Rep. Waxman, Please Do Something Productive

Representative Henry Waxman is upset about Bud Selig’s Congressional testimony that positive steroid tests declined from five percent in 2003 to one percent in 2004.

But the accuracy of the picture provided by Commissioner Bud Selig, his deputy Rob Manfred and the players union’s executive director, Donald Fehr, about how the testing was conducted has come into question. The committee’s chairman, Henry A. Waxman, Democrat of California, has said he is troubled, and the committee’s staff is planning to send letters to Selig and Fehr seeking answers to what Waxman has called “misinformation.”

At the heart of the issue is the fact that the committee was not told that the 2004 testing, with its significantly lower positive test results, had been partly shut down for much of that season, what Selig’s office later called an emergency response to an unforeseen situation. Specifically, the shutdown arose from the federal investigation of the Bay Area Laboratory Co-operative steroid ring.

As a result, players who apparently tested positive in 2003 were not retested in 2004 until the final weeks of the season, and might have been notified beforehand, perhaps skewing the overall test numbers for that year.

“It’s clear that some of the information Major League Baseball and the players union gave the committee in 2005 was inaccurate,” Waxman said in a written statement. “It isn’t clear whether this was intentional or just reflects confusion over the testing program for 2003 and 2004. In any case, the misinformation is unacceptable.”

First, there is nothing “inaccurate” about this claim. It could have been misleading, in that the lower positive-test rate had a cause other than decreased steroid use, but baseball appears to have presented correct numbers.

Second, is this news to Waxman? The shutting down of testing in 2004 is such common knowledge that I cannot even recall where I learned of it many months ago. I believe it was included in the Mitchell Report.

UPDATE: Here is the relevant text from the Mitchell Report (pp. 281–282).

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 investigation. In the course 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 Association initiated discussions with the Commissioner’s Office regarding a possible suspension of drug testing while the federal investigation proceeded. Manfred said 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 Commissioner’s Office and the Players Association agreed to a moratorium on 2004 drug testing. While the exact date and length of this moratorium is uncertain, and the relevant 2004 testing records have been destroyed, Manfred stated that the moratorium commenced very early in the season, prior to the testing of any significant number of players. Manfred stated that the Players Association was not authorized 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 federal agents believed had tested positive during 2003 survey testing, however, 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 information was now in the hands of the government; (2) the testing moratorium would continue with respect to those players until the Players Association had an opportunity to notify them; and (3) the Players Association 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 having 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.

The problem is that the owners and players agreed to suspend testing for a portion of the 2004 season after the I.R.S. seized previous test results that were supposed to be anonymous. It was the seizure by a government organization that impeded the testing, not MLB or MPBPA.

But, what really annoys me, is that if Waxman really cared about getting steroids out of baseball, he would have used his powers to suppress the seized evidence. Baseball entered into its drug testing program with good intentions, despite the fact there are incentives for individual players and owners to skirt the system. It took major concessions for both sides to begin testing, and anonymity of the early tests was important. Th raid threw all of that good will out the window, and players were once again suspicious of what would happen to the personal health information contained in the blood samples.

Instead, of blaming baseball, Rep. Waxman should have helped baseball negate these seizures, so that all the parties involved could have used their resources to protect player confidentiality while trying to rid the sport of doping. That is to goal of all of this, isn’t it?

2 Responses “Rep. Waxman, Please Do Something Productive”

  1. Freddie Hayek says:

    JC, I don’t know about you, but I actually prefer for Congressmen to waste their time bickering with Bud Selig. This prevents them (at least temporarily) from passing legislation and over-regulating the heck out of ordinary Americans’ lives.

    Scandals are probably a good thing for our country if they can keep Congress occupied enough to prevent the government from sticking its nose into truly important matters.

  2. Ken Houghton says:

    What’s your evidence that the Commissioner’s Office (or the MLBPA) asked for help from the Committee (which, at the time, would have been run by a Republican, not Congressman Waxman)??

    We don’t expect our Congressmen to be mind-readers. And it seems clear from the testimony presented that the Commissioner’s Office wasn’t interested in help.

    (The Mitchell Report was released in December of last year, and wasn’t started until ca. April 2006. Again, long after the committee met, and after Commissioner Selig had ample time to correct any misconceptions [let us, against all evidence, make a polite assumption about the Commissioner's intent] and seek help with the investigation.)