Sports Law Blog
All things legal relating
to the sports world...
Sunday, December 16, 2007
 
Milwaukee Journal Sentinel Empirical Study of Players Named in Mitchell Report

The Milwaukee Journal Sentinel has conducted an empirical analysis of the statistical performances of the 90 players named in the Mitchell Report. The study, conducted by JS writers Ben Poston, Derrick Nunnally, Bill Glauber, and Don Walker, compared the players' first two seasons while being linked to performance-enhancers with their career averages.

Acknowledging that there may have been other casual factors (e.g., entering one's prime, hitting in a better lineup, receiving better coaching etc.), the study found that more than half of the named players experienced improved performances after being linked to roids. A full image of the chart to the left, which details the findings, can be seen here. The authors interview Gary Wadler, an internist who chairs the World Anti-Doping Agency's Prohibited List and Methods Sub-Committee, and me, for reaction.

Also, Tim Lemke of the Washington Times has an extensive piece on the prospects for a libel lawsuit, should any players be erroneously named or described in the Mitchell Report. He interviews MLBPA chief Donald Fehr, Jim Astrachan, an adjunct professor at the University of Maryland College of Law, and me.

Update: Alan Milstein discusses some interesting stories below in the comments:
Pettitte says he had two shots of HGH to see if he would heal faster, based on the recommendation of a trainer. Considering HGH was not a banned substance, how can anyone fault him for taking a drug to heal better? Don't we all do that?

Donnelly says he called Radomsky who recommended a steroid and he declined. He also said he was a marginal player who is now out of baseball and is sickened that his name has been tarnished.

David Justice, who I always thought was a class act, says the informant is lying and wonders how come there is no copy of any check he wrote when the report has copies of other checks? Good question. The answer is because there is no justice for Justice.

Mitchell and DLA Piper have done a real hatchet job here. They should be lambasted, not applauded. While a libel suit would be tough because the players are all public figures and because the law firm can say it in good faith relied on what the sources reported, the court of public opinion is a different story. Did some players take steroids or HGH? I'm sure they did. But, as a lawyer, I am more disappointed by the work product of Mitchell's team than I am of my home baseball team.

Alan Milstein





9 Comments:

Mike,

In the past two days, I have been asked whether there is a likelihood of a defamation action by one or more of the named players. If such a lawsuit would be considered -- and it's a big risk from my point of view -- I think that a retired player may take that approach. First, it is impossible that a journeyman player may not be considered a public figure, which makes proof much easier (the ease depends on state law). Sure, damages would not be as great, but any present player would almost certainly be a public figure, requiring malice. Also, if a player or former player sues, then the discovery stage could open that plaintiff up to potentially damaging information -- a hormet's nest and a greater risk of taint. It sure could be ugly.

Blogger Mark Conrad -- 12/16/2007 11:13 AM  


And did you see these three stories? Pettitte says he had two shots of HGH to see if he would heal faster, based on the recommendation of a trainer. Considering HGH was not a banned substance, how can anyone fault him for taking a drug to heal not perform better? Don't we all do that?http://sports.espn.go.com/mlb/news/story?id=3156305
Donnelly says he called Radomsky who recommended a steroid and he declined. He also said he was a marginal player who is now out of baseball and sickened that his name has been tarnished. http://sports.espn.go.com/mlb/news/story?id=3156636
David Justice, who I always thought was a class act, says the informant is lying and how come there is no copy of any check he wrote when the report has copies of other checks? Good question. The answer is because there is no justice for Jutice. http://www.recordonline.com/apps/pbcs.dll/article?AID=/20071215/SPORTS/712150340
Mitchell and DLA Piper have done a real hatchet job here. They should be lambasted not applauded. While a libel suit would be tough because the players are all public figures and because the law firm can say it in good faith relied on what sources reported, the court of public opinion is a different story. Did some players take steroids or HGH? I'm sure they did. But, as a lawyer, I am more disappointed by the work product of Mitchell's team then I am of my home baseball team. Alan Milstein

OpenID amilst -- 12/16/2007 11:41 AM  


My 10 yr. old son, who watches much more baseball than I do, summed it all up for me when he said, "who are all these guys?" Assuming the allegations are even true, if ALL the names are basically retired players and veteran players at the tail end of their careers, doesn't the report tend to prove that the current testing procedures implemented in 2005 ARE IN FACT WORKING? I'm amazed that not one player named is an up and coming player nor anybody in the prime of his career. Why are we suppose to make the conclusion from this report that steroid use is currently a prevalent problem?

Blogger Rick Karcher -- 12/16/2007 12:19 PM  


Where's the Milwaukee paper's control group? Wouldn't you generally expect that of a random sample of baseball players, half of them would perform better than their career average and the other half wouldn't? Isn't that kind of the definition of "average"?

(I'm VASTLY oversimplifying here, but I think it's an appropriate oversimplification, given the incredibly sloppy work done by that paper. ERA+ in particular is silly, because ERA is so variant from year-to-year, based on things largely out of the pitchers' control (balls in play, for instance). I think things like "did the player return faster from injury" and "was the average pitch speed higher" are the kinds of things to look at. The analysis wasn't meant to be more than quick and dirty, but giving quick and dirty information to a largely stats-ignorant public can do more harm than good.)

Blogger Jason Wojciechowski -- 12/16/2007 1:14 PM  


One possible explanation for the absence of up-and-coming players is the possibility that steroids and HGH are most effective at helping players either get over injuries (both Pettite and Santangelo say they used the substances to help them heal from injuries) or to help keep their bodies going as they aged (which best explains Clemens and Bonds).

I raised the same point as Mark in an interview last week--the only potential defendant who would not be a public figure is a retired middling utilityman-type. But even he would still bear the burden of proving that the statements were false (rather than truth being an affirmative defense) because the speech still is on a matter of public concern.

Blogger Howard Wasserman -- 12/16/2007 2:25 PM  


Just 50% of players on steroids got better? For any distribution of players would not 50% do better then their career averages while 50% do worse? Doesn't this study actually show that steroids are no more valuable in improving performance then a placebo?

Anonymous giantsrainman -- 12/17/2007 1:45 AM  


Howard, I guess what you're saying is true if we (the public) are supposedly concerned about players doing things to help them recover. I thought the concern was more about "performance-enhancing" (i.e. hit the ball farther or throw harder). I guess I don't understand why we are not concerned with pitchers having tommy john surgery (which actually does both).

Blogger Rick Karcher -- 12/17/2007 9:25 AM  


Personally, I think the whole "Peds are bad for your health" is just a myth. There is zero scientific evidence to support this myth and only a small amount of anadotal evidence. By outlawing Peds the government does not even allow any human research to verify what the actual facts are. My belief is that Peds at some level of use (like any other drug) become dangerous but nobody knows what level is safe and what level is dangerous since no real scientific studies have been made on the subject. I am very much inclined to believe that there is a safe level for athletes to use Peds and wish the moralists would get off they high horse and let the scientists determine what that safe level is. This should not be a legal or ethical issue it should be a scientific issue.

Anonymous giantsrainman -- 12/17/2007 3:17 PM  


Rick:

I think steroids, HGH, etc. do both, as well. And I agree that here never has been a rationale, cogent, science-based, panic-free discussion of why steroids are different than any of the other medical/scientific/technological advances that improve athlete longevity and performance. And the Mitchell's Report's simple "drugs are bad" and "think of the children" messages is not going to start that debate.

Blogger Howard Wasserman -- 12/18/2007 9:27 AM  


Post a Comment