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Friday, July 14, 2006
 
Open Letter to Bud Selig

Dear Mr. Selig:

I understand that you are disappointed and angered by Jason Grimsley’s recent admission that he used the human growth hormone (HGH) and by his statements that other major leaguers use the banned substance. Last month in your “open letter to fans” you said that you will not tolerate the use of HGH and other performance-enhancing drugs in baseball.

It is time to get aggressive with the union, more so than you have ever been before. On the eve of negotiations over a new collective bargaining agreement, and with the fans 100% on your side in "the war on steroids," the timing could not be better. Major League Baseball should not waste its time and money on research to determine how to detect HGH, because while it is doing that, somebody else will be developing the next masking agent or magic "whizzer" apparatus to prevent MLB’s new testing methodology from detecting the HGH. By the time your new test is ultimately developed, players will be experimenting with gene therapy and the replacement of human tendons with animal tendons.

So how do you fix the problem? Suspensions and fines for positive drug tests are not the answer because (with a few limited exceptions) players are not testing positive! In your open letter, you alluded to the powerful investigative efforts of the FBI and that players are no different from anyone else in our society. Maybe you could consider how the FBI catches people who lie and cheat -- they use lie detector tests. For example, the FBI is now administering polygraph tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks. As one particular FBI director noted, "There is no more powerful tool in our tool bag than lie-detector tests."

Now, I know what you are thinking: Drug testing and discipline is clearly a "mandatory" subject as defined in the National Labor Relations Act (i.e. “wages, hours and conditions of employment”) that requires you to negotiate with the union because it pertains to conditions of employment. So how do you get the union to agree to polygraph testing with respect to performance-enhancing substances (including gene therapies, surgeries, etc.)?

Here’s how. We all know the first question that union head Don Fehr is going to ask you at the bargaining table in a few months: “What’s your proposal on revenue sharing?” You should take the position that revenue sharing is an issue that only concerns the teams and is not a mandatory subject that you are required to negotiate with the union because it does not relate to players’ wages. Mr. Fehr will respond that revenue sharing impacts wages because if large market teams must pay a certain percentage of their revenue to small market teams, it constitutes an expense that impacts a team’s bottom line and the amount it is able or willing to spend on payroll. Of course, so does a team’s stadium lease expense and the amount it charges customers for tickets, hotdogs and beer, but those are not mandatory subjects. For example, if General Motors enters a joint venture with a competitor agreeing to share a percentage of revenue, it obviously impacts GM’s bottom line and indirectly impacts how much it pays its workforce, but it is not a mandatory subject that needs to be negotiated with the union. Simply tell Mr. Fehr that you will negotiate revenue sharing if the players agree to periodically take lie detector tests regarding their use of performance-enhancing substances, surgeries, therapies and the like.

Now when he jumps up and down and screams at you such phrases like “decertification,” “strike” and “unfair labor charge,” stick to your guns. Because even if you have to spend legal fees to validate your position in front of the NLRB or in a court of law, the legal fees will be much cheaper than funding research to detect HGH and, more importantly, much more effective in catching cheaters!

Sincerely,

Rick Karcher





28 Comments:

Rick:

Do the players have to agree to be tested?

What about probable cause?

How accurate are polygraph tests?

Who will see the "results"?

Will "participants" be able to "work the system" to pass the test?

What about another "solution" for discussion? Allow the use of performance enhancing substances (PES) under the prescriptive order of a medical doctor?

This would eliminate the underground that has undoubtly developed, progress in technical advances and other issues that come up when trying to restrict a desirable substance.

This is starting to look like the "war on drugs" in this country!!!

Anonymous Richard Mock -- 7/14/2006 10:59 AM  


Richard:

Yes, the players have to agree because it's a mandatory subject (working condition).

Probable cause not necessary if players agree with the owners to be tested without probable cause.

Polygraph tests are actually pretty accurate, and there are ways to ensure more accuracy (i.e. follow up tests).

MLB and MLBPA would see the results.

Not sure how players would be able to "work the system here". It's much easier to work the current system through masking agents and by having somebody else pee in a cup.

We're not talking about players who are under prescriptive order of a medical doctor, which the union and owners could agree would be an exception.

I'm not following your "underground" comment or how this would eliminate "progress in technical advances and other issues in trying to restrict desirable substances".

