids or similar

performance enhancing substances in 2006. Both

players received 50-game suspensions without

pay, which has been the discipline provided for

a first-time positive test for steroids under the

joint program since the beginning of 2006.

530

To date in 2007, announcements have been made

of 50-game suspensions of three players for pos

itive tests and one play

er based on non-analytic

evidence of a violation of the joint program.

531

The joint program also authorizes “reasona

ble cause” testing of

players suspected

of using a prohibited substance. As previously

discussed, this provision fo

rmalized a previously

unwritten understanding

between the Players Association an

d the Commissioner’s Office, and

reasonable cause testing for steroids has been used

on several occasions both before and after the

joint drug program was agreed upon.

532

Under the NFL drug program, players are subject to drug testing once each season

at training camp or whenever the player reports

. Thereafter random testing is conducted of ten

players for each team each week during the pr

e-season, regular season, and playoffs. The NFL

program does not require any off-season testing but permits it.

533

The NBA program provides

530

Id.

at 9. Jason Grimsley also received

a 50-game suspension in 2006 based on “non-

analytic” evidence of his use of performance enha

ncing substances in the form of his reported

statements to federal law enforcement agents.

531

As discussed above, on December 6, 2007

the Commissioner’s Office also announced

15-day suspensions of two players based on inform

ation that they had purchased steroids or

human growth hormone through rejuvenation clinics.

532

See supra

at 47-50.

533

National Football League Policy on Anabolic

Steroids and Related Substances, at § 3

(2007). Neither the NBA nor NHL

provide for off-season testing.

269

for random, unannounced testing of up to 4 times per player per season.

534

NHL players are

subject to 2 random, unannounced tests duri

ng the pre-season

and regular season.

535

Comparison

across leagues is difficult because of differences

in the language of the programs (some require a

specific number of tests per play

er while others only permit a certa

in number while not requiring

any minimum) and because the details of each policy’s implementation are not readily

available.

536

4. Adherence to Best Practices as They Develop

In the context of a drug testing program,

“best practices” encompass a wide array

of issues. Adherence to best practices is

important because administering any drug testing

program effectively is a daunting

challenge. Negative test results do not assure that the testing

program has stopped athletes from using pr

ohibited substances; as the Commissioner’s

consultant Dr. Gary Green from UCLA has noted,

negative test results also might be explained

by the use of prohibited substances that ca

nnot be detected, because the substance was

eliminated from the body before the test, by coll

ection failures, by the presence of a prohibited

substance below testing tolerances, or by

the athlete’s efforts to evade detection.

Selected issues of partic

ular significance to Major

League Baseball’s joint

program are reviewed below.

534

National Basketball Players Association

Collective Bargaining Agreement, Art. 33

§ 6(a) (1999).

535

Collective Bargaining Agreement Between

National Hockey League and National

Hockey League Players Association, Art. 47 § 47.6 (2005).

536

In a recent article, for example, it was

reported that the NFL program does not, in

practice, test players on game days and that “at

least one day of testing almost always tak[es]

place the day after a game.”

See

Michael S. Schmidt,

Doping Experts Find Loopholes Beyond

Baseball

, N.Y. Times, Dec. 11, 2007.

270

a. Collection Issues

Sample collection is an inte

gral part of the drug testi

ng process. Dr. Green has

observed that “[t]he laboratory

[that analyzes the urine sample]

is only as good as the collection

process and the entire program can be compro

mised unless the protocol

s are well written and

adhered to.”

537

There are a number of methods by whic

h athletes with advance notice of a drug

test can manipulate their samp

les to avoid a positive test.

538

The collection procedures under the

joint program address many of these potential me

thods of evasion by, for example, requiring that

a witness observe the player when he is providing a sample (to prevent substitution), requiring

players to wash their hands before providing a sa

mple (to prevent adulteration of the sample),

and screening for specific gravity and pH (to det

ect attempts to dilute or mask a sample).

Since the beginning of testing in 200

3, Comprehensive Drug Testing, Inc. has

been responsible for collection of

samples in Major League Base

ball. When CDT was selected,

it already was providing similar services to the

minor league testing program established by the

Commissioner. In 2005, however, after Dr. Green

reviewed the minor league program and

reported several problems with CDT’s collecti

on methods to the Commissioner’s Office, CDT

was replaced in that program by the Na

tional Center for Drug Free Sport.

CDT continues to serve as the sample collector for the Major League Baseball

joint program. Its representatives advised us

that CDT now has separate workplace and sports

collection divisions and uses only independently contracted colle

ctors trained in the sports

context for Major League Baseba

ll, thereby addressing two of Dr

. Green’s concerns about its

work under the minor league program. Rob Ma

nfred told us that CDT has made other

537

Gary Green, M.D.,

Summary of Anabolic Steroids and Related Compounds

, Prepared

for Major League Baseball, Mar. 23, 2006.

538

An account of the efforts of some viol

ators to avoid detection can be found in

Galabin

Boevski v. International

Weightliftin

g Federation

, CAS 2004/A/607.

271

improvements in performing its responsibilities

under the Major League Baseball joint program,

and Dr. Bryan Smith also described improvements in

collection procedures that have been made

since he became the program administrator.

In July 2005, CDT recommended that major league players remain under

observation by its personnel from the time they were advised that they would be tested until the

actual collection of the specimens. Effective supe

rvision of players after test notification is

important for a number of reasons, among them to prevent players from diluting their samples

through a variety of means.

539

The Commissioner’s Office and the

Players Association agreed to

observation of players but dir

ected that a club representati

ve should be responsible for

monitoring players selected for testing rather than CDT.

540

This practice was changed again early in the 2007 season, when CDT began

staffing its tests with a chaperone

in addition to a co

llector. When the collector and chaperone

arrive at a clubhouse, they provide

the team representative with a list

of the players to be tested –

typically between four to eight players, alt

hough sometimes as many as ten. The chaperone

accompanies the team representative as he notif

ies the players who have been selected for

testing. Each player has up to thirty minutes follo

wing notification to check in

with the collector.

539

Dr. Green advised that diluted samples (those with insufficient specific gravity)

usually result from attempts to mask prohibite

d substances in the play

er's body. In 2006, 4% of

major league drug testing samples were deemed to

have been diluted at th

e testing site, compared

with 2% of the minor league testing samples that same year.

See

Letter from Robert D.

Manfred., Jr., to Sen. George J. Mitchell, dated

Mar. 28, 2007, at 9; Letter from Robert D.

Manfred., Jr., to Charles P. Scheeler, dated Oct.

30, 2007. In a letter, Dr.

Christianne Ayotte, the

director of the Montreal laborat

ory that analyzes samples under the program, said that “[w]e

have not observed any difference with regards to

the proportion of dilute

specimens between the

samples belonging to MLB and other Olympic sports sent to the INRS (“the Montreal

Laboratory”) for analysis.” Lett

er from Dr. Christianne Ayotte to

Sen. George J. Mitchell, dated

Dec. 6, 2007.

540

see

Jack Curry, To Tighten Drug Tests, Teams

Are Secretly Monitoring Players

N.Y. Times, Apr. 1, 2007, at Sports 1 (describing

chaperoning by club officials in place prior to

mid-2007).

272

If the player states at check-in

that he is unable to provide a

sample at that time, he may “go

about his regular pre-game activiti

es.” This procedure permits the players to provide samples

several hours after the in

itial notification. The

chaperone is responsible

for monitoring the

players until they provide samples.

One possible difficulty with the arrange

ment is that CDT chaperones are not

permitted to enter the dugout, field of play, or media room, where chaperoned players might go.

The Commissioner’s Office believes that minimal ri

sk arises from these limitations because of

players’ inability to engage in ma

sking activities in

these public areas.

The problem of advance notice is even more challenging for off-season testing.

In 2006, 68 samples were collected from player

s in the off-season pursuant to the joint

program.

541

Those players received advance notice of between 24 and 72 hours before the off-

season tests. While it is

without question more difficult to sche

dule a test of a player in the off-

season, providing up to 72 hours notice could con

ceivably permit a player who is using banned

substances to take steps to avoid a positive test.

542

b. Prohibited Substances

The WADA Code provides for the publicati

on of a list of prohibited substances

that “are prohibited as doping at all times

(both in-competition and out-of competition) because

of their potential to enhan

ce [athletic] performance.”

543

The list includes categories of banned

541

Letter from Robert D. Manfred, Jr. to Char

les P. Scheeler, date

d Oct. 30, 2007, at 1.

542

According to Professor McLaren, another co

llection issue could be

the program’s rule

requiring samples of less than 78 milliliters to be di

scarded. If a player’s sample is smaller, it is

discarded; if second and third samples similarl

y are smaller than 78 milliliters, those samples

also are discarded and the player is excused fr

om the test for that day. This could permit a

concerned player to evade detection.

543

See

WADA,

World Anti-Doping Code

, § 4.2 (Mar. 2003).

273

substances, including anabolic agen

ts (such as steroids), hormones

and related substances, agents

with anti-estrogenic activity, and di

uretics and other masking agents.

544

To provide flexibility to address the

newly-developed performance enhancing

substances, the prohibited list bans substances th

at are not named specifically but that have a

similar chemical structure or similar biological

effects. In the case of steroids, the 2007 WADA

prohibited list specifies 51 separate

steroids by name but also bans

the use of “other substances

with a similar chemical structure

or similar biological effect(s).”

545

The Major League Baseball joint drug pr

ogram includes specifically prohibited

steroids. Human growth hormone also is listed

as a prohibited substance. The program includes

a different formulation of a catch-all provisi

on, including among the prohibited list “anabolic

steroids that are not c

overed by Schedule III but that may not be

lawfully obtained or used in the

United States (including

‘designer steroids’).”

546

Several types of performance enhanci

ng substances that are included on the

WADA prohibited list are not prohibited under th

e joint program including certain types of

diuretics and other masking agents that can be

used by athletes to avoid testing positive.

547

Rob

Manfred informed us, however, that each

year the Montreal Laboratory provides the

Commissioner’s Office and the Players Associat

ion with the updated li

st of diuretics and

masking agents and tests for them.

544

See

WADA,

The 2007 Prohibited List for the World Anti-Doping Code

, at 2-7

(Sept. 16, 2006).

545

Id.

at 3.

546

See

Major League Baseball’s

Joint Drug Treatment and Prevention Program, § 2(B),

at 4-5 (2006).

547

See

2007 WADA Prohibited List,

supra note

544, at 6. The joint program also places

the burden of proof on the independent program

administrator to show that a player took a

particular masking substance (such as a diuretic)

with an intent to avoid accurate testing.

274

c. Therapeutic Use Exemptions

Beginning in 2006, the program administrator received authority to issue

therapeutic use exemptions to players in circum

stances where the player is able to produce a

medically appropriate prescription for an othe

rwise banned substance.

If the prescribing

physician is not the club physicia

n, the player or the outside

physician must notify the club

physician of the use of the prohibited substance

and the issuance of the

prescription before any

sample is taken.

To be medically appropriate, a prescr

iption must be based on a documented

medical need under standards accepted in th

e United States or Canada. The program

administrator may request a player who has tested positive, or the player’s physician, to provide

documentation of the player’s medical need for th

e prescribed substance. Upon review of the

documentation and possible consultation with an

expert in the area covered by the prescription,

the program administrator reports to

HPAC his determination of whether to deem the test result a

positive under the joint program.

Although the joint program did not explicitly

authorize the gran

t of therapeutic

use exemptions before 2006, Rob Manfred told us

that in 2004 and 2005 there was an exemption

that was essentially the same as the therapeutic use exemption provisions that exist today.

I asked for the number of therapeutic use exemptions granted each year for

performance enhancing substances (without

identifying the players involved) because

therapeutic use exemptions have been a significant

loophole in some drug testing programs.

548

The Commissioner’s Office and the

Players Association declined to

provide that information on

the ground that it is considered

confidential under th

e joint program.

548

See

Robert Weiner and Cael Pulitzer,

Loopholes in Olympic Drug Policy Big Enough

to Ski Through

, Seattle Post-Intelligencer, Feb. 10, 2006, at B7.

275

WADA has developed specific

standards for granting therapeutic use exemptions,

which the joint program doe

s not expressly include.

549

However, the program administrator, Dr.

