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Monday, December 17, 2007
Dimino on Punishing Steroid Users

Mike Dimino at PrawfsBlawg argues that players found to have used steroids should receive lifetime bans for threatening the integrity of the game. The post and the ensuing comments are worth a look.


I read Mike's entire piece and was a little shocked by the discussion of lifetime bans for those named in the Mitchell Report:

(1) First, because the commissioner of baseball exerts control over an entire North American baseball industry, a lifetime ban would substantially restrain trade in the labor for baseball players. As the respected arbitrator George Nicolau explained in reinstating Steve Howe into baseball despite his drug use, "the Commissioner is not an employer who has decided for himself that he will no longer retain an employee who is then free to go elsewhere in the same industry." The Commissioner rather rules employment prospects for an entire industry. Therefore, "[d]eterrence, however laudable an objective, should not be achieved at the expense of fairness."

(2) Second, as a basic matter of contract construction, the more narrowly worded clause in a contract trumps the more general. Given that baseball has long maintained collective bargaining provisions related to drug testing (however weak these provisions may have been), any attempt to circumvent these principles and instead punish players based on a more general "best interest" clause seems not only legally suspect, but morally questionable.

(3) Finally, a lifetime ban does not seem to meet any of the generally accepted reasons for punishment that exist in a developed society. The lifetime ban fails from a retributive justice perspective because it singles out a small segment of potential wrongdoers rather than the entire universe, and it makes no attempt to differentiate based on the degree of purported wrongdoing. A lifetime ban also fails based on a deterrence rationale because from an ex ante perspective many of these players (especially those using HGH) had no reason to expect punishment and therefore no reason to have been deterred. As George Mitchell suggests, heightened education, testing, and future consequences are the best remedial approach.

Blogger Marc Edelman -- 12/17/2007 1:33 PM  

On the other hand, the lifetime ban for Pete Rose became a bargaining chip that ultimately brought forth an admission of wrongdoing that would likely not have happened absent the ban...

Anonymous The Sports Curmudgeon -- 12/17/2007 8:56 PM  

sounds great, as long as they give lifetime bans to all the clubs who looked the other way, and the players union who prevented the league from effective testing.

Anonymous Dave -- 12/18/2007 7:44 AM  

Ah Dave, but then they'd have to shut down the whole league. (Which might not be such a bad thing, IMHO.)

Blogger Joshua -- 12/19/2007 8:09 PM  

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