Blogger Rick Karcher -- 7/14/2006 11:50 AM  


My understanding of polygraph tests is that they are an effective law enforcement tool, particularly an investigative tool, not because of their inherent accuracy - they are about as accurate as flipping a coin or the medieval investigative tool of binding someone up, throwing them in a pool of water and seeing if they float - but because of the pubic perception of their accuracy. When confronted with a polygraph test or the results of a test, subjects have a great tendency to confess or otherwise provide useful information. Thus, the police, FBI, etc. love the polygraph, even though scientists have consistently disproved their accuracy (and even though it is my understanding the polygraph is not in widespread use outside the United States). There was a great article on the polygraph and its history, use and accuracy a few years ago in, I believe, The Atlantic. I'll see if I can find a link.

I find the whole area of both performance enhancing drugs and procedures and truth detecting procedures fascinating, as we are on the cusp of medical advances (genetic, drug, brain scanning and understanding) that will advance both areas and implicate all sorts of privacy, liberty/choice and other issues.

Anonymous Larry Kroger -- 7/14/2006 12:01 PM  


ooops, that's "public perception" in my comment

Anonymous larry kroger -- 7/14/2006 12:03 PM  


I guess you're unaware that MLB's drug-testing provisions don't terminate until the end of the CBA succeeding the current CBA.

I guess you're also unaware that MLB would never risk tens of millions of dollars by making something as ridiculous as polygraph testing a strike issue.

And, yes, it's already been long established that revenue sharing is a mandatory subject of bargaining.

Other than that, great thinking...

Anonymous Anonymous -- 7/14/2006 12:14 PM  


performance-enhancing drugs

Where exactly is the line drawn on what is and what is not a performance-enhancing drug? The HGH is obvious, but what exactly can MLBers do?

Should Bud go for the Olympic standards, stricter, or looser?

The huge salaries are going to continue driving guys to get the edge one way or another. It may be in the red contacts, bats made from specially grown trees, or whatever we can't even think of. I don't see it ever ending as long as the huge contracts are out there.

Anonymous cj -- 7/14/2006 12:21 PM  


Anonymous,

Out of curiosity, how have you come to the conclusion that Revenue Sharing is a Madatory Subject of Bargaining? Is there a precedent to which you could point?

Blogger The Author -- 7/14/2006 12:28 PM  


Revenue sharing will always be a subject. There was a report at the SABR (Society for American Baseball Research) at their convention in Seattle which addressed this which found there was a correlation between where a team finishes and its payroll among other things:

link: http://www.businessofbaseball.com/Brown%20Fox%20CBA%20presenation.ppt

Anonymous Ryguy -- 7/14/2006 12:41 PM  


I believe that Larry is correct. There is a tidal wave of advancements in genetics, drugs, and medical procedures coming in the next several decades that will dwarf the problems of steroids and HGH.

While the players association is not going to accept polygraph testing in the near future (though, since the polygraph can be easily beaten with just a small amount of coaching, it would be a great PR move that in reality would have little or no effect on catching "cheaters"), who's to say what they will need to agree to in the future in order to protect their share of the revenue stream.

The players and the owners are, after all, partners in the business of their sport. When mommy and daddy can select the genetic attributes of their upcoming child and then alter the physical development of the child as the child grows, well, maybe the public won't care. After all, this reduces the randomness of the current birth lottery in coming up with our outstanding athletes. On the other hand, you could imagine the public caring an awful lot. And if that caring and concern starts to impact a sport's overall revenues, is it really hard to imagine that the parties that share in those revenues might agree to rather extreme measures to protect their incomes, such as the next generation of lie detection (e.g., brain scanning and the like)?

Anonymous Senator Blutarski -- 7/14/2006 1:12 PM  


Anonymous,

If you're so certain about what you're saying and if you're going to make comments with a chip on your shoulder like that, have some guts and use your real name.

CJ,

Great point about where do you draw the line on this stuff. Tommy John surgeries that make a pitcher throw harder than he did before surgery, contacts and eye surgery that takes you beyond 20/20 vision, playing equipment enhancements....the list is endless.

Ryguy,

I appreciate your comment and the link you provided, but I'm not exactly sure how that means that revenue sharing is a mandatory subject. Maybe you could explain your position a little better.

Senator,

Those are good points, and time will tell how/if the steroid issue ends up affecting their revenue stream.

Blogger Rick Karcher -- 7/14/2006 1:54 PM  


Rick:

Thank you for your response.

If the players do not agree to polygraph testing this entire issue is moot.

I am not convinced that MLB will prevail in front of the NLRB or in court.