Smith, advised us that he applies all of the W

ADA criteria in evaluating requests for therapeutic

use exemptions under the joint program other than

the requirement that those requests be made

before a positive test result.

d. Discipline for Use or Posse

ssion of Prohibited Substances

As discussed earlier in this report, th

e current written provisions of the joint

program do not provide for the possibility of

discipline based on non-anal

ytic evidence of a

violation of the program. However, in 2006, th

e Players Association and the Commissioner’s

Office agreed that imposition of a 50-game su

spension on Arizona Diamondbacks pitcher Jason

Grimsley was permissible under the joint program

under the circumstances; the suspension was

based on non-analytic evidence of a program violation.

550

Since then, one other player has been

suspended for 50 games based on non-analytic

evidence of a program violation, and in

December 2007, two players were each suspended fo

r 15 days based on non-analytic evidence of

past violations.

e. Types of Tests Permitted

Under the joint program, testing violations

can be established only as the result of

a positive urine test. There curre

ntly is no scientifically reliable urine test for human growth

549

WADA standards require that: (1) a re

quest for a therapeutic use exemption

application must be submitted in advance rather

than after a positive drug test; (2) the use must

be necessary to treat a chronic medical condition

and such that an athlete’s health would be

significantly impaired if use was not permitted;

(3) the exemption would not enhance athletic

performance beyond restoring the athlete to normal

health; (4) there must not be any reasonable

therapeutic alternative to the prohibited substa

nce; and (5) the medical

condition being treated

must not be a consequence of prior non-th

erapeutic use of any prohibited substance.

550

See supra

at 106-08.

276

hormone. As a result, the progr

am, like all similar drug testing programs, does not provide an

effective deterrent to use of that performance enhancing substance.

As is discussed elsewhere in this report,

many players are well aware of this fact.

Our discussions with scientists and an informal su

rvey of experts in the field suggest that a valid

urine test for human growth hormo

ne is not expected to be deve

loped in the near future. An

approved blood test for human growth hormone recen

tly became available, but its limitations are

such that its practical

utility is doubtful.

As noted previously, the programs in all of

the major professional sports leagues

in the United States are limited to urine tes

ting. In 2006, the Commissi

oner’s Office funded an

ongoing, 3-year study to develop a urin

e test for human growth hormone.

f. Drug Program Penalties

The severity of penalties is, of course, an important factor in deterrence. Major

League Baseball first provided for penalties for

failed drug tests under its joint program in 2004.

Those penalties were strengthened in two

revisions to the program, including imposing

suspensions based on a player’s first positive test

beginning in 2005. Currently, players who test

positive for the use of steroids and similar prohibited substances are subject to a 50-game

suspension for first-time offenders (30% of

the season), a 100-game suspension for second-time

offenders, and a permanent ban for third-time

offenders. All suspensions are without pay.

551

The penalties imposed unde

r the joint program are st

ronger than those imposed

under drug programs in other major professiona

l sports leagues in the United States.

552

The

current NFL drug policy provides for a four-game

suspension without pay (25% of the season)

551

Major League Baseball’s Joint Drug Pr

evention and Treatment Program, § 8(H)(2)

(2006).

552

WADA penalties are stronger, requiring a

two-year suspension for a first violation.

277

for a first violation, an eight-game suspension without pay for a second violation, and at least a

12- month suspension without pay for a third

violation, with the right to petition for

reinstatement after twelve months.

553

The NBA drug policy prescribes a 10-game suspension without pay for a first

violation (12% of the season), a 25-game susp

ension without pay for a second violation, and a

one-year suspension without pay for a third viola

tion. A fourth violati

on results in immediate

dismissal and disqualification.

554

Players who are dismissed may petition for reinstatement after

twelve months and are not required to subm

it to a drug test before being reinstated.

555

Under the NHL’s drug program, the firs

t violation results in a 20-game

suspension without pay (25% of the season),

the second violation results in a 60-game

suspension without pay and the third violati

on results in permanent suspension from the

league.

556

5. Due Process for Players

Any determination that a player has violated

the joint program is subject to review

by a three-member arbitration panel.

557

The confidentiality provisions of the program precluded

me from reviewing records of su

ch appeal proceedings. As a result, I have not been able to

553

National Football League Policy on Anabo

lic Steroids and Related Substances, § 6

(2007).

554

National Basketball Players Association

Collective Bargaining Agreement, Art. 33,

§ 9(c) (1999).

555

at Art. 33, § 12(a).

556

Collective Bargaining Agreement Between

National Hockey League and National

Hockey League Players Associat

ion, Art. 47, §§ 47.2. and 47.7 (2005).

557

See

Major League Baseball’s

Joint Drug Treatment and Prevention Program, § 9

(2006).

278

assess the operation of those procedures. Howe

ver, we received no information suggesting that

the rights of players were not adequately

protected in the operation of the program.

6. Adequate Funding

Major League Baseball budgeted $3,740,000 fo

r its drug testing program in 2006.

This amount included testing under both the majo

r league and minor league programs, and for

testing in the Dominica

n Republic and Venezuela.

558

We did not obtain any information to

suggest that cost concerns hinde

red the operation of the program, and I have been advised by the

Commissioner’s Office that there is a commitment

to provide the necessary funding to operate

the program in accordance with its terms.

7. Education

Educational efforts and recommendations

for their improvement are discussed in

the next chapter.

C. Allegations of Advance Notice of Tests

With the exception of spring training test

s, which since 2006 have been required

within five days of a player’s

reporting date, all testing under the

joint program is supposed to be

random and unannounced. I investigat

ed two allegations of advan

ce notice which, if true, could

reflect a serious deficiency in the operation

of the program because with enough advance notice

a player could evade effective testing.

1. Alleged Advance Notice of 2003 Survey Testing

In an article published on October 1

6, 2004, Lance Williams and Mark Fainaru-

Wada of the San Francisco Chronicle reported st

atements from a surrept

itious recording of a

558

Memorandum from Jennifer R. Gefsky to

Robert D. Manfred, Jr. Re: 2006 Medical/

Drug Testing Budget, dated Oct. 3, 2005, at 1.

279

conversation reportedly between Greg Anderson and

an unidentified person;

the authors repeated

those statements in

Game of Shadows

559

According to the article, a voice id

entified by an unnamed source to be

Anderson’s is heard on the tape stating:

“We know when they’re going to do it,” he would say. “See, the lab that

does this stuff is the lab that does . . .”

His voice trailed off for a moment.

“I’ll know like a week in advance or

two weeks in advance before they’re

going to do it,” Anderson continued. “But

it’s going to be either at the end

of May or beginning of June, right before

the All-Star break

definitely. So

. . . after the All-Star brea

k, we’re like . . . clear.”

560

Fainaru-Wada and Williams refused to talk

with me, and I could not obtain a copy

of the complete recording or otherwise conf

irm that Anderson made these statements.

561

I also

could not confirm that the statements were made “early in the 2003 season,” as the authors

reported. However, records that we obtained fr

om the contractor who administered his tests

show that Bonds was tested on May 28 and June

4, 2003. Therefore, if

the report of this

conversation is accurate Anderson correctly predicted the dates of testing, at

least for his client

Barry Bonds.

Rob Manfred said he learned of these al

legations from the original Chronicle

report in October 2004.

562

In response, Manfred and represen

tatives of the Players Association

asked CDT to investigate the allegations. Acco

rding to Manfred, CDT did investigate the matter

and found no evidence that any CDT employee had

been the source of advance notice. CDT

559

Lance Williams and Mark Fainaru-Wada,

Bonds Used Steroids in 2003, Trainer Says

on Secret Recording

, S.F. Chron., Oct. 16, 2004, at A1.

560

Lance Williams and Mark Fainaru-Wada,

Game of Shadows

144 (Gotham Books

2006).

561

On July 25, 2007, ESPN broadcasted what

was reported to be a portion of the

recording, but the excerpt it played did not include the statements quoted above.

562

Lance Williams and Mark Fainaru-Wada,

Bonds Used Steroids in 2003, Trainer Says

on Secret Recording

, S.F. Chron., Oct. 16, 2004, at A1.

280

explained in a conference call w

ith Manfred and a Players Associ

ation representative that its

collectors received on

ly two days advance notice of when a

test would occur and could not have

been the source of inside information a week or

two in advance of testing. While not “100%

satisfied” with CDT’s investig

ation, Manfred concluded that

CDT “had a handle on what was

going on.”

My staff interviewed the former CDT c

ontractor who collected samples provided

by Barry Bonds in 2003, and the CDT senior spor

ts program manager who selected the players

and scheduled the collection. Both of those witn

esses denied that Greg Anderson was, or could

have been, tipped off in advance of the drug

tests administered to Barry Bonds in 2003.

The collector produced faxes from CDT dated May 27 and June 3, 2003,

respectively, which advised him of

the collections he was to perform of eight Giants players,

including Barry Bonds, at PacBell

Park the day following his receipt of each fax. He said in his

interview that these faxes were the first notice he

received that he was to conduct the tests.

The notice to the collector and the players names were provided by the program

manager, who said in her interview that she did no

t select the names of th

e players to be tested

until the day before their tests. She also said

that the collector was provided notice of the date

and location of the test (but not

the team or players to be tested

) up to one or two weeks before

the test date. She added that Quest Diagnostics,

Inc., which analyzed all test samples collected

during 2003 testing, did not receive

notice of the players who would be tested. Its role was

limited to analyzing samples after they were collected.

281

2. Alleged Advance Notice During 2004 Season

I also received allegations that in 2004

some players were provided with advance

notice of tests that were supposed to be unannoun

ced. My investigation

of those allegations

yielded the following information.

In April 2004 federal agents executed

search warrants on two private firms

involved in the 2003 survey testing, Comprehens

ive Drug Testing, Inc. and Quest Diagnostics,

Inc.; the warrants sought drug

testing records and samples fo

r ten major league players

connected with the BALCO investigation. In the c

ourse of those searches,

the agents seized data

from which they believed they could determine

the identities of the major league players who

had tested positive during the anonymous survey testing.

563

Shortly after these events, the Players A

ssociation initiated discussions with the

Commissioner’s Office regardi

ng a possible suspension of dr

ug testing while the federal

investigation proceeded.

564

Manfred said the parties were conc

erned at the time that test results

that they believed until then raised only em

ployment issues had now become an issue in a

pending criminal investigation. Ultimatel

y, the Commissioner’s Office and the Players

Association agreed to a moratorium on 2004 drug test

ing. While the exact date and length of this

moratorium is uncertain, and the relevant 2004

testing records have b

een destroyed, Manfred

stated that the moratorium commenced very ea

rly in the season, prior

to the testing of any

significant number of players. Ma

nfred stated that the Players A

ssociation was not authorized to

advise its members of the ex

istence of the moratorium.

563

See

United States v. Comprehensive Drug Testing, Inc.

, 473 F.3d 915, 920-24

(9th Cir. 2006);

see supra

at 58-59 & n.163.

564

As mentioned above, the “governmental inve

stigation” provision

had not at that time

been added to the joint program. It was added in

late 2005 as the result of these events.

282

According to Manfred, the moratorium lasted for a short period. For most

players, drug tests then resumed. With respect

to the players who the fe

deral agents believed had

tested positive during 2003 survey testing, howev

er, the Commissioner’s Office and the Players

Association agreed that:

(1) the Players Association would be

permitted to advise those players

of this fact, since that info

rmation was now in the hands of

the government; (2) the testing

moratorium would continue with respect to thos

e players until the Players Association had an

opportunity to notify them; and (3) the Players A

ssociation would not advise any of the players

of the limited moratorium.

Sometime between mid-August and early

September 2004, Manfred contacted

Orza because the Players Association had not yet

notified the players involved. The 2004 season

was drawing to a close without those players havi

ng been tested because they remained under the

moratorium. Manfred said that he pressed Orza to

notify the players as soon as possible so that

they could be tested. All of the players were notified by early September 2004.

A former major league player

stated that in 2003 he was tested as part of the

survey testing program. He said that in Se

ptember 2004, Orza told him that he had tested

positive in 2003 and that he would be tested in

the next two weeks.

Independently, Kirk

Radomski told us that this former player ha

d earlier told him the same thing about Orza’s

statements shortly after the c

onversation between Orza and the

former player occurred. In

addition, the former player Larry

Bigbie told us that the same

former player had told him the

same thing about his conversation with Orza.

Furthermore, according to Bigbie, in 2004 a current player admitted to Bigbie that

he also had been told by a representative of th

e Players Association that he had tested positive

for steroids in 2003.

283

I am not permitted to identify either the former player with whom we spoke or the

current player who made the admission to Bi

gbie because the Commissioner’s Office and the

Players Association have concl

uded that for me to do so woul

d violate the confidentiality

provisions of the joint program.

