Sports Law Blog
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Saturday, November 17, 2007
Barry Bonds, the Home Run Record, and the Hall of Fame
Thursday's indictment of Barry Bonds on four counts of perjury and one count of obstruction of justice, arising from his allegedly false grand-jury testimony about his steroid use, squarely presents evidence that Bonds did indeed use performance-enhancing drugs. Bonds's statements denying steroid use only can be perjury if there is evidence that he did use steroids. The criminal process will play itself out moving forward.
But there also is the question of Commissioner Bud Selig imposing punishment within the sub-society of Major League Baseball--if it should punish, when it should punish, and how it should punish.
If: The question of whether MLB can punish Bonds for steroid use is somewhat murky. It is not clear whether steroid use was against Major League Rules during the time-frame at issue, roughly 2001-2003. There definitely was no testing for steroids then. On the other hand, steroid use was against federal law. Major League Rule 21(f) prohibits "any and all other acts, transactions, practices or conduct not . . . in the best interests of Baseball." Selig could decide that using illegal performance-enhancing drugs is conduct adverse to the best interests of baseball and punish him accordingly. It also is likely that the Major League Baseball Players Association will contest any league-imposed punishment and appeal any punishment to a labor arbitrator. This actually might present a nice test of the scope of the commissioner's "Best-Interest" power and how it is or might be limited by the CBA.
When: This is the question of whether Selig should suspend, ban, or otherwise punish Bonds now, in light of the indictment, or wait until the criminal process has played out. An indictment obviously is not a conviction and Bonds could well be acquitted, making any punishment now look like a rush to judgment. And a suspension now, pending resolution of the prosecution, likely ends Bonds's career. He is 43; if he is acquitted a year from now and Selig lifts the suspension, his next opportunity to play will be in 2009, when he will be almost 45.
On the other hand, the indictment does mean there is some evidence that Bonds used steroids (the indictment mentions a positive drug test, although it is ambiguous whether the indictment was referring to Bonds or another player at that point). And Selig can impose baseball-related punishment on proof less than beyond-a-reasonable-doubt. Thus, even if Bonds is acquitted of perjury, Selig still could decide there is sufficient evidence that Bonds used steroids and should be punished within the game, such as with a permanent suspension. Historically, this is what happened with the members of the Black Sox who threw the 1919 World Series. The eight players were acquitted (surprise--a Chicago jury would not convict White Sox players), but new Commissioner Kenesaw Mountain Landis banned the players for life anyway.
How: There are two obvious targets for baseball punishment. One is Bonds's possession of a number of historical records, including the two most-hallowed batting records--single-season home runs with 73 in 2002 and career home runs, currently with 762. The other is Bonds's selection into the National Baseball Hall of Fame.
There may be a temptation to strip Bonds of his records in recognition of the fact that he essentially achieved them by cheating--either by erasing his name from the top of the record book or by placing the dreaded asterisk next to his name. I previously have explained why I do not like asterisks. But I similarly reject stripping Bonds of the records. It smacks too much of rewriting history--of creating a "true" (but not accurate) historical record by eliminating from society's official story the enemies of the state, those who have run afoul of those in power. Even in something as (relatively) insignificant as professional sports, a respect for historical truth is important. Better to let the record show both what Bonds achieved and the way he achieved it and to let history judge. If MLB wants to introduce Henry Aaron as the "Real Home Run King" at all official events, fine--so long as the record book remains accurate.
As to the Hall of Fame, I discussed Bonds and the Hall last year, when reports first surfaced that grand jury testimony indicated that Bonds had used steroids and/or perjured himself. But this is a future issue. A player must have ceased playing five calendar years prior to selection, so if Bonds is done playing now, he would first be on the ballot in 2013.
Bonds's eligibility for the Hall of Fame actually depends somewhat on what Selig does. MLB does not control Hall of Fame selection or induction. But HOF Rule 3(E) provides that "[a]ny player on Baseball's ineligible list shall not be an eligible candidate." So if Selig bans Bonds, Bonds is ineligible for election. Indeed, Selig might impose a ban for that reason, since denying Hall election may be the only way that Baseball could meaningfully sanction him for this misconduct (assuming Bonds is done playing). If Bonds is not suspended or banned, voters still consider "the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played" in deciding whether to select a player for the Hall; cheating could weigh into the balance on Bonds's sportsmanship and character. Suspicion of steroid use has kept, or likely will keep out, several other players, including Mark McGwire and Rafael Palmiero. But Bonds's Hall credentials are much stronger than either of those players; Bonds arguably is one of the three best players of his generation. It will be interesting to see how this new evidence of steroid use plays into the voters' calculus in the years to come.
(Cross-Posted at PrawfsBlawg)