What is the link between testing and revenue sharing. If a teams players do not agree to testing will their team be denied revenue sharing money?

Will the "baseball" public and the "general" public be privy to the test results (provided there are tests)? If not, how credible will this entire enterprise be?

When desirable substances are restricted an underground will develop.

Progress in falsifying tests and other means to beat the system will always be ahead of the
bureaucracy in these matters.

Sorry about the confusion.

Anonymous Richard Mock -- 7/14/2006 1:57 PM  


Richard,

I'm not saying that there's a link between drug testing and revenue sharing. The point in my letter is that revenue sharing, arguably, is not a mandatory subject that must be negotiated with the union (and there is no precedent that revenue sharing is a mandatory subject). However, revenue sharing is a huge issue to the union and I'm simply making the point that MLB has some negotiating leverage if it REALLY wants to do something about the steroid issue (which is debatable in and of itself). My letter obviously is full of sarcasm and goes to an extreme, but hopefully it gets people thinking about some of these issues.

Blogger Rick Karcher -- 7/14/2006 2:14 PM  


While not directly on point, State of California v. Safeway, Inc., (C.D. Cal. 2005), offers some support for Prof. Karcher's assertion that revenue sharing is not a mandatory subject of bargaining. In Safeway, the district court held that a revenue sharing agreement among supermarkets that were members of a multiemployer bargaining unit was not a mandatory subject of collective bargaining. However, that revenue sharing agreement was designed to prevent whipsawing, not to improve the product offered by the supermarkets (or hold down salaries if you take the players' unions view).

see http://www.antitrustlawblog.com/article-supermarket-revenue-sharing-agreement-is-not-immune-from-antitrust-scrutiny.html

I'd be interested in precedent that supports Anonymous's claim if anyone's seen any.

Anonymous PK -- 7/14/2006 2:31 PM  


How about the government puts more emphasis on stopping steriods come into this country and make it harder for people, players included, to obtain steroids.
Testing is in place. Commissioners are not police or investigators in this matter. All they have to do is put a reasonable test in place. If our government has a problem allowing drugs in this country, well that is the issue they must tackle. Drugs are illegal, therefore doing what the government did with Jason Grimsley is a good step in the right direction.

Anonymous tommie -- 7/14/2006 8:27 PM  


Just a thought, though not directly related to this posting: Can anyone provide insight as to why the "sport" of professional bodybuilding on the men's and women's side is not exterminated due to obvious and rampant drug use involving HGH, steroids and any other chemical potion known to personkind? I have my opinions (its not a sport, not enough money involved, the public doesn't care about it) but I was wondering how others felt about this if possible...

Anonymous Anonymous -- 7/15/2006 9:05 AM  


Thank God you've posted a "just trying to get the conversation started" comment, Rich, because I was blown away by your "letter."

The War on Drugs has been an abject failure in EVERY SINGLE WAY YOU CAN MEASURE SUCCESS AND FAILURE. It has had a massively destructive effect on our country for going on four decades. It's time for men of reason, like yourself, to start realizing this, and begin advocating a lessening of the restrictions and punitive measures for drug use of any kind.

The hypocrisy of punishing a baseball player for using drugs while we sit and watch hundreds of "drug" commercials between innings is starting to hurt my head.

It is not a crime, nor is it an issue that matters one bit in my life or yours if Barry Bonds wants to inject himself with Martian brains. How could anyone ever come to the conclusion that it does?

Anonymous John J Perricone -- 7/15/2006 1:33 PM  


Tommie and John,

I don't disagree with what you guys are saying. I just look at it like a business issue and the union and owners need to assess the impact on their product and decide how best to deal with it. I don't believe drug testing and stiffer penalties is the answer because what good are stiffer penalties when the players are not testing positive? And technology is always going to be one step ahead of the curve, in everything. Really the main point of my letter is to tell the owners to quit letting the union walk all over them. I believe that revenue sharing is not a mandatory subject that the owners are required to negotiate. The owners just need to play a little "hardball".

Blogger Rick Karcher -- 7/15/2006 5:59 PM  


John:

Thank you for your comments.

To punish baseball players (athletes) for using substances is futile and hypocritical.

Just think of the lives ruined and money lost in the war on drugs. As a nation are we not able to deal with this issue on an intellectual rather than an emotional basis?

One other comment and I will get off my soap box. I just read some comments from a well know blog site and most of the "bloggers" indicated that Barry Bonds should be SUSPENDED if indicted. Being found innocent or guilty does not seem to matter.