According to the redacted affidavit filed

in support of a search warrant sought for

Jason Grimsley’s residence, Grimsley told federa

l agents that he, too, was informed that he had

tested positive for anabolic steroids in 2003. The

identity of the person who so advised Grimsley

is redacted in the public version of the affida

vit, and I did not have access to the unredacted

version.

565

Other players may have received similar

notice, since (1) the program required

that each player be tested once during the

2004 season, (2) the Commissioner’s Office and the

Players Association agreed that, since the govern

ment had the names of the players who they

believed had tested positive in 2003, those players

should be notified and should not be tested in

2004 until that notification had taken place, and (3) that notificati

on did not take place until late

August or early September 2004, just

weeks before the season ended.

Mr. Orza declined my request for an interview.

The Commissioner’s Office emphasized that

the circumstances described above

represented an emergency response to an unfores

een event: a government investigation that

obtained the names of players who federal agents believed had tested positive in the 2003 survey

testing, information that the parties had agreed

in advance would be anonymous. Consequently,

the Commissioner’s Office asserts

that these events do not describe the normal operation of the

program.

565

Affidavit of IRS Special Agent Jeff Novitz

ky in Support of Search Warrant, sworn to

on May 31, 2006, at ¶ 16.

284

The Players Association objected to my

making any reference to this matter in

this report. I offered to include a statement

by the Association and they provided me with the

following:

Because of certain actions by the

Government in 2004 (which led to

litigation, much of which has been unde

r seal), the parties were forced to

confront a serious threat to the c

onfidentiality and integrity of our

program. To combat that threat, and i

ndeed to save the credibility of our

program, the parties undertook certain meas

ures in that year only. These

were not unilateral actions undert

aken by the MLBPA, but actions

discussed and agreed upon between

the MLBPA and the Commissioner’s

Office. Each party was fully aware and in agreement with the steps the

other was taking.

The MLBPA believes that, by publishing in

this Report anything related to

these subjects, Senator Mitchell

and the Commissioner’s Office are

breaching promises of confidentiality made to the MLBPA and to its

members.

285

XI. Recommendations

To prevent the illegal use of performance enhancing substances in Major League

Baseball, I make a series of recommendations

. Some can be implemented by the Commissioner

unilaterally; some are subject to collective bargai

ning and therefore will re

quire the agreement of

the Players Association.

First, the Commissioner’s Office should plac

e a higher priority on the aggressive

investigation of non-testi

ng (so-called “non-analytic”) evidence of possession or use, enhance its

cooperation with law enforcement authorities, and make other

improvements designed to keep

performance enhancing substances ou

t of major league clubhouses.

Second, Major League Baseball needs a compelling and greatly enhanced

educational program that focuses on

real-life stories as well as on all the risks involved in the use

of performance enhancing substanc

es. These include health risk

s, career risks, and the many

dangers that can result from associating with drug dealers. This program should also give

significant attention to the status that major league players enjoy as role models and how their

use affects the decisions of

young people throughout the country.

I have been warned by a number of form

er players that some players will use

performance enhancing substances no matter what th

ey are told. They may

be right. But I also

heard from other former players who wrestle

d long and hard with the decision to use

performance enhancing substances. An educa

tion program that effectively communicates the

messages described above might not deter all play

ers from use, but it surely will deter some.

Third, although it is clear that even the be

st drug testing program is, by itself, not

sufficient, drug testing remains an important part

of a comprehensive approach to combatting the

illegal use of performance enha

ncing substances. The Commissioner does not have the authority

286

to act unilaterally on drug testing,

however; the agreement of the Pl

ayers Association is required.

The current joint drug program is part of the Ba

sic 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 ag

ree 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.

In recognition of the uncertainties in

both the timing of further action on drug

testing and in the positions of the parties when th

at action does take place, I set forth here a set of

principles and best prac

tices that presently characterize a st

ate-of-the-art drug

testing program.

Every program should be updated regularly to ke

ep pace with constantly changing challenges

and best practices. It will be

for the clubs and the Players As

sociation to decide when to

undertake a fresh review of these issues. When they do, I urge them to incorporate the principles

described in this report into Major

League Baseball’s joint drug program.

A. Recommendations for Inves

tigation of Non-Testing Based

Allegations of Performance Enhancing Substance Possession or Use

As described elsewhere in this report, the Commissioner’s Office has conducted

several investigations into alle

gations of the use of performan

ce enhancing substances by Major

League Baseball players.

566

These investigations were limite

d by a number of restrictions, some

self-imposed, some based upon collective bargaini

ng obligations or interpretations of those

obligations. As a result, they

were in many cases ineffective.

It is imperative that the Commissioner’s

Office have a more robust investigative

ability to respond promptly and effectively to a

llegations of the illega

l use or possession of

performance enhancing substances. This report

and recent law enforcement efforts show that

566

See

supra

at 91-108.

287

non-analytic evidence of use can be obtained.

The Commissioner’s Office must vigorously

respond when such allegations are made, particularly

as violators continue

to shift their use to

substances such as human growth hormone that

are difficult or impossible to detect through

currently available

testing procedures.

Set forth below are recommendations that,

if adopted, should materially enhance

that investigative capability. Th

is is critical to effectively identifying and disciplining those

players who continue to viol

ate Major League Baseball’s rules and policies. These

recommendations also are consistent with new

approaches to enforcement efforts adopted by

anti-doping agencies.

567

One agency head has concluded th

at drug testing “barely scratches the

surface.” Accordingly, in addition to a vigilant

drug testing program, the Commissioner’s Office

must also “focus . . . on building detection

capability for serious non-

analytical anti-doping

violations.”

568

1. The Commissioner Should Establish

a Department of Investigations

The principal responsibility of the

labor relations department of the

Commissioner’s Office is to oversee the collective bargaining relationship with the Players

Association, particularly the pe

riodic negotiation of the Basic Agreement. This responsibility

carries with it enormous implications for the financ

ial health of all of base

ball. In recent years

the labor relations department has performed that role well. Since 1994-95, there have been no

work stoppages in Major League Baseball. This f

act, perhaps more than a

ny other, explains why

Major League Baseball today is

on much firmer economic ground th

an it was just a decade ago.

567

Richard Ings,

Australia: Revolutionary Model Battl

es Doping on all Eight Fronts of

the Code

, 1 Play True

(World Anti-Doping Agency 2007), at 10.

568

Id.

288

That primary responsibility, however, also

complicates the ability of the labor

relations department to meet another of its respon

sibilities, to investigat

e allegations of player

wrongdoing. The department must maintain good re

lations with the Play

ers Association; but

aggressive, thorough investigations of the alle

ged possession or use by players of performance

enhancing substances may be inconsistent with

that objective. Many

of the investigations

involving performance enhancing substances have

not been aggressive or

thorough. Before this

investigation, with few exceptions, the Commi

ssioner’s Office had not

conducted investigative

interviews of current major league players regarding alleged possession or use of performance

enhancing substances, by that player or by others.

The Commissioner’s Office security departme

nt has been responsible for parts of

some investigations into the us

e or distribution of performanc

e enhancing substances. That

department’s primary function, however, is to pr

ovide security for the

players and the playing

environment. That also places security official

s in a difficult situation when they are asked to

investigate the very persons they

are responsible

for protecting.

The Commissioner should create a Departme

nt of Investigations, led by a senior

executive who reports directly to

the president of Major League

Baseball. Ideally, this senior

executive should have experience

as a senior leader in law en

forcement, with the highest

credibility among state and federal law enforcement

officials; the success of this department will

depend in part upon how well it interacts with law

enforcement authorities. The senior executive

should have sole authority over

all investigations of alleged

performance enhancing substance

violations and other threats to the integrity of the game, and should receive the resources and

other support needed to make

the office effective.

289

The Commissioner’s Office should establish

policies to ensure the integrity and

independence of the department’s investigations

, including the adoption of procedures analogous

to those employed by internal affairs departments of law enforcem

ent agencies. The adoption of

and adherence to these policies

can serve to ensure public conf

idence that the Commissioner’s

Office is responding vigorously to

all serious allegations of pe

rformance enhancing substance

violations.

The Commissioner’s Office has never publ

ished a written policy describing who

should receive and act on evidence of possible pe

rformance enhancing subs

tance use violations.

The Commissioner’s Office should adopt a written po

licy requiring that all information received

by club or Commissioner’s Office personnel abou

t possible performance enhancing substance

use (other than through the drug testing program) mu

st be reported immediately and directly to

the senior executive in charge of th

e Department of Investigations.

In turn, that senior ex

ecutive should be required

to report immediately all

significant allegations of player substance us

e directly to both the Commissioner and the

president of Major League Baseba

ll; this has not always happened

in the past. Additionally, the

Department of Investigations should make quart

erly reports to the Co

mmissioner and president

describing the Department’s

investigatory efforts.

The administrator of the drug testing program should also

receive any information

that, in the view of the senior executive in charge

of investigations, might be helpful in tailoring

the procedures of the testing program and w

ould not compromise ongoing investigations or,

where it is required, confidentiality. For an

obvious example, should the Department of

Investigations obtain information about possibl

e countermeasures player

s are taking to avoid

290

detection on drug tests, such information

should be reported immedi

ately to the program

administrator.

2. The Commissioner’s Office

Should More Effectively

Cooperate with Law Enforcement Agencies

No matter how skilled, the Commissioner’s

Office’s investigators face significant

disadvantages in investigating

illegal performance enhancing s

ubstance use compared to law

enforcement officials. Law enforcement officials,

of course, have a broa

d array of investigatory

powers, including search warra

nts and subpoena power.

Recently, law enforcement agencies have

become increasingly flexible and

creative in sharing with professional sports

organizations information gathered during

investigations. This practice makes sense beca

use law enforcement agencies typically focus

their efforts in illegal drug i

nvestigations on prosecution of the manufacturers, importers, and

distributors, not on the at

hletes who are the end users. Duri

ng these investigations, however, law

enforcement agencies often accumulate

evidence of use by individuals.

This is what happened in the prosecuti

on of Kirk Radomski by the United States

Attorney’s Office for the Northern District of California. As described in this report, the

Radomski investigation yielded information re

garding performance enhancing substance use by

major league players, much of it corrobor

ated by documentary or other evidence.

The appointment of an senior executive

in charge of investigations, with an

impeccable law enforcement reputation and the

resources and authority needed to perform

effectively the duties of that office, will be an im

portant first step to improving relations with law

enforcement agencies. One law enforcement offici

al advised us in frustr

ation that there is no

clearly designated person in the Commissioner’s

Office to call when law enforcement does have

information. The senior executive in charge

of investigations woul

d be that person.

291

Improved relations with law enforcement ag

encies and customs officials may also

serve as a deterrent to substan

ce use by players. The Radomski

case, the Signature Pharmacy

investigation, and other performance enhancing s

ubstance investigations, for example, may have

implications beyond the individual

players identified in those cases

. If nothing else, they serve

as a warning to all players that no one is protect

ed from being identified by his supplier. And

suppliers may be more wary of supplying prof

essional athletes if they know that sports

organizations are aggressively seeking to identif

y and facilitate the pr

osecution of those who

supply illegal substances to athletes.

3. The Commissioner’s Office S

hould Actively Use the Clubs’

Powers, as Employer, to Investigat

e Violations of the Joint Program

One of the critical tools av

ailable to all employers is the investigatory interview.

Generally, an employer may compel union-repres

ented employees to attend and truthfully

respond during any interview conducted

by or on behalf of the employer.

569

The Ferguson Jenkins arbitration decision ha

s played a role in the interpretation of

a player’s rights during an

investigatory interview.

570

In Jenkins, an arbi

trator ruled that the

Commissioner could not impose discipline upon Jenki

ns for refusing to answer questions about

alleged possession of drugs of abuse while Jenk

ins was facing criminal charges for the same

conduct.

According to the Commissioner’s Office

and the Players Association, however,

no major league player ever has been convicted of

a criminal offense for the use or possession of

569

Where the employee reasonably believes th

e investigatory interview might result in

disciplinary action, he has

the right to representati

on at that interview.

See

NLRB v.

J. Weingarten, Inc

., 420 U.S. 251, 257 (1975) (“[T]he employee'

s right to request representation

as a condition of partic

ipation in an interview is limite

d to situations where the employee

reasonably believe[s] the investigation

will result in disciplinary action.”).

The Basic Agreement

also requires advance notice of such an in

terview. Basic Agreement, Art. XII(E).

570

See supra

at 29-31.

