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Congress, the courts
and baseball

While attempting to enjoy NCAA conference tournament action last weekend, in between bouts of averting my eyes to avoid the barrage of promos for ESPN’s thug-fest called “Tilt,” a sudden “special report” screamed, “Mark McGwire linked to steroid probe!” The reaction in the restaurant where I watched was akin to that of reports earlier in the week that Michael Jackson had dressed and acted bizarrely in court: Pass the pretzels, please.

That behemoths have been quaffing or injecting performance-enhancing and mass-building substances is news only to those who believe that Pete Rose never bet on baseball. Most fans of the game, though, have looked the other way – as have the lords of baseball themselves – in a sort of “boys will be boys” mode, enjoying the sight of massive clouts climbing high into the sky and over the wall.

And now, wielding considerable clout of their own, the U.S. Congress has weighed into the question of steroid abuse via the House Government Reform Committee’s investigation of same. Called onto the congressional carpet are seven active and former players as well as four league officials. Questions are likely to be directed toward the extent of steroid use and the effectiveness of Major League Baseball’s testing procedures.

My first reaction was, of course, that the government should keep its ever-stickier fingers out of the private sector. The second was that Congress was once again honing its own particular version of grandstanding: endless rounds of high-minded but ultimately useless questioning designed to gin up campaign support and promote face time.

But when you consider that baseball is the only professional sport that operates with near total impunity from antitrust laws and that the committee has oversight responsibility for federal drug policy, then maybe it’s time that the real D.C. Nats step up to the plate. It is this exemption that, among other things, allows MLB to move or eliminate teams in baseball-poor cities and thus allows the owners of those teams to beg taxpayer-funded stadiums and bailouts in order to remain.

It is interesting to note that baseball’s antitrust exemption, when adjudicated by the Supreme Court in 1922, was a wonderful example of the court using a very narrow interpretation of the now all-inclusive commerce clause. Justice Oliver Wendell Holmes Jr. wrote:

“As it is put by defendant, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.”

When a subsequent challenge arose in 1953, the court, in upholding the earlier ruling actually wrote, “We think that if there are evils in this field which now warrant application of it to the antitrust laws, it should be by legislation.” What a radical idea. That the judicial branch should not only recognize that their role was not to write law, but to say so, sounds especially revolutionary today.

So, if we reluctantly conclude that government has an interest in the possible reconsideration of baseball’s antitrust exemption, the next question is, if the players and officials are given immunity in return for their testimony, what does Congress hope to accomplish in compelling them to appear?

If, as many suspect, steroid use is still rampant in baseball due to the toothless testing policy agreed to last year by the owners and the players “union,” Congress can once again threaten to hold their exemption hostage in exchange for some real results.

And, while Congress cannot use its power to curb the look-at-me preening, incessant hot-dogging and general misbehavior of some bad apples, it can and probably should try to influence the game’s drug-enforcement policy. Corny or not, the truth is that even Congress, like most Americans, still holds baseball in esteem as the national pastime and believes that its players represent role models to the youth of this country.

And for those who don’t think that children see these men as role models, consider the growing use of steroids in high school; recall the showboating of the 2002 Little League World Series team from Harlem; or better yet, take a ride over to your own local ballfield.

Lisa Fabrizio is a columnist who hails from Connecticut. She can be contacted at [email protected].