I feel better now.

Anonymous Richard Mock -- 7/15/2006 8:51 PM  


Apparently, everyone has forgotten that such a proposed plan is ILLEGAL.

29 USCS § 2002

§ 2002. Prohibitions on lie detector use

Except as provided in sections 7 and 8 [29 USCS §§ 2006, 2007], it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce--

(1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test;

(2) to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee;

(3) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against--
(A) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or
(B) any employee or prospective employee on the basis of the results of any lie detector test; or

(4) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against, any employee or prospective employee because--
(A) such employee or prospective employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act [29 USCS §§ 2001 et seq.],
(B) such employee or prospective employee has testified or is about to testify in any such proceeding, or
(C) of the exercise by such employee or prospective employee, on behalf of such employee or another person, of any right afforded by this Act [29 USCS §§ 2001 et seq.].

Anonymous Geoff -- 7/16/2006 7:07 AM  


Geoff,

Thanks for the statutory cite. I'm assuming this statute was intended to cover compelled and nonconsensual lie detector tests. If the union consents to it as part of the collective bargaining process, why should it be prohibited?

Blogger Rick Karcher -- 7/16/2006 9:28 AM  


Rick,

For one, you can't reach a private agreement to nullify federal law. Especially note that the law prohibits even suggesting that an employee take the test.

But besides that, employers are forbidden from taking any action against an employee or treating them differently on the basis of a polygraph. This is true whether or not someone "volunteers" to take a polygraph. Even if you could convince a court that every player in baseball decided on their own and without suggestion from MLB to take a polygraph, MLB wouldn't be allowed to act on the ressults without violating the law.

Anonymous Geoff -- 7/16/2006 10:25 AM  


I understand what you are saying in the context of a situation where the employee volunteers to do it because he feels that, if he doesn't, then he's going to be fired simply for not taking the test. So in that situation it isn't truly voluntary. I think this is a completely different situation when, as a result of the collective bargaining process, the players agree to it at the outset and would be getting some benefit in return for subjecting themselves to lie detector tests for a very limited purpose. If they don't want to do it, then they obviously don't have to agree to it. And I don't see the policy reason why they shouldn't be able to agree to it (as may be the case in other situations in which we don't uphold agreements that violate the law). Why is agreeing to a lie detector test with respect to steroid use so much more egregious than agreeing to take a drug test? -- arguably the drug test is more intrusive from a privacy standpoint. So in my opinion, a court wouldn't be very sympathetic to the players here.

Blogger Rick Karcher -- 7/16/2006 10:49 AM  


Geoff,

FYI, the proviso at the beginning of the statute you cited (Section 2006) provides an exemption for private employers that, I think (you may disagree), seems to at least support my argument:

(d) Limited exemption for ongoing investigations

Subject to sections 2007 and 2009 of this title, this chapter shall not prohibit an employer from requesting an employee to submit to a polygraph test if--

(1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;

(2) the employee had access to the property that is the subject of the investigation;

(3) the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and

(4) the employer executes a statement, provided to the examinee before the test, that--

(A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees,

(B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer,

(C) is retained by the employer for at least 3 years, and

(D) contains at a minimum--

(i) an identification of the specific economic loss or injury to the business of the employer,

(ii) a statement indicating that the employee had access to the property that is the subject of the investigation, and

(iii) a statement describing the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation.

Blogger Rick Karcher -- 7/16/2006 11:17 AM  


I'm left dumbfounded by this thread. Why exactly does everything have to be so draconian? Identify performance enhancing "drugs," ban or regulate them, and employ punishments for those caught breaking the rules. There are always going to be people who push the limits and break the rules; there are always going to be absurdities with our war on drugs. Welcome to life.

As to the polygraph idea...has anyone here ever taken one? I have and it's unnerving, annoying, and not that reliable. The point of a polygraph is to make someone uncomfortable, pinch 'em, and this state of mind registers on the test with, say, increased blood pressure. It doesn't even mean that you're "lying," only that you're uncomfortable, you may be employing deception. If you live without an conscience or always lie or convince yourself that you didn't do something, the test won't necessarily demonstrate deception. And, yes, there are TONS of people who fit into this category. Example: I'm a baseball player and I go to my trainer. I tell my trainer to give me the works but to NOT tell me what the works are. I get the works and they have HGH in them. I later take a polygraph and am asked if I've ever taken HGH. I say no. The test may indicate that I'm uncomfortable with my answer (because I'm doubting myself), but not that I'm "lying." The polygraph examiner may ask me about this point later and I answer that to the best of my knowledge, "I've never taken HGH." The polygraph examiner presses me. I don't change my story. The exam goes nowhere.