292

performance enhancing substances. And, as noted

elsewhere in this re

port, the policy of the

Department of Justice, and of other prosecutors,

is to prosecute the manufacturers, importers, and

distributors of performance enhanc

ing substances, not the athletes who use them. Thus, the basis

on which the Jenkins arbitrator re

lied – pending criminal charges

against the athlete based on the

same conduct – will rarely be an issue.

The Commissioner’s Office has these intervie

w rights to ensure that its rules are

followed, but before this investigation began activ

e major league players were rarely required to

participate in investigatory interviews rega

rding alleged performance enhancing substance

violations. Since this inve

stigation began, however, the Co

mmissioner’s Office has conducted a

number of interviews of major league play

ers accused of performance enhancing substance

violations, and the Commissioner has di

sciplined some of those players.

Unless there are compelling individual

circumstances to the contrary, the

Department of Investigations, once established,

should promptly seek to

interview any player

about whom allegations are recei

ved of performance enhancing s

ubstance violations and insist

upon full cooperation. Where law enforcement efforts have been the source of the information,

the Department should seek corroboration where

possible (for example,

records indicating the

ordering or receipt of such substances) so that

it has evidence to present to the player. This

practice would bring Major League Baseball in

to conformity with other employers.

4. All Clubs Should Have Clear, Written, and Well-Publicized

Policies for Reporting Informa

tion Relating to Possible

Performance Enhancing Substance Violations

Since 1991, Major League Baseball’s

Drug Policy has covered performance

enhancing substances expressly. That policy states in part:

If any club covers up or fails to di

sclose to [the Commissioner’s] office

any information concerning drug use by

a player, the Club will be fined in

293

an amount up to $2 million, the highest allowable amount under the Major

League Constitution.

571

Many club personnel told us that they

were not aware of the policy. The

Commissioner’s Office should act

ively publicize its policy rega

rding performance enhancing

substances to club personnel and require each

club to adopt a uniform, written policy for

reporting information about possible substance viol

ations. The club policy should state that any

information concerning a player’s possible us

e, possession, or distri

bution of performance

enhancing substances must be reported to a

designated club contact

immediately. The club

contact, in turn, should be required to promptly

report all such information to the Department of

Investigations.

At least one exception to th

is reporting requirement shoul

d be included in the club

policy. Physicians and club athletic trainers should

not be required to repo

rt such information if

to do so would cause them to violate federal or st

ate law relating to the confidentiality of patient

communications or information.

572

To ensure that the clubs are meeting thei

r long-standing obligati

ons to report all

information concerning possible po

ssession or use, the Commissi

oner’s Office should require all

club personnel with responsibility

affecting baseball operations

to sign annual certifications.

These certifications should affirm that the

club employee has no undisclosed, actual knowledge

of any possible possession or use of performan

ce enhancing substances by any current major

league player. This certificati

on should provide an exception for

athletic trainers, to the extent

571

See

Memorandum from Commissioner Selig to

All Clubs Re: Baseball’s Drug Policy

and Prevention Program, dated Mar. 2, 2005, at 2.

The amount of the fine has varied over time.

572

At the same time, the Commissioner’s O

ffice should revise its substance policy to

exempt clubs from sanctions for failure to pr

ovide other reportable information where the

disclosure of such information by a physician

or athletic trainer w

ould violate the law.

294

that they are in receipt of responsive information the disclosure of which would violate the law

or the rules of applicab

le licensing organizations.

573

In the event of a failure to certify, or

should the Commissioner’s Office determine

that a certification was false, the Commissioner

should exercise his discretion under the “best

interests of the game” clause to impose di

scipline appropriate to the circumstances.

5. Logging Packages Sent to Play

ers at Major League Ballparks

In a number of incidents of players’ posse

ssion or use that have been described in

this report, a major league player reportedly

received deliveries of performance enhancing

substances through clubhouse attendants at Major

League Baseball facili

ties. Kirk Radomski

shipped illegal substances to some of his cust

omers at major league clubhouses. Some players

who purchased performance enha

ncing substances through rejuve

nation centers also reportedly

had the purchases shipped to them at their clubhouses.

We interviewed clubhouse personnel throughou

t Major League Baseball. It is

apparent from those interviews

that players receive a signific

ant volume of mail, most of it

entirely legitimate, in care of th

eir clubhouse managers. In respons

e to recent news reports that

players have received shipments of human

growth hormone and other substances from

compounding pharmacies at major league ballparks,

George Hanna, who is

the current director

of investigations for the security department in

the Commissioner’s Office,

has suggested that all

packages received for players at major league clubhouses be logged.

The Commissioner's Office should require

each major and minor league club to

establish a system to log every p

ackage received for a player at it

s facilities. These logs should

record the sender, the sender’s address and phone nu

mber, the recipient, the

date of delivery, and

573

Physicians are typically not club employees

, and thus would be exempt from this

certification requirement.

295

the type of package. Copies of these logs shoul

d be maintained for a period of time sufficient to

aid in any subsequent investigations.

B. Additional Actions to Address Perf

ormance Enhancing Substance Violations

There are several other actions that th

e Commissioner can take to address the

issue that do not requ

ire collective bargaining.

1. Background Investigations of Pr

ospective Clubhouse Personnel

Kirk Radomski and Luis Perez vividly de

monstrate that sources of supply can

come from within the

clubhouse. The Commissioner’s Office mu

st require all clubs to submit to

it the names of proposed clubhouse personnel hires for appropriate background checks.

2. Random Drug Testing of Clubhouse Personnel

In 2003, the security department of

the Commissioner’s Office recommended

possible random drug testing of clubhouse personnel in conjunction

with its investigation of the

Luis Perez incident that is desc

ribed earlier in this report. Ba

seball’s drug policy has provided

for the possibility of random

testing of non-playing personne

l for decades. Kirk Radomski

admitted that he was using steroids while he

was a clubhouse attendant with the Mets, a time

when he began building the relationships that w

ould ultimately facilita

te his distribution of

performance enhancing substances to players after he left the Mets.

The 2003 proposal to implement mandatory, random, unannounced drug testing

for clubhouse personnel was never adopt

ed, but officials in the secur

ity department continue to

recommend it. The testing coul

d be conducted in conjunction w

ith testing of major league

players under the joint drug program.

3. Hot Line for Reporting Anonymous Tips

Sources both currently and formerly associ

ated with Major League Baseball have

suggested that an anonymous hotline or ethics

committee for reporting tips

may prove useful.

296

USADA and its counterparts have employed such hotlines for some time and report that they

have yielded information that resulted in

the detection of drug violations.

4. The Top Draft Prospects Should Be Tested

Prior to the Major League Draft

The Major League Baseball Scouting Bureau identifies the top 100 draft eligible

prospects annually. The scouting bu

reau has proposed that those

prospects be subjected to drug

tests before the draft each year. It has had pr

eliminary contacts with the National Collegiate

Athlete Association to discuss th

e feasibility of this proposal.

As with the minor league testing program, unannounced tests will discourage the

use of performance enhancing substances from

the very beginning of a player’s professional

career. The testing of

draft prospects could be administered

as an adjunct of the minor league

testing program.

C. Educational and Related

Recommendations to Decrease

Use of Performance Enhancing Substances

Critical to any effort to deter performance enhancing substance use in Major

League Baseball is an effective educational

program designed to inform players about the

dangers of substance use in a way that will resonate

with them. Over the last several years, the

Commissioner’s Office and the Play

ers Association have made an

increased effort to provide

players and some club personnel with educational materials on performance enhancing

substances.

Some of these efforts have been effective. For example, in 2003 the

Commissioner’s Office hired Dr. Gary Green as a consultant responsible for, among other things,

“[d]eveloping and implementing educational programs and materials for Major League and

minor league players” regarding “anabolic

steroids and [other] performance enhancing

297

agents.”

574

Dr. Green has done an effective job of

educating doctors and other medical personnel

on the dangers of performance enhancing substan

ces. The Texas Rangers have retained Dr. Jay

Hoffman, Professor in Health and Education Sc

ience and a former National Football League

player, as a confidential resource

for its players regarding performa

nce enhancing substance use.

Additional efforts have in

cluded the production of an

educational video, in both

English and Spanish, that is shown to all players

in spring training and the

distribution of posters

and educational pamphlets. Spri

ng training educational meetings fo

r players have been arranged.

Dr. Green also has conducted annual educational

sessions for team physicia

ns, athletic trainers,

and club employee assistance professionals.

Nevertheless, we heard criticism from

both former players and club personnel

about the current anti-ste

roids education programs. Some crit

icized the perceived shallowness of

the efforts, while others could not remember the programs at all, even though they were with

clubs when the programs were supposed to have b

een presented. Plainly, there is much room for

improvement.

In contrast, the issues of gambling, other

threats to the integrity of the game, and

players’ safety receive prominent educational a

ttention. Nearly everyone we interviewed could

vividly recall an educationa

l program addressing gambling.

575

Major League Baseball’s

574

Dr. Green has a long background in testing fo

r, and education rela

ted to, performance

enhancing substances, including serving as dire

ctor of UCLA’s intercollegiate drug testing

program, as the chairman of the NCAA’s S

ubcommittee on Drug Testing and Drug Education,

and as a USADA panel member.

575

The problem of gambling predates the Play

ers Association and co

llective bargaining

by many decades. Gambling by players on the Chicago White Sox was the impetus for the

creation of the position of

Commissioner of Baseball in

1920. For that reason, the

Commissioner can act unilaterally with respec

t to gambling (although even for gambling his

disciplinary powers are subject

to the “just cause” limitation of the Basic Agreement).

298

educational programs regarding player safety

include dramatic role playing and memorable

personal testimonials that are particularly

effective in conveying their messages.

In this section I propose a

series of recommendations in

tended to improve Major

League Baseball’s performance enhancing substance education program. These

recommendations are derived from many of the

interviews conducted in

this investigation,

including interviews of a number of experts w

ho have first-hand experien

ce with educating elite

athletes on the dangers of perf

ormance enhancing substances.

The Design and Implementation of the Educational Program

Should Be Centralized with the I

ndependent Program Administrator

As with an effective testing program, an effective educational program must be

focused, independent, and transparent. The best and most efficient way to achieve this is to

delegate to the independent program admini

strator the responsibility for designing and

implementing the educational program. This w

ill ensure that the pr

ogram is unbiased and

operates consistently with the goals of the testi

ng program. Further, centr

alizing the educational

program will ensure the consistency and effectiveness of its message.

2. Spring Training Programs S

hould Include Testimonials

and Other Speakers and Presentations

As explained above, Major League Ba

seball does an effective job of

communicating its “no gambling” message through

testimonials and dramatic role playing. The

same methods should be used for performance e

nhancing substance education as well. The

following are examples of such methods that

have been used effec

tively in this area.

Dr. Jay Hoffman is a professor who has wr

itten extensively ab

out the effects of

performance enhancing substances on the body. Dr.

Hoffman also admits that he used anabolic

steroids when he played college and

professional football during the mid-1980s.

299

Jamie Reed, head athletic trainer for the Texas Rangers and President of the

Professional Baseball Athletic Trainer Society, to

ld us that because Dr. Hoffman is a former

athlete, players respond very we

ll to his anti-steroid message

and are more open to accept his

attestations concerning its use.

Other athletic trainers and

strength coaches echoed the opinion

that Dr. Hoffman is an effective speaker on these

issues. For example, Rick Slate, the New York

Mets’ strength and conditioning coach, identified Dr. Hoffman as a “tremendous help” to the

Professional Baseball Strength and Conditioning Co

aches Society in formulating its policies.

The Taylor Hooton Foundation was founded

in memory of Taylor Hooton, a high

school baseball player who committed suicide after

taking anabolic steroids. Taylor’s father,

Don Hooton, created the Foundation and has edu

cated high school and world class athletes

around the country about the dange

rs of performance enhanci

ng substances. Mr. Hooton’s

message painfully demonstrates that, when ma

jor league players use performance enhancing

substances, the ramifications go far beyond the play

ers themselves. Whether they like it or not,

Major League Baseball players are role models

for young athletes, and what they do – right or

wrong – affects those young people.

Telling the story of Taylor

Hooton, and those like him, to

players – many of whom are fathers or are

considering becoming fathers – will serve to

underscore the profound social dangers associated

with performance enhancing substance use by

high profile athletes.

