McCain continues to apply pressure

Without tougher testing, legislation possible option

Congress

Baseball

December 07, 2004|By Jeff Barker | Jeff Barker,SUN STAFF

WASHINGTON -- Last March, Senate Commerce Committee Chairman John McCain warned baseball to get serious about drug testing.

"Your failure to address these issues straight on will motivate this committee to search for legislative remedies," the Republican senator from Arizona told leaders of the sport and its players union.

Nine months later -- with baseball still not having acted -- McCain issued a second, sterner warning last weekend. This time, according to sports lawyers, marketers and Capitol Hill staff, the senator's coaxing has a better chance of achieving the desired results.

The difference, experts said yesterday, is largely because of momentum and the more urgent nature of McCain's threat, which, unlike before, establishes a deadline -- January -- for baseball to toughen its drug program.

"They are going to have to heed this warning," Paul Swangard, managing director of the University of Oregon's Warsaw Sports Marketing Center, said yesterday. "You don't want to be on the bad side of somebody like McCain, because he can make it pretty uncomfortable if he wants to."

Yesterday, baseball commissioner Bud Selig, railing against the use of "these horrible substances," said he would accept McCain's intervention on steroid testing if the players association doesn't budge from the current rules. The union's executive board is meeting this week in Phoenix, and steroid testing is to be discussed.

"I appreciate the support of Sen. McCain on this serious issue of ridding Major League Baseball of performance-enhancing substances and I am grateful for his assistance and concern," Selig said in a statement. "If we cannot resolve this issue privately, I gladly will accept whatever help is offered by Sen. McCain to achieve our ultimate goal."

Players union spokesman Greg Bouris declined to comment.

Drug testing's heightened profile in recent days will make it harder for baseball or the Major League Baseball Players Association to duck an issue that goes to the sport's integrity, Swangard and other sports academicians said.

The failures of drug testing have exploded in the news following reports that Jason Giambi told a federal grand jury he had used steroids, and that fellow slugger Barry Bonds said he may have unwittingly used steroids.

The players risk being cast as villains if Selig convinces the public that the union is resistant to change. For years, that perception may not have mattered, said Gary Roberts, director of the sports law program at Tulane University.

"As an ideological matter the union has believed strongly in the privacy rights of their players," Roberts said. "I think the vast majority of the American public does not sympathize with those views, but [union leaders] Don Fehr and Gene Orza don't keep their jobs based on public approval. They represent the players."

But the climate seems to be shifting, Roberts said.

"In a larger sense, even Don's and Gene's deep feelings about privacy rights have got to be tempered to some extent by the notion that the revelations about Bonds and Giambi create a culture where players feel they have to do these drugs in order to shine," Roberts said.

Increasingly, Swangard said, the issue has become about integrity.

"Even though it would be hard to legislate his type of thing [a drug-testing program], this has become a 'Do the right thing' issue. It's about a code of honor and a code of ethics," Swangard said.

In the absence of significant progress, McCain says he will introduce legislation early next year to guarantee that players adhere to a new minimum drug- testing standard.

According to congressional staff, McCain has examined the drug program of the sport's minor leagues, which have a tougher regimen than what major leaguers submit to. But aides said yesterday that the senator believes it is premature to draft specific legislation, and would prefer his threat remain just that at least for now. "He's waiting for baseball to do its job," an aide said.

McCain and Congress have a variety of tools, including rewriting the drug-testing provisions in baseball's collective bargaining agreement or threatening to revoke the sport's antitrust exemption. The exemption allows the sport to pool resources and behave in other ways that most business enterprises must avoid in an open marketplace.

Congress has often dangled the antitrust exemption in front of baseball to cajole it -- including in 2002, when senators threatened to revoke the immunity to head off a potential strike.

Congress claims much of its powers over baseball under the Constitution's interstate commerce clause. "Since the Depression and the National Recovery Act, the Supreme Court has interpreted it [the clause] very broadly, and I'm sure this would fall under that rubric," Roberts said.

Baseball's drug program is part of collective bargaining, which doesn't expire until the end of the 2006 season, but can be rewritten if the sport and the union consent.

In 2003, baseball conducted 1,438 anonymous, unannounced drug tests. The number of positives was between 5 and 7 percent. Critics say the program is flawed because the penalties are too lenient -- a first offense requires only treatment -- and because it doesn't run year-round. For example, this year's testing began March 2.

Experts in performance-enhancing drugs say athletes could take low doses of illegal drugs and cycle off before the season's testing begins.

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