The point of the polygraph examiner is to find those points of possible deception and to revisit them when the exam is over. The polygraph examiner then attempts to confront you with your own answer. (The answers by the way are "yes" and "no.") If you stick to your story, the exam really goes nowhere. The polygraph examiner will then produce a report showing that you were deceptive, etc. Big deal.

Man, people sure are willing to give away a hell of a lot to satisfy their personal sense of right and wrong and moral outrage. Very disconcerting, if you ask me.

By the way, what are "drugs"? Seriously, I'm not trying to be silly. What are they?

Kent

Anonymous Anonymous -- 7/16/2006 12:08 PM  


Kent,

Relax. It's o.k. The polygraph comment is loaded with sarcasm. I apologize if that wasn't clear enough to you and others.

Blogger Rick Karcher -- 7/16/2006 7:38 PM  


No it wasn't clear to my thick meathead. On occasion it's hard to tell on blogs what's sarcasm, what's irony, and what's not. For what it's worth, I began my comment with "dumbfounded" because a part of me couldn't quite believe what I was reading.

:) You seem so...sane...in your other writings, it should have been a clue, right? Right. Take care.

Kent

Anonymous Anonymous -- 7/16/2006 9:53 PM  


Kent,

I appreciate the "sanity" comment :) I'm actually one that questions whether there is even really an "unfair advantage" to players taking steroids. Even if steroids do in fact provide an advantage, I think that there are many other "acceptable things" that give players greater advantages, like tommy john surgery that increases velocity, playing equipment advancements, training equipment advancements, just to name a few. I think the fact that Barry is allowed to wear a shield (elbow armor) gives him a greater advantage at the plate than steroids. I read an article that discussed how the U.S. bobsled team hired a company that implemented the latest technology in manufacturing metal runners, which made the sled much faster and gave the team an extra advantage in feet! Maybe all of these things should be banned too!

Now, all of you about to reply with your statistics about the increase in home runs over the years or a quote from a medical expert, you need to factor in a huge variable that separates the home run hitters of the modern era from the free-swinging Cecil Fielders, Dave Kingmans, Rob Deers and Pete Incaviglias (sp?) of the past -- Plate Discipline. Bonds and McGwire have/had UNBELIEVABLE discipline at the plate (actually McGwire didn't use to have it, but somehow he developed it later on in life, ironically around the time he really started to increase his home run totals). Bonds always had a pretty good eye at the plate, but it definitely improved in his later years. McGwire had a dismal performance in his final season. Who can explain that? He was pretty big in his last year too, so apparently the (alleged use of) steroids didn't help him that year for some reason.

It used to be acceptable for home run hitters to have low batting averages and high strikeouts; walks were actually frowned upon by power hitters -- but that philosophy started to change around the early 90's. Could you imagine the number of home runs that Fielder and Kingman would have hit per season if they didn't strike out every other at bat? -- probably more than 73. The all-time home run leader had pretty good plate discipline too :)

Also, there's an argument that expansion over the years has lead to an increase in the number of pitchers in the league and a corresponding reduction in the overall quality of pitching in the league each year.

Blogger Rick Karcher -- 7/17/2006 8:27 AM  


A beautiful, sunny day in Portland and Rich and I are on the same page. Ban what you ban and punish those who're caught using the banned substances. Not only do I believe that MLB doesn't even have a drug "problem" versus, say, cycling or American football (hell, world football too), but that the drug "problem" doesn't represent magic production pills. Should MLB fight to eliminate PEDs from its game? Absolutely and it is...trying at least, even if many don't agree with the way that it's being done. Are PEDs MORE responsible for increased numbers vs. smaller stadiums, modern training and weight lifting, improved diet and legal supplements, tighter baseballs, advanced surgeries, "body armor," small strike zones, regular historic trends, etc? I don't think so. PEDs are an easy boogey-man, but the raw home run numbers don't indicate that they are solely responsible for anything and, even if they were, the jump in home runs over that last fifteen years hasn't been THAT dramatic. Those are the numbers. Agreed.

Have a nice day, keep up the good work, I particularly enjoy your baseball analyst work.

Kent

Anonymous Anonymous -- 7/17/2006 10:02 AM  


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