Law enforcement agency personnel have o

ffered presentations to players during

spring training concerning the use of drugs of

abuse and gambling, and some individuals we

interviewed reported that these talks were memora

ble. Law enforcement speakers also should be

employed to discuss the dangers of performan

ce enhancing substances from their institutional

perspective. Law enforcement personnel are

uniquely suited to emphasize the criminal

300

implications of buying, selling, and

using these types of substances, and of consorting with those

who engage in illegal trafficking.

3. Explain the Health Risks in

Context and Provide Education

on Alternative Methods to Achieve the Same Results

Most of the performance enhancing subs

tance educational programs we reviewed

address the side effects of performance enhanc

ing substance use and th

e deleterious health

effects of long-term use. According to Dr. Hoffman, however, these health risks, although

important, generally will not deter a player from us

ing these substances. Th

is is because players

who use or are considering using performance enhancing substances do not consider them

dangerous if used properly. This view is reinforced when players see that other players who they

know are using performance enhancing substanc

es are not experienci

ng the adverse health

effects described in the educational materials.

To counter this skepticism

, Dr. Hoffman proposes that, while it is important to

educate players about the dangers of performance e

nhancing substances, it is

just as important to

educate them on how to achieve the same re

sults through proper training, nutrition, and

supplements that are legal and safe. While the clubs have done a better

job in recent years of

informing players of the importance of fitness

and proper nutrition through their strength and

conditioning coaches, this message should be

delivered in the context of substance use

prevention, so that the players

understand they can achieve some of the same benefits through

training and fitness and, if

necessary, legal supplements.

Another health risk associ

ated with performance enha

ncing substances is the

unknown nature and origin of the substances. Play

ers need to be aware of the risks associated

with buying black market drugs. Veterinary ster

oids are sometimes sold illegally to steroid

301

abusers.

576

Similarly, many of the home laboratories

that were raided by the Drug Enforcement

Administration as part of its “Operation Raw De

al” in 2007 were unsanitary, with steroids being

mixed in bathtubs or bathroom sinks in some instances.

577

An effective education program must

highlight the potential health

risks associated with taking dr

ugs of unknown origin without a

prescription.

4. Players Need to Understand the Non-Health Effects

of Buying Performance Enhancing Substances from

Street Dealers and “Internet Pharmaci

es”

In addition to the obvious health risks of

using performance enhancing substances

of unknown origin, players place th

eir livelihoods and reputations in

the hands of drug dealers.

The public outcry over the use of performance e

nhancing substances in professional sports has

provided the substance dealer with an opportunity

to exploit his relationshi

p with a player. The

Commissioner’s Office has been concerned for

decades that drug dealers could blackmail a

player to alter the outcome of a game in exchan

ge for maintaining the secrecy of the player’s

substance use.

578

Such threats to the integrity of the

game are as serious as gambling. Major

League Baseball’s performance enhancing s

ubstance educational pr

ogram must convey the

gravity of these dangers to th

e reputation and integrity of

the players and of the game.

576

Many Mexican manufacturers of veterinary

steroids altered their production to

account for increased demand for human use of steroids in the United States.

See

George

Dohrmann & Luis Fernando Llosa,

Special Report: Steroid Trafficking – the Mexican

Connection

, Sports Illustrated, Apr. 24, 2006, at 6

8. In December 2005, the DEA announced a

law enforcement operation, called “Operation Gear

Grinder,” in which eight veterinary steroid

manufacturers were raided by federa

l law enforcement authorities.

See

Press Release, DEA

Leads Largest Steroids Bust in History (Dec. 15, 2005); s

ee also

Michael O’Keeffe,

Drug

Enforcement Administration St

eroid Crackdown Hits Home

, N.Y. Daily News, Dec. 18, 2005.

577

See

Press Release, Drug Enforcement

Administration, DEA Announces Largest

Steroid Enforcement Action in U.S. History (Sept. 24, 2007).

578

See

Memorandum from Commissioner Peter Ue

berroth to All Clubs Re: Baseball’s

Drug Education and Prevention Program, dated May 14, 1985, at 1.

302

5. Prominently Display Posters About

Performance Enhancing Substance Use Prevention

Performance enhancing substance preventi

on should receive the same educational

priority as gambling. Each club should distribu

te educational materials to players, and each

clubhouse, weight room, and tr

aining room should promin

ently display posters about

performance enhancing substance use prevention th

at (1) forcefully articulate Major League

Baseball’s rule against performance enhancing substance use, (2) inform

players of the dangers

of performance enhancing substance use, and

(3) explain the penalties associated with

performance enhancing substance use.

D. Recommendations for Further Improvement of the

Joint Drug Prevention and Treatment Program

There have been a number of improvemen

ts in Major League Baseball’s drug

testing program since the Joint Drug Preventi

on and Treatment Program became effective in

2003. Because of the constantly evolving nature

of this problem, however, further improvements

are necessary.

As noted earlier, the clubs and the Player

s Association are under no obligation to

bargain, or even to discuss the joint program, until the current Basic Agreement expires in 2011.

Neither has the authority to change the current program unilaterally.

When the parties do address the drug te

sting program and related enforcement

issues, I urge them to make certain that th

eir program is consistent with the following

principles.

579

In the previous chapter, I described a nu

mber of concerns that

have arisen with

579

The principles described below apply only to

those aspects of the joint program that

are applicable to perfor

mance enhancing substances. I am

not suggesting modifications to the

provisions of the program to the extent that it

governs use of other drug

s unrelated to athletic

performance.

303

respect to Major League Baseball’s joint prog

ram. Where applicable, I also described the

initiatives adopted by the Commissioner and the Play

ers Association to address these concerns.

It is not necessary for me to recommend even more detailed refinements to the

joint program. First, the details of specific operati

ng procedures are best le

ft to the discretion of

an independent program administrator who will have

the benefit of all the relevant facts as of the

time the decision is to be made. Second, any chan

ges in such procedures are likely to have a

limited period of utility given the dynamic nature of illegal drug use and of testing programs.

All drug program administrators face a ne

ver ending series of challenges, the

details of which are often not foreseeable.

Accordingly, my recomm

endations address the

principles that pa

rties should adopt in

their drug program.

1. The Program Should Be Independent

Independence is the most important principl

e of an effective drug testing program.

The parties previously have rec

ognized the importance of this pr

inciple by delegating some of

the administrative authority for the program to an

independent program administrator. However,

under the current program, both the

independence of the program ad

ministrator and

the level of

authority that has been delegated to him are limited.

There are a number of methods by whic

h true independence may be achieved.

The precise form is for the pa

rties to decide thro

ugh collective bargaining. The independent

program administrator could serve for a substantia

l fixed term, not subject to removal except for

good cause. Alternatively, the par

ties could establish a self-perpe

tuating, non-profit corporation

that is completely independent of

the parties. There may be othe

r alternatives. Whatever form

they choose, the independent program administ

rator should hold exclusive authority over all

aspects of the formulation and administration of the program.

304

It is likely, and understandable, that th

e Players Associati

on will not agree to

relinquish authority over the lengt

h of penalties to an independe

nt program administrator.

Delegation of that aspect of the program mi

ght not be necessary, how

ever, given that the

penalties now in effect under the

joint program are the strongest of

any major professional sports

league in the United States.

580

2. The Program Should Be Transparent

Drug testing programs must respect the pr

ivacy rights of the athletes who are

tested. Yet to instill public trust and ensure

accountability, they must be as transparent as

possible consistent with protecti

ng those rights. Transparency can

be achieved by such actions

as submitting to outside audits, and publishing peri

odic reports of de-identified aggregate testing

results, retaining records of nega

tive test results so that confirmation is available to correctly

interpret subsequent tests, which may inure to

the benefit of a player charged with a positive

result in a later test. A tran

sparent program should provide the

public with aggregate data that

demonstrates the work of the program and the resu

lts achieved by it (but th

at does not reveal or

permit the determination of individual identities).

The importance of transparency is illustrat

ed by an article about the Major League

Baseball joint drug program that appeared in the San Diego Union-Tribune in May 2007.

581

The

article reported that the number of positive tests

reported by the Montreal testing laboratory that

is used by Major League Baseball and other

organizations increased

from around 20 in 2005 to

104 in 2006. Under WADA standards, the laboratory wa

s required to segregate its reported data

580

See supra

at 276-77.

581

Mark Zeigler,

Report: Stimulant Positive Tests

Up; Strong Indication of Use in

Baseball

, San Diego Union-Tribune, May 11, 2007.

305

by sport but not by client, and th

at laboratory has other clients

whose data are included in the

laboratory’s aggregate base

ball/softball data.

Nevertheless, the article drew speculativ

e conclusions from the aggregate data

about the effects of including stimulants

among the prohibited subs

tances under the joint

program, observing that “in the

absence of a fully transparent testing program by baseball, the

WADA report may be the closest thing to real numbers of positive tests.”

582

3. There Should Be Adequate Year-Round, Unannounced Drug Testing

Adequate year-round, unannounced testing

is essential to any effective drug

testing program. While strong sanctions for

violators are necessar

y, those sanctions are

meaningless unless testing maximizes the chance that violators will be detected. If tests are

limited, predictable, or announced in

advance, players can avoid dete

ction and evade discipline.

The formulation of what is adequate is

best left for determination by a truly

independent program administrator. It is lik

ely that the appropriate

amount of testing,

allocations between in-season and out-of-season

testing, and allocation

of resources between

targeted and random testing will not be static.

4. The Program Should Be Flexible Enough to

Employ Best Practices as They Develop

A state of the art drug te

sting program must employ

best practices as they

develop. Just as the methods that violators empl

oy to avoid detection are

not static, neither are

these best practices. This may involve modifica

tion of the program as enhanced techniques, new

tests, and best practices evolve.

582

Id.

306

5. The Program Should Continue to Resp

ect the Legitimate Rights of Players

While I believe that changes are necessary

to make the drug testing program more

effective, there is nothing inconsistent between

my recommendations and continued respect for

the legitimate privacy and due process rights of players. The principles upon which I have based

my analysis of the current program and my r

ecommendations require th

at an effective drug

testing program recognize the legitimate privacy a

nd due process rights of

all players. Although

there obviously have been some differences a

nd disagreements in recent years, the parties

generally appear to have respected players’ rights

, and I recommend that any changes to the

program in the future continue to recognize a

nd respect the legitimate

rights of players.

6. The Program Should Have Adequate Funding

A meaningful program requires the funding nece

ssary to be effective. It would be

contrary to Major League Baseball’s and the Play

ers Association’s self-int

erests to deny needed

resources to a truly

independent program.

* * *

These recommendations are designed to work

in combination with one another to

create a new environment, one that is more

aggressive in deterring the use of performance

enhancing substances, while still protecting the right

s of the players. I believe that the principal

beneficiaries of these reforms will be the majority of major league players who play clean and

follow the rules. These players have been ha

rmed by having to play against violators who

gained an unfair advantage, and further harmed by having the legitimacy of their fairly-earned

accomplishments frequently questioned. The clean

major league players deserve far better than

they have had to endure.

307

E. We Need to Look to the Future

All of these recommendations are prosp

ective. The onset of mandatory random

drug testing, the single most im

portant step taken so far to co

mbat the problem, was delayed for

years by the opposition of the Players Association. However, there is valid

ity to the assertion by

the Players Association that, pr

ior to 2002, the owners did not push hard for mandatory random

drug testing because they were much more conc

erned about the serious economic issues facing

baseball.

To prolong this debate will not resolve it

; each side will dig in its heels even

further. But it could seriously and perhaps fatally

detract from what I believe to be a critical

necessity: the need for everyone in baseball to

work together to devise and implement the

strongest possible strategy to co

mbat the illegal use of perf

ormance enhancing substances,

including the recommendations set forth in this report.

I was asked to investigate the use of pe

rformance enhancing substances by major

league players and to report what I found as fa

irly, as accurately, and as thoroughly as I could.

I have done so.

Only the Commissioner is vested with aut

hority to take disciplinary action. Any

such determination is properly for the Commissione

r to make, subject to th

e players’ right to a

hearing.

I urge the Commissioner to forego impos

ing 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 ag

ainst it; but I be

lieve that those in favor are

compelling.

308

First, a principal goal of th

is investigation is to bri

ng to a close this troubling

chapter in baseball’s history and

to use the lessons learned from the past to prevent the future use

of performance enhancing substances. While that

requires us to look back, as this report

necessarily does, all efforts s

hould now be directed to th

e future. That is why the

recommendations I make are prospective. Spendi

ng more months, or even

years, in contentious

disciplinary proceedings will keep

everyone mired in the past.

