Also, as David has previously pointed out for us, the question of the legality of any particular steroid or steroid-like substance was something of a mess in the 1990s. So a blanket ban on "all illegal drugs...including steroids" enacted in 1991 would have had rather limited scope even if it had been binding.

He also claims that Rose never bet on the Reds to win when Mario Soto was pitching.

You'd have to look at the game logs to see, but it's possible that if Rose never bet on Soto, then he may have used the opportunity to rest some stars when Soto was pitching. As stated above, there are probably a hundred ways to affect the games without actually trying to lose a particular game.

If Mac would just hold "a full news conference," then I promise I'll forgive him and stop writing these piling-on articles.

(Mac holds news conference. "But wait, it wasn't a full news conference. There were only 85 writers there and it only lasted 7 hours and he only answered 124 questions and he only called on me 7 times and...and...and....)

Of course, the main reaction -- the same one we're seeing now: "He didn't give the 'right' answers.". McGwire needs to grovel and beg for forgiveness for making reporters feel foolish. And he has to demonstrate his sincerity through (Andy will appreciate this) a self-criticism session. Until he says, "I'm a fraud who poops my pants," these people won't be satisfied.

Until he says, "I'm a fraud who poops my pants," these people won't be satisfied.

"We don't believe you! Show us the pants! This isn't enough poop!"

EDITOR DAN SZYMBORSKI'S 1/27/2010 MEMO

Starting on February 1, 2010, all taxpayers will be subject to a 0.7% payroll tax, with no income cap, the proceeds of which will be immediately turned over to Dan Szymborski. Failure to pay this tax on earned income will result in Robot Death Squads being dispatched to your residence or place of employment for either immediate surrender of required funds or penalty of Robo-liquefaction.

This note laws out valid rules to the exact same degree that Fay Vincent's memo did.

Robo-liquefaction

Dan, if you're proposing to liquefy Rosenthal, shouldn't you have posted it in the other McGwire thread?

Liquifying a robot doesn't seem like much of a threat. I mean, sure, it will make a mess, but it can be cleaned up for less than the price of the tax, I think. Although I guess I'm not sure how hard it is to get robot out of a carpet. Still, seems like a money-losing proposition for you.

Robo-liquefaction is when you're turned into a liquid state by evil robots.

Robo-liquefaction is when you're turned into a liquid state by evil robots.

I don't think it's fair to assume that the robots would be evil. There are perfectly valid reasons to liquify someone and I think the robots could be agents of good. There is no need to demonize them just because they are non-human.

I'm going to be out of my league in a philosophy discussion, but are you guys saying that the rule doesn't exist just because there's no defined punishment? Logically that doesn't make sense. The rule does, in fact, exist*, so anyone violating the rule is, in fact, breaking the rule. If there's no punishment then the rule has no teeth, I get that. But you can't really say that they weren't breaking any rules.

*Let's assume for this discussion that the rule is in place and Vincent is just calling attention to it.

I'm going to be out of my league in a philosophy discussion, but are you guys saying that the rule doesn't exist just because there's no defined punishment?

I don't think they're sating that. Rather, I think that they're saying that the rule didn't exist because it wasn't in the power of the Commissioner's office to create and implement the rule without negotiating it with the MLBPA, in accordance with the rules and guidelines of the CBA. In this case, it wasn't until years later that such an attempt was made.

75. Steve Treder Posted: January 26, 2010 at 06:43 PM (#3447235)
Somewhat related, is there any evidence supporting the theory of balls changing in 93-94?

The sudden across-the-board increase in power stats across both leagues can scarcely be explained by anything other than a more resilient ball. All of the other things (the parks, the strike zone, the bats, weight-trained hitters (with or without steroids), etc. etc.) still applied of course, but none of those things can explain a sudden league-wide shift.

OMG. Winner, winner, chicken dinner.

Of course, the main reaction -- the same one we're seeing now: "He didn't give the 'right' answers.". McGwire needs to grovel and beg for forgiveness for making reporters feel foolish. And he has to demonstrate his sincerity through (Andy will appreciate this) a self-criticism session. Until he says, "I'm a fraud who poops my pants," these people won't be satisfied.

No argument with any of that. It's a pathetic reaction, and it does have a lot of the same loathsome spirit as a self-criticism session. McGwire's motives, whatever they might have been, might conceivably form the basis for an interesting novel or film, but it would be interesting only if it unfolded as a dialogue between McGwire and himself, or between McGwire and his closest friends, not something that's instigated by some moron trying to play "gotcha."

Even if the Vincent memo had specified penalties, and even if it had been within Vincent's power to unilaterally implement a drug policy, enforcement still would have been problematic owing to the lack of specificity in defining which drugs were being banned.

Even if the Vincent memo had specified penalties, and even if it had been within Vincent's power to unilaterally implement a drug policy, enforcement still would have been problematic owing to the lack of specificity in defining which drugs were being banned.

