Tucked away inside ESPN's blockbuster report last night that Major League Baseball is preparing to hand out an unprecedented 20 or so steroid suspensions—including to Hall of Fame talent Alex Rodriguez and former Most Valuable Player Ryan Braun—as part of an agreement reached with a performance-enhancing clinician who MLB had been trying to sue into oblivion, were these curious two partial paragraphs:
Sources said discussions between [Biogenesis of America founder Tony] Bosch and MLB were delayed while Bosch's lawyers spoke to the U.S. Attorney's office to get a sense of what sort of legal jeopardy Bosch might face. Before he would agree to a deal, sources said, he wanted an assurance that MLB could help mitigate any criminal exposure. […]
Baseball will drop the lawsuit it filed against Bosch in March, indemnify him for any liability arising from his cooperation, provide personal security for him and even put in a good word with any law enforcement agency that might bring charges against him. Sources said negotiations over the agreement, which lasted several weeks, stalled over the last point, as Bosch wanted the strongest assurances he could get that MLB would help mitigate any prosecution.
Emphasis mine. Someone new to the steroids-in-baseball story might be asking at this point, Just what in hell does a professional sports league have to do with federal law enforcement, anyway? The answer is that Major League Baseball and the feds have been explicitly partnered for more than a decade now in their common goal to maximally shame professional ballplayers suspected of ingesting illegal and/or professionally banned substances.
Consider this latest example. The suspensions have not been issued yet, and "it could be months before baseball attempts to act," according to The New York Times:
For one thing, baseball's investigators have yet to conduct interviews of numerous players it believes might be connected to the clinic.
If suspensions are handed down, they will almost certainly be challenged by the players union, because there will apparently be no positive drug tests to consider and because baseball made payments to obtain evidence and cooperation. In all likelihood, baseball will ultimately have to prove its case against players to an arbitrator.
So why, exactly, are we reading about this now? Because Major League Baseball, which is almost certainly the source of the leak, understands the value of a speculative media feeding-frenzy about steroids and baseball stars.
Any complaints by the Major League Baseball Players Association that their collectively bargained drug policy (PDF) does not include as a punishable offense being fingered by bought-off witnesses ("The Players Association has every interest in both defending the rights of players and in defending the integrity of our joint program. We trust that the Commissioner's Office shares these interests," is how the MLBPA tastefully put it) will be reliably greeted with hoots of derision from a sporting press baying for blood. And just in case anyone at the U.S. Attorney's office is not fully on board with the MLB-Bosch negotiations, there will be intense public pressure to grant the suspected peddler legal immunity so that he can best sully the reputations of high-profile players.
This is an inversion of federal law enforcement priorities. The Department of Justice is supposed to spend scarce enforcement resources on dealers, not end users. But ever since George W. Bush name-checked steroids in his 2004 State of the Union address—emphasizing that usage by elite athletes "sends the wrong message" to kids—federal investigators have focused on the public humiliation of users, rather than the criminal prosecution of dealers.
All-time greats Roger Clemens and Barry Bonds were prosecuted at heavy government expense not for an underlying crime involving steroid use, but perjury for how they talked about it under oath. (Clemens received a mistrial and a not-guilty verdict in his two trials; Bonds is appealing his lone conviction for obstruction of justice in the way he answered a question.) The people associated with steroids who served longest in jail have not been dealers, but friends of star athletes who remained silent rather than have their testimony compelled by Grand Juries.
All of these MLB-generated public firestorms have been very efficient in pressuring the union to accept drug-policy changes more acceptable to baseball owners. In 2004, after President Bush's speech, Congress created big show hearings on Capitol Hill in which a bipartisan consensus of interventionists, including Rep. Nancy Pelosi (D-California) and Sen. John McCain (R-Arizona), threatened heavy-handed federal legislation if the union didn't cave far or fast enough. Baseball Commissioner Bud Selig was quite open at the time about using the federal government as a million-pound thumb on the scale of collective bargaining negotiations:
If we cannot resolve this issue privately, I gladly will accept whatever help is offered by Sen. McCain to achieve our ultimate goal….While I would prefer to resolve this problem directly with the Players Association and jointly implement a much stronger drug-testing policy in Major League Baseball, one modeled after our program in the minor leagues, I understand the need for swift and resolute action.
The union accepted a new drug policy by the end of the year. Further rounds of MLB publicity-mongering (a long in-house investigation by former Senator George Mitchell, a series of high-profile hearings by the House Committee on Oversight and Government Reform, and MLB's own four-year investigation into Bosch) have yielded further concessions from the union on substances, testing and punishment.
Most baseball fans will likely shrug, or be supportive at this latest (though never last) attempt to "clean up baseball," even if it requires, as Jonah Keri puts it in an informative Grantland article, "trampling on due process."
But it is wildly inappropriate for federal law enforcement to be in the public-shaming business, let alone collaborating openly with a multi-billion industry to change the terms of its industrial relations. A-Rod may be an A-Fraud, and a deeply unlikeable former superstar, but he has never misspent my tax dollars.