Second, most of the alleged violations in

this report are distant in time. For

current players, the allegations

of possession or use are at least

two, and as many as nine years

old. This covers a period when Major League

Baseball made numerous changes in its drug

policies and program: it went from limited probabl

e cause testing to mandatory random testing;

since 2002, the penalties under the program have

been increased several times; human growth

hormone was not included as a prohibited s

ubstance under the joint drug program until 2005.

Under basic principles of labor

and employment law, an employe

r must apply the policies in

place at the time of the conduct in question in dete

rmining what, if any, discipline is appropriate.

Until 2005, there was no penalty for a first positive drug test under the joint drug program,

although the Commissioner ha

s always had the authority to im

pose discipline for “just cause” for

evidence obtained outside of the program.

583

Third, and related, more than half of th

e players mentioned in this report are no

longer playing in Major League Baseball or its

affiliated minor leagues and thus are beyond the

authority of the Commissioner to impose discipline.

583

It should be noted, however, th

at the rule that there would

be no discipline for the first

positive test was part of the quid pro quo for the

Players Association’s agreement to mandatory

random drug testing. Indeed, the Basic Agreemen

t protects a “First Posi

tive Test Result” from

discipline but does not similarly protect the first

use of steroids from discipline. The primary

evidence of wrongdoing in this report was not obt

ained from baseball’s

testing program but

rather from an inde

pendent investigation.

309

Fourth, I have reported what I learned.

But I acknowledge and even emphasize

the obvious: there is much about

the illegal use of performance e

nhancing substances in baseball

that I did not learn. There were ot

her suppliers and there have been

other users, past and present.

Many of those named in this report were supplied

by Kirk Radomski. Yet plainly he was not the

only supplier of illegal substances

to major league players. Radomski himself said that some

players told him they had other

sources. And the evidence demons

trates that a number of players

have obtained performance enhanc

ing substances through so-called “rejuvenation centers” using

prescriptions of doubtful validity.

Fifth, the Commissioner promised, and I agre

ed, that the public should know what

I learned from this investigation. Perhaps the mo

st important lesson I learned is that this is a

serious problem that cannot be solved by anythi

ng less than a well-conceived, well-executed, and

cooperative effort by everyone involved in baseba

ll. From my experience in Northern Ireland

I learned that letting go of the past and looking to

the future is a very hard but necessary step

toward dealing with an ongoing problem.

That is what baseball now needs.

The Commissioner should give the player

s 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. This

would be a tangible and positive way for him to dem

onstrate to the players, to the clubs, to the

fans, and to the general public his desire for the

cooperative effort that baseball needs to deal

effectively with this problem. It also would

give him a clear and convincing basis for imposing

meaningful discipline fo

r future violations.

310

XII. Conclusions

There has been a great deal

of speculation about this

report. Much of it has

focused on players’ names: how many and which ones. After considering that issue very

carefully I concluded that it is

appropriate and necessary to in

clude them in this report.

Otherwise I would not have done what I was asked

to do: to try to find out what happened and

to report what I learned accu

rately, fairly, and thoroughly.

While the interest in names is understa

ndable, I hope the media and the public

will keep that part of the report in context a

nd will look beyond the indi

viduals to the central

conclusions and recommendations of this report.

In closing, I want to emphasize them:

1. The use of steroids in Major League Baseball was widespread. The

response by baseball was slow to

develop and was initially ineff

ective. For many years, citing

concerns for the privacy rights of the player

s, the Players Association opposed mandatory

random drug testing of its members for steroids

and other substances. But in 2002, the effort

gained momentum after the clubs and the Players

Association agreed to

and adopted a mandatory

random drug testing program. The current program

has been effective in th

at detectable steroid

use appears to have declined. However, that

does not mean that players have stopped using

performance enhancing substances. Many play

ers have shifted to

human growth hormone,

which is not detectable in any currently available urine test.

2. The minority of players who used such substances were wrong. They

violated federal law and baseball policy, and th

ey distorted the fairness of competition by trying

to gain an unfair advantage over the majority

of players who followed the law and the rules.

They – the players who follow the law and the rule

s – are faced with the painful choice of either

being placed at a competitive disadvantage or

becoming illegal users themselves. No one should

have to make that choice.

311

3. Obviously, the players who illegal

ly used performance enhancing

substances are responsible for their actions.

But they did not act in a vacuum. Everyone

involved in baseball over the past two decades

– Commissioners, club o

fficials, the Players

Association, and players – shares to

some extent in the responsibil

ity for the steroids era. There

was a collective failure to recogni

ze the problem as it emerged and to

deal with it early on. As a

result, an environment developed in which illegal use became widespread.

4. Knowledge and understanding of the past

are essential if the problem is to

be dealt with effectively in the future. But bein

g chained to the past is

not helpful. Baseball

does not need and cannot afford to engage in a ne

ver-ending search for the

name of every player

who ever used performance enha

ncing substances. The Commissione

r was right to ask for this

investigation and report.

It would have been impossible to get

closure on this issue without it, or

something like it.

5. But it is now time to look to the futu

re, to get on with the important and

difficult task that lies ahead. Ev

eryone involved in Major League Ba

seball should join in a well-

planned, well-executed, and sustained effort to

bring the era of steroids and human growth

hormone to an end and to prevent its recurrence in

some other form in the future. That is the

only way this cloud will be removed from the game. The adoption of the recommendations set

forth in this report will be a

first step in that direction.

A-1

Appendix A

Independence of the Investigation

There are a number of activities and current

or former relationships that existed

between me or my law firm, DLA Piper US LLP,

and various potentially interested persons or

entities. I am confident that none

of these matters affected my ab

ility to conduct an

investigation

that was thorough, impartial, and fa

ir. Among those are the following:

I have been a consultant to the owners

of the Boston Red Sox since that club was

acquired in 2002 by an ownership group led

by John W. Henry. The club labels

that position “director.” I am not and

have never been involved in any way in

baseball operations, and I have no vote

on any decisions by the owners. I do not

now hold, nor have I in the past ever hel

d, any ownership or other equity interest

in the Red Sox.

From 1995 until the end of 2006, I was a

director and, from March 2004, the

chairman of the board of directors of

The Walt Disney Company, a diversified

media company that among other businesse

s owns ABC, Inc. and its majority

owned subsidiary ESPN, Inc. Until 2003, Walt Disney owned the Anaheim

Angels (now the Los Angeles Angels).

For approximately one year beginning in September 2000 I served on the board of

directors of the Florida Marlins. I did not

hold, nor have I in

the past ever held,

any ownership or other equity interest in the Marlins.

I served as a member of the Blue Ri

bbon panel on baseball economics, which

issued a report on that subject in July

2000. The other members of that panel

were Richard C. Levin, Paul A. Volcker, and George F. Will.

During 2004, a lawyer in the Las Vegas o

ffice of DLA Piper (then called Piper

Rudnick LLP) acted as local counsel fo

r the Major League Baseball Players

Association in an action

filed by that Associati

on regarding the federal

government’s seizure of records concerning anonymous drug testing of players in

Major League Baseball that was con

ducted pursuant to the Basic Agreement

during 2003. The firm’s involvement e

nded in September 2004, even though the

litigation continued after that

date. I was not involved

in that case in any way and

was not aware of it prior

to this investigation.

My firm’s prior involvement as local c

ounsel for the Players Association also

required us to discuss with that organization my

appointment to conduct this investigation. As a

A-2

result of those discussions, the Players Associat

ion consented to my appointment, and to my use

of DLA Piper lawyers to assist me.

Role of Foley & Lardner LLP.

At the March 30, 2006 press conference

announcing my appointment, the Commissioner in

troduced two lawyers from Foley & Lardner

LLP who would also be involved in

the investigation. Foley & La

rdner regularly represents the

Commissioner and Major League Baseball in a va

riety of legal matters. Before joining the

Commissioner’s Office in 1998, Robert A. DuP

uy, who is the president and chief operating

officer of Major League Baseball, was a partner at

the Foley firm and in that position served as

outside counsel to the league

in a number of matters.

From the outset of this investigatio

n, I recognized the importance of my

interviewing the Commissioner to determine his own awareness of the use of performance

enhancing substances in baseball and the steps that were taken in response to that awareness.

For this reason, and in order to avoid even the

appearance of bias, the Commissioner, Foley &

Lardner and I agreed that lawyers from the Foley firm would not serve as members of my

investigative team, and they have not done so.

From the outset of this

investigation, Foley &

Lardner has performed a distinct

and important role as counsel

for the Commissioner’s Office.

B-1

Appendix B

Process of the Investigation

On March 30, 2006, Commissioner Selig announced this independent

investigation into the illegal use

of performance enhancing substan

ces in Major League Baseball.

As discussed earlier in this repo

rt, he asked me “to attempt to determine, as a factual matter,

whether any Major League players associated with

BALCO or otherwise us

ed steroids or other

illegal performance enhancing substances at

any point after” the 2002 Basic Agreement was

entered into. In his announcement, Commissioner

Selig also recognized th

at “[i]t may be that

conduct before the effective date of the 2002 Basi

c Agreement will prove helpful in reaching the

necessary factual determinations

,” and he therefore authorized me to follow the evidence

wherever it may lead.

The Commissioner agreed that I would ha

ve “all of the investigatory powers

available to the Commissioner” for the purposes of

the investigation and that I would have “full

discretion with respect to the means and manne

r of carrying out this

investigation.”

The Commissioner and the thirty major leag

ue clubs are subject to the provisions

of the Basic Agreement with the Players Asso

ciation. This imposes certain limitations upon

actions that the Commissioner can take with respect

to current players, an

d to the disclosure of

information arising out of the Major League

Baseball Joint Drug Prevention and Treatment

Program. The Commissioner retained the authority

to determine whether particular activities in

the course of this investigation might violat

e his obligations. I ag

reed to be bound by his

decisions, but I retained the right to state in my

report if I disagreed w

ith any such decisions.

I also agreed that the Commissioner’s Offi

ce would have the right to review my

report three business days in advance of its releas

e to the public to make certain that I did not

improperly include in it any information that is required to be kept confidential. I retained,

B-2

however, “unhindered discretion to

include in… [the] report what

ever information [I] deemed

appropriate” subject only to the Co

mmissioner’s right to instruct

me to not include information

that the Commissioner concluded he was under

a legal duty to keep confidential. The

Commissioner’s Office reviewed th

is report before it was release

d. No material changes were

made to the report as a result of that review.

The Investigative Team

I retained DLA Piper US LLP to assist me in this investigation. DLA Piper, in

turn, retained FTI Consulting, Inc.

to assist with the

collection and search

of electronic records

from the Commissioner’s Office and a number of th

e clubs. DLA Piper also retained three

expert consultants who provided advice in preparing this report and in developing its

conclusions: Richard V. Clark M.D., Ph.D.; Prof

essor James J. Heckman, Ph.D.; and Professor

Richard H. McLaren, HBA, LL.B., LL.M., C.Arb.

Dr. Clark is a research director for a

large pharmaceutical company. He is a

respected expert in endocrinol

ogy and andrology who has served in

leadership positions with

several professional societies in

those fields, including the American Society of Andrology. He

has authored a number of articles on studies in endocrinology and andrology and he has peer

reviewed other articles.

Mr. McLaren is a Professor of Law at the

University of Western Ontario who also

serves as a sports arbitrator. He is a member of

the independent Court of

Arbitration for Sport.

He served as an on-site arbitrator for the

Winter Olympic Games in 1998 and 2006, the Summer

Olympic Games in 2000 and 2004, and the Commonwealth Games in 2002, and will be an on-

site arbitrator at

the 2008 Summer Olympic Games in Beijing.

B-3

Dr. Heckman is the Henry Schultz Disti

nguished Service Professor in Economics

at the University of Chicago. He is a fellow

of the Econometrics Society and a member of the

Academy of Arts and Sciences and of the Natio

nal Academy of Sciences. Dr. Heckman’s work

has been widely published.

Dr. Heckman and his colleagues at Lexec

on, Inc. were retained to conduct a study

of aggregate, non-identifiable data derived fr

om spring training physical examinations to

evaluate trends in certain data,

such as cholesterol levels, that

can indicate the use of anabolic

steroids. Every player undergoes a spring tr

aining physical examination that includes a

comprehensive blood test. Dr. Heckman proposed constructing statistical models involving

these indicators and using “latent

variable analysis” to estimate leve

ls of anabolic steroid use in

Major League Baseball over time. In 2000, Dr

. Heckman was the co-r

ecipient of the Nobel

Memorial Prize in Economic Sciences for his work on latent variable analysis.

