If mandatory drug testing is written into law, can Congress further mandate who administers the tests? I recently argued that MLB should turn to the World Anti-Doping Agency to ensure independent results, but what would Congress likely suggest?

 Jason -- 2/27/2008 5:06 PM  

From a practical standpoint it is absurd. As the Mitchell Report notes, drug policies must be flexible to be able to adopt to best practices as they evolve and to keep up with the cheaters in this cat-and-mouse game. It would be very tough for Congress to adopt such a policy. They could delegate to an administrative agency – such as USADA. But any police it implements would establish minimum standards that MLB could use as a shield for when things go wrong.
If Congress wants to get involved, force the Controlled Substance Act. Drug testing is a second best alternative. WADA/USADA testing wasn’t picking up the international athletes who were caught in the BALCO investigation. Giambi and Bonds weren’t the only athletes involved in that. To WADA’s credit, it did properly have positive test results on Jones before she was acquitted because of the short half life of the substance and the delay in the B sample.
This competition between WADA and American professional sports leagues is also very beneficial. Both are fighting for credibility as to who is better. This competition in a cat-and-mouse problem is very important.
As to another Constitutional argument, by taking drug testing out of collective bargaining would violate equal protection – as such rights clearly exist for other unionized employees who do not belong to the class of “professional athletes.” Possible because of the privacy rights involved such equal protection analysis would be more than mere rational basis review.
In my opinion, any congressional legislation will just stifle MLB from improving its policy.

 Anonymous -- 2/27/2008 6:19 PM  

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