Today, the Hall of Fame will announce its new inductees. Once again, Mark McGwire will not be welcomed into the club. Personally, I think it’s wrong. McGwire is being singled out for his potential use of performance-enhancing drugs, despite the fact that even if someone could prove that he used something besides andro—andro was clearly legal at the time, and has not been shown to have any ergogenic benefits—whatever it was would not have been against baseball rules. While some may argue that baseball has expressly forbidden the use of illegal drugs since the 1970s, it lacks the power to make such a pronouncement unilaterally. Not until after the players association and the owners agreed to the Joint Drug Treatment Program in 2002—after McGwire had left the game—were performance-enhancers expressly prohibited from the game.
In professional sports, however, athletes are employees of their clubs and are represented for collective bargaining purposes by unions. The clubs must therefore bargain over terms and conditions of employment, including and drug policies for, and drug testing of, athletes.
This is Bud Selig (Commissioner) and Robert Manfred (Executive VP, Labor Relations and Human Resources) in the Stanford Law and Policy Review (2004). You can find this quote on pages 258 and 259 of the Mitchell Report. Also, the history of arbitrator rulings on MLB’s drug policies make it clear that the league’s unilateral mandates are not binding.
It is also not clear that McGwire used anything. We only have the testimony of Conseco and the fact that he hit a lot of home runs. As I am quoted in the National Post today, I don’t think this is enough to convict him of steroid use. I do wish that he had spoken in his testimony before Congress, but I can understand why he would remain silent. It’s an all-or-nothing choice. Once you agree to testify, you cannot pick and chose what you want to reveal.
It looks as though McGwire will get enough votes to remain on the ballot for a while, and I hope that eventually the writers will get over their moral indignation and put him in the Hall. However, I won’t be surprised if McGwire declines his invitation.