All medical data to be used in this study

was to be “de-identifie

d,” that is, stripped

of all information from which a player could be

identified. Nevertheless, some of the clubs and

the Players Association raised concerns as to

whether such a study w

ould violate state and

federal medical privacy laws. Ultimately, those concerns could not be resolved to the

satisfaction of the Players Associ

ation, and the study was not conducted.

Documents Reviewed

This investigation was an independent inquiry

on behalf of a private entity. As a

result, I had no subpoena power or any other

method of compelling cooperation. I made a

number of requests for the production of documen

ts from the Commissioner’s Office and each of

the thirty clubs. I received over 115,000 pages of documents from the Commissioner’s Office

and the thirty clubs. I also received over 20,000

electronic records retrie

ved from the computer

B-4

systems of the Commissioner’s Office and some of

the clubs. Each of the

thirty clubs certified

that it had provided all responsive non-

privileged documents that I requested.

I also requested the Players Associ

ation to provide documents based on

essentially identical requests. It declined to do so.

I also obtained documents from a variety

of third parties and from public sources.

Interviews

We interviewed more than 700 witnesses

in the United States, Canada, and the

Dominican Republic.

The Commissioner required the clubs

to make their non-playing personnel

available for interviews, and the clubs complie

d. In all, we conducte

d interviews of over

550 individuals who are current or

former club officials, managers or coaches, team physicians,

athletic trainers, or re

sident security agents.

We also interviewed 16 persons from

the Commissioner’s Office, including

Commissioner Selig, president and

chief operating officer Robert

DuPuy, senior vice president

for security and facility management Kevin

Hallinan and executive vice president for labor

relations Robert D. Manfred, Jr., who was interviewed formally on three separate occasions.

During the investigation, we also had some m

eetings and telephone calls

with Rob Manfred, Bob

DuPuy, and on a few occasions with Commissioner Se

lig that, while not formal interviews, often

included some discussion of the relevant issues.

Under the Basic Agreement, any request for an interview with a current player

must be made through his representative, the Players Association.

584

Through the Players

584

See

2006 Basic Agreement, Art. XII(E).

B-5

Association, I asked to interview more than 50 pl

ayers who were at the time on the 40-man roster

of a major league club. Almost

without exception, thos

e players declined

to meet with me.

In addition, I prepared a memorandum to a

ll current players that was distributed

to them at my request by the Commissioner’s Office.

In it, I invited any player to speak with me

who had relevant information or who otherwise wa

nted to do so. The Players Association also

prepared a memorandum that was distributed to

players at the same tim

e. Copies of both

memoranda are included at the end of this Appe

ndix. No player responded to my memorandum.

We spoke with a number of former players, some of whom were forthcoming

about the prevalence of performance enhancing s

ubstances in Major League Baseball, and also

about their own use. We attempted to c

ontact almost 500 former players and conducted

substantive interviews of over 70 of them.

585

I asked to interview Donald Fehr, th

e executive director of the Players

Association, and Gene Orza, its chief operating

officer. Mr. Fehr agreed to an interview;

Mr. Orza did not.

We also received significant cooperati

on from individuals who are no longer

employed in Major League Baseball, including ex

ecutives, managers, coache

s, athletic trainers,

doctors, and clubhouse personnel. We interviewed over 100 former club employees and other

individuals with re

levant knowledge.

We interviewed or consulted with many others whose views and information were

very helpful, including: form

er Commissioners of Baseball Peter V. Ueberroth and Francis T.

(“Fay”) Vincent; numerous law enforcement and othe

r officials; experts fr

om the United States

585

Former players are not members of the

bargaining unit, but even though I was not

required to do so I nevertheless agreed to provide

the Players Association

with advance notice of

my intent to request an interview with any form

er player for whom I had received allegations of

his illegal use of performan

ce enhancing substances.

B-6

Anti-Doping Agency, the World Anti-Doping Agen

cy and the Australian Sports Anti-Doping

Authority; John Dowd, who conducte

d the Pete Rose investigation; Don Hooton, chairman of

The Taylor Hooton Foundation; Dr

. Gary Green; Dr. Jay Hoffman; Frank Thomas of the Toronto

Blue Jays; and many others.

Many persons declined our requests for

an interview, including many former

players who are alleged to have used banne

d substances; central figures in the BALCO

investigation; and, as noted earlier, over fifty current players from whom

we sought interviews.

The persons we did interview were not under oath.

Although I was not able to obtain every

relevant fact, I

did receive enough

information to be able to describe the history a

nd current status of the illegal use of performance

enhancing substances in

Major League Baseball.

B-7

To:

ALL MAJOR LEAGUE BA

SEBALL PLAYERS

From:

Senator George J. Mitchell

Date:

September 6, 2007

Subject:

Independent Investigation of Perf

ormance Enhancing Substance Use

I have been retained by the Commissioner

of Baseball to conduct an independent

investigation into the alleged il

legal use of performance enhanci

ng substances in Major League

Baseball. I have pledged to conduct an investigation and to comple

te a report that is

independent, thorough, and fair. I believe it’s

in your interest to help me achieve those

objectives.

The illegal use of performance enhancing s

ubstances is a serious violation of the

rules of Major League Baseball which directly

affects the integrity of the game. The

principal victims are the majority of

players who don’t use such substances.

That reality is too often overl

ooked in discussions about ster

oids. Much has been said

and written about the adverse eff

ect on the integrity of the game

, on the fans, and on the general

public. All are important. But those who are mo

st harmed, those whose careers and livelihoods

are put at risk, are the players who don’t use such

substances. They rely on

their talent, skill, and

hard work, as should all players. And a younger

generation of aspiring ma

jor league players is

affected as well, as young players may be led to

believe that, even thou

gh Baseball currently has

a tough drug policy, they cannot

succeed without violating that policy and the law.

No one has a stronger interest

in dealing with this

issue than major league players.

Accordingly, I am inviting all current Major Lea

gue Baseball players who believe they may have

relevant information, or who for any reason wish to

speak to me or to a senior member of my

team, to contact me.

If you wish to provide information on a co

nfidential basis, I assure you that I will

fully honor your request for co

nfidentiality in my report.

As has been announced publicly, Kirk Rado

mski has agreed to cooperate with my

investigation at the direction of the United States

Attorneys Office for the

Northern District of

California (“USAO”). Under our

agreement with the USAO, neither I nor my staff are required

to supply any information to that Office. Th

e USAO has not made any request that we supply

them with information nor do we anticipate receiv

ing any such request. I

previously served as a

United States Attorney and can confirm from dir

ect personal experience that the USAO has at its

disposal a vast array of investig

ative tools – subpoena power, sear

ch warrants, the use of agents

from several federal agencies, to name just a fe

w – which eliminate any need on their part for

my assistance.

B-8

So any allegation that the USAO is using me

or my investigation to do their work for

them, or to obtain information from me, is simply untrue.

The Players Association understandably has

expressed concern about possible criminal

prosecutions of players for the illeg

al use of steroids. As you evaluate that concern please keep

in mind that through the 2006 season 221 professi

onal baseball players (14 major leaguers and

207 minor leaguers) have been susp

ended after testing positive for

steroids or other performance

enhancing substances, including stimu

lants, but not one of them was

ever convicted in a criminal

prosecution. I asked the Players Association an

d the Commissioner’s office to provide me with

the name of any player who has been prosecute

d and convicted for the illegal use or possession

of steroids. Both said that they are not aw

are of that ever happening. This is because

prosecuting authorities generally fo

llow practices like those of th

e U.S. Department of Justice

which pursues prosecution of the

manufacturers and distributors

of such substances, not the

athletes who use them.

You or your representative may reach me at

212-XXX-XXXX or Charlie Scheeler of my

staff (XXX-XXX-XXXX or [email address]) and we

will arrange a meeting at a time and place

convenient for you. Of course, if you choose to

so volunteer, you will have the right to bring

representatives to the

meeting, including your personal counse

l and/or a representative of the

Major League Baseball Player

s Association. Under the Basic Agreement, the Players

Association also has the right

to receive prior notice of any in

terview that we conduct with a

major league player.

B-9

AJOR

EAGUE

ASEBALL

LAYERS

SSOCIATION

MAJOR LEAGUE BASEBALL

MEMORANDUM

To:

All Players

From:

Donald Fehr & Michael Weiner

Date:

6 September 2007

Re:

Mitchell Investigation

***************************************************

As you know, in early 2006, shortly after the players had agreed to the new Joint Drug

Agreement, Commissioner Selig hired former Senator George Mitchell and his law firm (DLA

Piper) to conduct an investigation into the use of steroids and other illegal performance-

enhancing drugs in baseball. We write today rega

rding a memo Senator Mitchell is sending to all

players, in which he encourages player

s to meet with his investigative team.

Any player who wishes to speak to Senator Mitchell in response to this request has the

right to do so. Any such player has the right to be represented by the MLBPA and his own

lawyer in arranging any such meeting and during the meeting itself. Given the serious legal

issues which may be involved here, both inside and outside of baseball, we strongly encourage

you to seek the advice of MLBPA counsel and a

qualified private atto

rney before proceeding.

Commissioner Selig has not ruled out disciplining (suspending and/or fining) players as a

result of information gathered by the Mitchell investigation. Therefore, you should be aware that

any information provided could lead to discipline of you and/or others. (Any discipline imposed

could be challenged by grievance.) Remember also

that there are a number of ongoing federal and

state criminal investigations in this area, and any information gathered by Senator Mitchell in

player interviews is not legally privileged. What this means is that while Senator Mitchell

pledges in his memo that he will honor any player request for confidentiality in his report,

does not pledge, because he cannot pledge, that a

ny information you provide will actually remain

confidential and not be disclosed without your consent. For example, Senator Mitchell cannot

B-10

promise that information you disclose will not be given to a federal or state prosecutor, a

Congressional committee, or even turned over in a private lawsuit in response to a request or a

subpoena (a legally enforceable order).

Senator Mitchell points out that no player has yet been prosecuted for illegal use of

steroids and that prosecutors "generally follow practices" of pursuing manufacturers and

distributors, not users. Be aware,

though, that a federal prosecutor re

cently stated in court that the

nationwide federal criminal investigation of steroids in sports is ongoing and clearly indicated

that the investigation could lead to pr

osecution of individual

athletes for use.

Senator Mitchell mentions his agreement with the United States Attorney's office in

California (USAO), and states that his agreemen

t with the USAO does not require him to provide

information to the prosecutor. (Senator Mitchell has refused to provide us with a copy of this

agreement, which we asked for so that we can understand the relationship of his investigation to

the US Attorney's Office.) But Senator Mitchell does not promise, because, again, he cannot

promise, that he will not disclose the information to the USAO (or another prosecutor,

Congressional committee, or other governmental entity) in response to a request or subpoena.

Finally, as you know, the owners and the players have bargained long and hard over the

subject of performance-enhancing drugs several times over the past five years. The positions

adopted by the union in those talks reflect a consensus among all players after numerous

meetings, discussions and conference calls. Any comments made to Senator Mitchell --

Commissioner Selig's lawyer -- by an individual player regarding the operation of the Program

might well be used by the owners in

future bargaining with the union.

It is in light of these considerations that we recommend that you first consult with

MLBPA counsel and your own private counsel

before responding to

Senator Mitchell.

If you have any questions, please call Michael or another MLBPA lawyer at XXX-XXX-

XXXX.

End Memorandum

C-1

Appendix C

Media Articles Before August 1998

Mike Downey, Are these Guys Sluggers, or Just Lucky Swingers

L.A. Times, July 1, 1987, at Sports 1.

Neil Hohlfeld,

Glance at Mets Impressed Lanier

Hous. Chron.

May 8, 1988, at 12.

Jeff Gordon,

Officials Laud Johnson’s Ouster Move May Aid Sports’ Fight vs. Drug Use,

St. Louis Post-Dispatch, Sept. 28, 1988, at D7.

Dennis Brackin,

Big Buildup Canseco Denies Charge He Used Steroids

Minneapolis St. Paul Star-T

ribune, Sept. 30, 1988, at C1.

Bud Geracie,

Major Leagues Plan No Probe of Canseco Over Steroid Charge

San Jose Mercury News, Sept. 30, 1988, at E8.

Susan Fornoff,

Canseco Denies Use of Steroids,

A’s Slugger May Take Action Against

Columnist

Sacramento Bee, Sept. 30, 1988, at C3.

