MLB players have little reason to play ball

The great basebal columnist Murray Chass notes that the players union would likely have had in place by now a stronger testing regimen, if not for the high-handed actions of federal prosecutors in San Francisco.

On one coast, a member of one branch of the government is threatening baseball and its players union by saying that if they do not quickly agree to strengthen their steroids testing program, he will introduce legislation to do it for them.

On the other coast, another branch of the government has been engaged in activity that has impeded the union's willingness to take an unprecedented step and agree to a new, improved steroids program.

Senator John McCain, meet the United States attorney's office in San Francisco.

Less than month after McCain, back in March, threatened congressional action going after steroid use in baseball, federal agents seized specimens from the drug tests the players union agreed to last year. The players had agreed to those tests, taken at the start of spring training, under the condition that the results be anonymous. And anonymity is the one thing that all the players -- those willing to make a change to the current collective bargaining agreement and those not so willing -- can agree to.

But now federal agents have seized test results as well as the codes used to protect players' privacy, and they will likely use that information to induce other players to testify.

So if the players union agrees at this point to a stricter regimen they would be positioning themselves as the very source of evidence the next time a federal prosecutor wants to make a name for himself and begin indicting ball players -- "an investigative arm of a federal agency," as Chass puts it.

The players do not like being in that position any more than they like the prospect of having their test results subject to scrutiny and disclosure. The breach of faith demonstrated by the government's seizure of their 2003 tests only made the players more suspicious of the program itself.

The players also have reason to be suspicious of the owners' motives in creating a tougher testing regimen. The clubs have a right to pursue suspicions about a player's use of performance-enhancing substances, but in its two years on the books, no club has used the "reasonable cause testing" provision.

If a team suspects that a player has used a prohibited substance in the previous 12 months, it can submit information to a member of the health policy advisory committee. The committee then decides if the player should be tested immediately.

It seems highly unlikely that the Yankees would report Giambi or that the Giants would turn in Bonds.

In 1985, the owners unilaterally terminated a joint drug program with the players, as was their right. They terminated the program because it was not working for them. The only way a player was going to be tested under the program was if his team submitted his name to the drug panel and said he was suspected of using recreational drugs. Teams, not surprisingly, were reluctant to turn in their own players.

If players are to be hanged for any kind of drug use, the clubs want the players to hang themselves. The clubs do not want to be the hangmen.

Meanwhile, the convergence of baseball and politics just looks messier and messier.

McCain said Congress had the right to pass laws in this area because "it's got to do with interstate commerce, so we do have a role to play."

The United States Constitution gives Congress the authority to "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." But use of that authority to regulate baseball has been subject to varying interpretations.

In a 1922 ruling by the Supreme Court, written by Justice Oliver Wendell Holmes, the court said that baseball "would not be called trade or commerce in the commonly accepted use of those words" and that it was "purely a state affair," meaning Congress could not regulate it under the interstate commerce clause. The ruling also said baseball was not subject to antitrust laws.

But in a 1972 case, the court found that baseball was involved in interstate commerce, saying, "Professional baseball is a business, and it is engaged in interstate commerce."

In 1998, Congress passed and President Clinton signed a law repealing part of baseball's longstanding antitrust exemption for matters of labor relations. Testing players for steroids would probably be a labor-relations issue.

That is why McCain cautioned that President Bush "has to be a little bit careful" because he has "the Justice Department, obviously, under his command." The Justice Department prosecutes antitrust violations.

Bush always wanted to be baseball's commish (would that he were...Damn you, Bud Selig!). Now's his chance to act like one. I somehow doubt -- State of the Union addresses notwithstanding -- that's he's up for that task. Better dealing with insurgents in Iraq that the combined wrath of the owners and the players.