April 2013 Bar Bulletin
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April 2013 Bar Bulletin

Feds and PEDs: Why Do They Care?

By Christina Schuck


Well before opening day of the 2013 baseball season, steroids and human growth hormone (HGH) were already in the news. In early February, Mariners catcher Jesus Montero, along with well-known stars such as Alex Rodriguez and Melky Cabrera, turned up in a Florida anti-aging clinic's records.1

This clinic is now under investigation by federal law enforcement. The federal government started investigating the use of performance enhancing drugs in baseball in 2002 and despite high-profile hearings and trials, has achieved negligible results.

The federal government's involvement in baseball is a recent development. In 1922, the Supreme Court ruled that baseball was not subject to federal regulation, specifically federal antitrust laws. Writing for the Court, Justice Oliver Wendell Holmes reasoned in Federal Baseball Club of Baltimore v. National League that baseball was not subject to federal regulation because "personal effort, not related to production, is not a subject of commerce."2

Despite the expansion of the use of the Commerce Clause to increasingly regulate businesses and activities that crossed state lines, the Federal Baseball Club decision stood. Notably, no other national sport enjoys this exemption. Although in subsequent decisions the Court acknowledged baseball's exemption from the Sherman Act as an aberration, the Court still upheld it on the grounds of stare decisis and congressional inaction. For example, in a 1953 case, Toolson v. New York Yankees, the Court reasoned that if Congress had wanted antitrust laws to apply to baseball, Congress could have acted.3

In 1998 Congress did act by passing the Curt Flood Act, subjecting baseball labor relations to federal regulation.4 The Act failed to address issues such as team relocation, minor-league play, the employment of umpires, broadcasting agreements and league expansion.5

One aspect of baseball the federal government has taken great interest in is the use of performance enhancing drugs (PEDs), in particular steroids and HGH. Congress outlawed the use of steroids in the 1990 Anabolic Steroids Control Act, placing anabolic steroids into Schedule III of the Controlled Substances Act.6 Other drugs in Schedule III include amphetamines, methamphetamines, opium and morphine.7

Anabolic steroids are defined as "any drug or hormonal substance chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth."8 Also in 1990, Congress limited the distribution of HGH to only a few rare conditions, including children with stunted growth.9 Consequently, HGH is banned for use as an anti-aging drug and for strength conditioning. Major League Baseball (MLB) officially banned steroids in 1991.10

However, neither the MLB nor the federal government paid much attention to the use of steroids and HGH in baseball until 2002. In response to the perceived widespread use of PEDs in baseball or what was known as the "Steroid Era," the MLB Players Association and baseball's owners reached a collective bargaining agreement providing for the suspicionless drug testing of players.11

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