Ken Rodriguez and Jorge Ortiz,

Canseco Denies Using Steroids

Miami Herald, Sept. 30, 1988, at D1.

Annette John-Hall,

Canseco Stops Talking on Steroid Issue

San Jose Mercury News, Oct. 1, 1988, at E9.

Report That He Used Steroids

Denied by Athletics’ Canseco

St. Louis Post-Dispatch, Oct. 1, 1988, at C3.

Bill Sullivan,

Baseball Playoffs ‘88 Canseco Pu

ts Steroid Taunts in Fans’ Face

Hous. Chron., Oct. 6, 1988, at Sports 8.

Peter Gammons,

Socking it to the Red Sox, With an All-Ar

ound Performance Worthy of the A's of

the 1970s, Oakland Beat Boston for

the Pennant in Four Straight

, Sports Illustrated,

Oct. 17, 1988, at 34.

Michael Janofsky with Peter Alfano,

Steroids in Sports – Last of

Five Articles. Victory at Any

Cost: Drug Pressure Growing

, N.Y. Times, Nov. 21, 1988, at A1.

David Bush,

Steroids Found on Canseco’s Friend

Incident at Detroit Airport

S.F. Chron., Mar. 22, 1989, at D19.

John Castine,

Friend Says He Pleaded Guilty to Protect A’s Canseco

New Orleans Times Picayune, Mar. 22, 1989, at C10.

C-2

C.W. Nevius,

Thank You, Ben Johnson

S.F. Chron., Mar. 24, 1989, at D1.

Rich Lorenz (compiled from wire reports),

1989 Spring Training Report, National League

Chicago Tribune, Mar. 31, 1989, at Sports 5.

Tracy Ringolsby,

This Fan Happens to Be Boss – Giamatti Will Bring a Fresh Perspective

L.A. Daily News, Apr. 2, 1989, at Sports 14.

Phil Hersh,

In End, Rose Not Bigger than Baseball

Chicago Tribune, Aug. 25, 1989, at 1.

Ray Ratto,

Opponents Sense Giants Out-of-Kilter Rose

n, Craig Suddenly Have Been Forced to

Patch Roster with Bodies from the

Waiver Wire National League Notebook, S.F. Chron.,

Apr. 17, 1990, at D3.

Dan Bostrom,

Dykstra's 4-For-4 Leads Phils to Win Over Cards

The Morning Call (Allentown, PA), Apr. 16, 1990, at C1.

Rick Hummel,

Cox Hopes to Be Back in Month…Says 25 Starts Are Possible This Season

St. Louis Post-Dispatch, Apr. 16, 1990, at C4.

Stan Hochman,

Thomas: Blame Union, Not Phils

Phil. Daily News, Mar. 16, 1991, at 45.

Bob Hertzel,

Bell Unselfish, and It Cost Him

Pittsburgh Post-Gazette, Feb. 23, 1992, at C6.

Gene Collier,

Baseball’s Field May Not Be Level

Pittsburgh Post-Gazette, Mar. 22, 1992, at C1.

Peter Gammons,

They’ve Met Disappointment

Boston Globe, Aug. 16, 1992, at Sports 4.

David Cunningham,

More Than a Few Make Much Ado Over Voodoo

Long Breach Press – Telegram, June 28, 1993, at E3.

David Cunningham,

Biggest Strike May Be Called in Pennant Stretch

Long Breach Press – Telegram, Aug. 2, 1993, at D3.

Ross Newhan,

In Your Face If Not Your Hair

L.A. Times, Mar. 20, 1994, at Sports 3.

Bob Nightengale,

Herzog Says Corked Bats Are Common

St. Louis Post-Dispatch, July 24, 1994, at F7.

Bill Conlin,

Harness Card Beats the Rain

Sacramento Bee, June 18, 1995, at C2.

C-3

Bob Nightengale,

Baseball Still Doesn’t Get It

Palm Beach Post, July 2, 1995, at C13.

Mike Barnicle,

Stop Whining; This Is The Year

Boston Globe, July 4, 1995, at Metro 13.

Bob Nightengale,

Steroids Become an Issue

;

Baseball

Many Fear Performance-Enhancing

Drugs Is Becoming Prevalent and

Believe Something Must Be Done

L.A. Times, July 15, 1995, at C1.

Bob Nightengale,

Steroids in Baseball? Say It Ain’t So, Bud

Sporting News, July 24, 1995, at 16.

Mark Kriegel,

On the Mark

, N.Y. Daily News, July 23, 1995, at 46.

Will McDonough,

Earth to Iafrate: Come in, Please,

Boston Globe, Sept. 9, 1995, at 21.

Bob Klapisch,

Yanks Look to Boggs to Fill Clubhouse Void

New Jersey Record, Mar. 24, 1996, at Sports 6.

Ross Newman, Pitchers Hit the Showers in April

L.A. Times, May 5, 1996, at Sports 10.

Peter Gammons,

Throwing Caution

, Boston Globe, May 12, 1996 at 52.

Steve Marantz,

Addiction By Distraction

, Sporting News, May 27, 1996, at 10.

Ken Rosenthal,

Belle-Anderson HR Pursuit Study in Crushing Contrasts

Balt. Sun, May 31, 1996, at Sports 1.

Mark Kreider,

Whatever Happened to the Inside Strike?

Sacramento Bee, June 2, 1996, at C1.

Ron Cook,

Slam Dance

, Pittsburgh Post-Gazette, June 9, 1996, at D3.

John Harper,

Broken-Down Nails Near End?,

N.Y. Daily News June 21, 1996, at 96.

Alan Truex,

Reds Can Set an Example

Hous. Chron., June 23, 1996, at Sports 10.

Jack O’Connell,

Leave It to Gooden to Embellish Things

Hartford Courant, June 23, 1996, at E10.

Will McDonough,

Boston Clubs No Bargain

Boston Globe, July 13, 1996, at 23.

C-4

Bob Ryan,

Baseball ’96 Full of Big Shots

Boston Globe, Aug. 22, 1996, at D1.

Mark Kriegel,

On the Mark Being Green Sure Ain’t Easy

N.Y. Daily News, Aug. 23, 1996, at 75.

Frank Fitzpatrick, Ghosts of Maris Fail to Haunt McGwir

e “I Don’t Concern

Myself With What-

Ifs,” the Mellow 6-Foot-5 Athletic Says,

Philadelphia Inquirer, Aug. 25, 1996, at C2.

Jerry Crasnick,

Power Surge Electrified Fans, Shocked Pitchers

Denver Post, Sept. 29, 1996, at C16.

Scott Olster,

Alderson Should Be the Commish

S.F. Chron., Oct. 4, 1996, at D1.

Bob Nightengale,

Bonds and Belle Will Cash in on Being Bad Boys

Sporting News, Nov. 11, 1996, at 35.

Barry Johnson,

Baseball’s Past Is Still a Good Fit

The Oregonian, Dec. 23, 1996, at C1.

Bob Nightengale,

Commentary Belle is the Victim Now, and You Can Bet on It

L.A. Times, Feb. 23, 1997, at Sports 1.

Bob Nightengale,

Baseball Daily Report Dodgers

L.A. Times, Feb. 26, 1997, at Sports 5.

Bob Nightengale,

Pride, Talent Lacking Baseball Comebacks Are Troubling Trend

Contra Costa Times, Feb. 28, 1997, at D6.

Rick Hummel,

New Heart Surpasses Series Dingers

St. Louis Post-Dispatch, Mar. 2, 1997, at F8.

Peter Gammons,

Birds Have Feathered Their Nest

Boston Globe, Mar. 2, 1997, at C8.

Bob Molinaro,

Steroid Alert: Some Might

Be Corking Their Biceps

Virginia Plot and Ledger-

Star, Mar. 7, 1997, at C1.

Dan O’Neill,

Eye Openers

, St. Louis Post-Dispatch, Mar. 8, 1997, at Sports 5.

Alan Truex,

Despite His Form, Galante F

it Role of Manager to a T

Hous. Chron., Mar. 9, 1997, at Sports 9.

Bob Nightengale,

Baseball Is One Industry Badly in Need of a CEO

Sporting News, Mar. 24, 1997, at 22.

John Steigerwald, Lemieux’s Way Out, Mario Just Got Ti

red of Waiting for NHL to Open Up

Game

, Pittsburgh Post-Gazette, Mar. 29, 1997, at C3.

C-5

Michael Bamberger and Don Yaeger,

Over the Edge Aware that Drug Testing Is a Sham,

Athletes to Rely More Than Ever on Banned Performance Enhancers

Sports Illustrated, Apr. 14, 1997, at 60.

Ted Silary,

Lieberthal Grows into His Strong Start

Phil. Daily News, May 2, 1997, at 114.

Jim Reeves,

Sierra Added Muscle, Lost Great Career

Fort Worth Star – Telegram, May 8, 1997, at Sports 1.

Ross Newhan,

The Best Star of Stars, L.A. Times, July 8, 1997, at Sports 1.

Jerry Crasnick,

Get a Load of This! Baseball Players ar

e Taking a Powder – Creatine, Which is

Becoming as Much a Part of Strength Tr

aining as Barbells and Free Weights

Denver Post, July 28, 1997, at D1.

Tracy Ringolsby with Jim Bowden and Alan Meersand,

Drug Policy Skirts the Issue, Should

Baseball Test for Steroids?

Denver Rocky Mountain News, Aug. 28, 1997, at C10.

Ian Thompson, He’d Raise a Bunion on Their Squash Onion Vantage Point

Int’l Herald Tribune, Se

pt. 13, 1997, at Sports 20

Debbie Arrington,

Muscles Built through the Lab; Body

building: Pros Spend Thousands on

Steroids, but Sport Hopes to Begin Testing

, Long Beach Press-Telegram, Sept. 16, 1997,

at D7.

Dwight James,

Slaney Never Will Be Free of Suspicion,

The Oregonian, Sept. 17, 1997, at D1.

Mark Shields,

Babe Ruth Proved Why Darw

in Was Wrong about Baseball

Mobile Register, Oct. 6, 1997, at A6.

Randy Harvey,

The Inside Track, Richmond Would Provide More Than Just Scoring

L.A. Times, Nov. 4, 1997, at 2.

Peter Gammons,

Time for Owners to Show Resolve, Boston Globe, Jan. 4, 1998, at F9.

Tom Verducci,

Mark McGwire the Most Powerful

Slugger in Baseball Talks about Sending 61,

Changing Leagues, Helping Children, and Hitting His Prime

, Sports Illustrated, Mar. 11,

1998, at 18.

Tom Keegan,

Bombers Turn into Men of Steel

, N.Y. Post, Apr. 12, 1998, at 93.

Bill Chastain, Welcome to the Big Leagues

, Tampa Tribune, Apr. 29, 1998, at 1.

Todd Jones,

Using Drugs Same as Deal with Devil

Birmingham News, May 31, 1998, at Sports 11.

C-6

Mike Lefkow,

Whether McGwire Likes It or Not, the Ba

seball World Can’t Take Its Eyes Off His

Mammoth Blasts as He Pursues a Hallowed Record, Contra Costa Times, June 28, 2998,

at B1.

Patrick Reusse,

Juan Gonzalez’s 101 RBI Have Put Him on Pace to Break Hack Wilson’s 68-

Year-Old Record and Have Made Him the Talk of the All-Star Game

Minneapolis St. Paul Star Tribune, July 7, 1998, at C1.

Joel Stein,

The Fun Is Back

, Time, July 27, 1998, at 40.

Alan Truex,

The Creatine Craze / Steroids Mortgage Future for Muscles

Glory

Hous. Chron., Aug. 11, 1998, at A1.

Steve Wilstein,

Sports Spotlight: Home-Run Derby / ROGER THAT / Legendary Season Grows

with Every Prodigious Clout

, Hous. Chron., Aug. 16, 1998, at Sports 1.

D-1

Appendix D

Documents Relating to Transacti

ons Described in Chapter VIII

The documents set forth in this Appendix re

late to the transactions described in

Chapter VIII of this report, “Information Obtain

ed Regarding Other Players’ Possession or Use

of Steroids and Human Growth

Hormone.” We have redacted

the copies of checks and money

orders that are reproduced here to remove

spouses’ names, account numbers, addresses, and

other non-relevant information.

D-2

D-3

D-4

D-5

D-6

D-7

D-8

D-9

D-10

D-11

D-12

D-13

D-14

D-15

D-16

D-17

D-18

D-19

D-20

D-21

D-22

D-23

D-24

D-25

D-26

D-27

D-28

D-29

D-30

D-31

D-32