David Epstein
Wednesday January 16th, 2008

WASHINGTON -- Major League Baseball is toeing the foul line. Members of the congressional Committee on Oversight and Government Reform are still far from convinced that MLB can wage a successful, long-term war on performance-enhancing drugs, but the consensus among committee members following Tuesday's hearing was that they heard just enough so that legislative intervention will not be immediately forthcoming.

Several members warned, however, that if a lack of player cooperation continues to impede progress, Congress is still ready to take the issue out of baseball's hands and onto the Hill.

Both chairman Henry Waxman, D-Calif., and ranking minority member Tom Davis, R-Va., said they were heartened by commissioner Bud Selig's willingness to swiftly embrace recommendations put forth in the Mitchell Report, such as his creation last week of an internal department of investigations that will be charged with investigating drug use, the removal of 24-hour notice before a random drug test and the negotiations in 2005 when the union and the league agreed to alter the drug policy even though it was between collective bargaining periods.

Waxman said he "was encouraged" by what he heard at the hearing, but will "reserve judgment on whether Congress needs to act." Davis summed up the feelings of many committee members when he said, "We put the ball back in Major League Baseball's court. We want to see how they react to this."

The most important reaction, and the one that Congress will have its widest eye on, will be from the players. Davis said he hopes the commissioner's office and the player's union can reach an agreement for keeping drug policies up-to-date between contract bargaining periods. "If we don't see [baseball officials] in Congress again, that's fine with me," he said. But other committee members felt that, after listening to union leader Donald Fehr's testimony, accord will be hard to come by.

Elijah Cummings, D-Md., co-founder of the Congressional Caucus on Drug Policy, said that "as I listened to Mr. Fehr, it sounds like there will be some significant resistance" from the players union with respect to incorporating all of former Senate Majority Leader George Mitchell's recommendations.

Fehr suggested that, already, he is not perfectly comfortable with Selig's race to adopt the Mitchell recommendations. "Unfortunately, the situation has been muddied by the commissioner's unilateral implementation of some of the recommendations ... that affect our members," Fehr said.

Some committee members prodded Fehr to acknowledge that the need to remedy baseball's drug problem has transcended the need to protect his constituents, adding that he should be willing to open the collective bargaining agreement, which does not expire until December 2011, as needed to alter the drug policy. But Fehr insisted that labor negations in this country are by necessity "adversarial."

"The contract is the lifeblood of the union," he said, "so it's tough to suggest it be reopened." He also hedged on questions of whether blood samples should be stored for future testing and retroactive punishments, and on the creation of a fully independent authority to administer the drug program.

Throughout the hearing, Selig and Fehr pointed out that the most significant Mitchell Report findings are years old and that baseball's current drug program, which includes a lifetime ban after a third offense (with the possibility of applying for reinstatement after two years) and offseason urine testing, seems to have largely eliminated steroid use. Still, Selig, who referred to the "minority" of players who use banned substances, acknowledged the Mitchell Report's finding that the use of human growth hormone is on the rise, and that the scale of its infestation is unknown.

Both Fehr and Selig said they support the implementation of HGH testing when a scientifically valid and commercially viable test becomes available, but that no blood or urine test is now available. In actuality, a blood test for human growth hormone was used at the both the 2004 Olympics in Athens and the 2006 Winter Olympics in Turin, and is considered reliable by the U.S. Anti-Doping Agency. Still, the test is not in common worldwide use because of a production shortage of testing kits needed to perform the analysis. A German company is now producing more kits.

Some committee members were adamant that Selig and Fehr did not make a strong enough case to obviate the need for congressional legislation that would implement a drug-testing program with Olympic standards.

"I believe they [explained enough progress in the hearing] to make passing legislation difficult," says Mark Souder, R-Ind., the other co-founder of the Congressional Caucus on Drug Policy. "But it didn't satisfy me." Souder, who happens to be a big baseball fan, said he still supports legislation to fix baseball.

For the most part, Mitchell got congratulatory treatment from committee members, but after the hearing Souder questioned Mitchell's conclusion that only drug producers and distributors in baseball, and not drug users, should be legally prosecuted. Mitchell insisted that has been the policy for drug users in general in this country for decades.

"That's not quite true," said Souder, who has spent much of his political career drafting drug policy. "We pick up users, and [threaten to prosecute], and they turn into government witnesses. That's how we catch distributors. We very rarely get straight to dealers. It's the guy who gassed up the plane for the shipment who gives a tip."

Souder also said he was entirely dissatisfied at not getting a clear answer when he asked why players who present statistical anomalies are not targeted for testing. Souder, who feels that Roger Clemens showed greater statistical variation in his later years than did Barry Bonds, is adamant that more frequent testing is needed in key cases, such as when a player experiences a huge home run spike, or when an older player is fighting back from injury.

Souder also echoed the concern of John Tierney, D-Mass., regarding abuse of prescription attention deficit disorder drugs. Tierney obtained statistics from MLB and noted that 103 players were granted therapeutic use exemptions in 2007 for stimulants to treat an attention deficit disorder, up from 28 in 2006. Such stimulants are similar to amphetamines and are known to be abused by athletes to improve performance. Tierney added that the 2007 figure is eight times the usage in the general adult population. Fehr countered that ADD drugs are probably more frequently used among young adults, such as baseball players, than in the general population of adults.

The parting message that committee members had for baseball was essentially: good improvement, but we're still breathing down your neck. "This is a critical moment, and I want to be an optimist," said Cummings, "but after listening to Fehr, I'm concerned about how long this will take. The longer it takes, the longer the door is open for violations of baseball policy and federal law, and the more likely Congress intervenes."

Roger Clemens may face an uphill battle on Feb. 13 when he tries to convince Congress that Brian McNamee's lies besmirched his reputation.

Eleanor Holmes Norton, D-D.C., asked Mitchell if, since the Clemens saga has publicly erupted, he still feels confident in McNamee's credibility. The result was the most straightforward answer Mitchell gave all day.

"Andy Pettitte has said the allegations about him were true," Mitchell said. "He confirmed the testimony ... through his attorney [McNamee] entered into an agreement with the U.S. Attorney's Office for the Northern District of California ... that no truthful statement can be used against him in prosecution."

Mitchell said he interviewed McNamee three times, all with federal investigators and McNamee's lawyer participating, and McNamee understood he could be charged with a felony of making false statements if he lied.

"Mr. McNamee had overwhelming incentive to tell the truth," Mitchell said.

In the third and final interview, in early December, a senior member of Mitchell's investigative staff read McNamee the portions of the report that were attributed to him.

"We asked him if he was completely comfortable with all the material," said Mitchell. McNamee said he was.

Added Souder: "Either McNamee is going to jail, or Clemens has a big problem."

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