I agree with all of that. But why does the lack of enforceability mean that the rule should be ignored? I mean, morally (or ethically, I'm not sure of the right word), the people were still breaking a rule.

Rather, I think that they're saying that the rule didn't exist because it wasn't in the power of the Commissioner's office to create and implement the rule without negotiating it with the MLBPA, in accordance with the rules and guidelines of the CBA. In this case, it wasn't until years later that such an attempt was made.

I understand that it's up for debate. And if that's the only argument, then I have not issue with it. But I get the impression that some people are saying that since there was no enforcement then the rule didn't exist. And yes, I hate it when people use "some people", but I don't follow these discussions closely enough to see which posters I'm questioning. So I'm kind of issuing a blank question and if nobody actually thinks that, then maybe it's a dead issue.

I think if I were McGwire's PR advisor(s), I would advise him not to talk about it anymore. Just to reiterate that he was sorry, he was wrong, but now he wants to focus on helping the St. Louis Cardinals continue to be a successful team, etc. I don't think saying more stuff for people to parse will help him. Even if he does say, "Yeah, maybe steroids helped me hit HRs" some people would still say, "He only admitted it after he was forced to" etc. Based on what we know, it seems that most of the Cardinal fan base likes having McGwire around and is OK with it, and even if they're not, I can't see any but a very miniscule number of Cards' fans actually letting it affect thieir rooting interest in the team. So I don't really think that McGwire or the Cardinals need to worry about Rosenthal Gammons et al.

I agree with all of that. But why does the lack of enforceability mean that the rule should be ignored? I mean, morally (or ethically, I'm not sure of the right word), the people were still breaking a rule.

What is your evidence that the players even saw this memo?

I think if I were McGwire's PR advisor(s), I would advise him not to talk about it anymore. Just to reiterate that he was sorry, he was wrong, but now he wants to focus on helping the St. Louis Cardinals continue to be a successful team, etc. I don't think saying more stuff for people to parse will help him. Even if he does say, "Yeah, maybe steroids helped me hit HRs" some people would still say, "He only admitted it after he was forced to" etc. Based on what we know, it seems that most of the Cardinal fan base likes having McGwire around and is OK with it, and even if they're not, I can't see any but a very miniscule number of Cards' fans actually letting it affect thieir rooting interest in the team. So I don't really think that McGwire or the Cardinals need to worry about Rosenthal Gammons et al.

Agreed. If the Cardinals and their fans are happy with him, then he's good.

are you guys saying that the rule doesn't exist just because there's no defined punishment?

I think my point was more that McGwire has already paid the penalty for transgressing the Vincent memo (nothing), just as Ramirez paid the penalty for failing his PEDs test (50 games). So why shouldn't McGwire work in baseball next year, same as Ramirez will? The ban has been evolving over the years, from an earnest suggestion toward a collectively-bargained system of penalties. So far, nobody's been formally banned from working in baseball for steroid use. In the future, when permanent bans and robo-liquefaction are the order of the day, juicers will be subject to the same treatment as Pete Rose, but not until.

Edit: And nobody should be punished retroactively, (almost) needless to say.

I agree with all of that. But why does the lack of enforceability mean that the rule should be ignored?

The lack of enforceability doesn't even come into play. There was no rule to be ignored because it had already been ruled in binding arbitration that the commissioner had no power to even make such a rule.

The memo was circulated to "ALL MAJOR LEAGUE CLUBS" with cc's to:

"League Presidents
Player Relations Committee
Major League Baseball Players Association"

To the extent Vincent even remembers anything about this memo, he concedes that they were mainly concerned with cocaine (they thought steroid use was "a football problem") and that the memo had no power over the players.

Yes, the memo was cc'd to the union, but there's nothing to indicate that the union actually informed players of its contents -- which amounted to a "policy" that wasn't collectively bargained. Vincent admits that likely nobody paid much attention to memo.

Greg,
I think the view you are questioning in 115 is one held by some contemporary philosophers.
Here's a question. Take a purely hypothetical situation, chosen for its properties to test exactly the question you have about rules and punishment: Selig decides that he can make all the rules he likes, as commissioner of baseball, he just can't enforce any punishments without the union's say-so. I think this is controversial and probably false; assume that this fictional Selig is right, for the sake of the argument. Selig therefore puts out a memo making a rule that bans maple bats, distributes it to every player, etc, but denies that there is any punishment whatsoever associated with breaking that rule.
Now, we have to be careful; nobody can criticize or condemn the players for using maple bats on the basis that they're breaking this rule. That would be a type of punishment. It might not be the type you had in mind, but it's a type of punishment, I think. In fact, we can't even really see breaking this rule as a bad thing, if we take Selig at his word that there is no punishment whatsoever for breaking this rule.

Now, with that picture in mind, has Selig actually made a rule? My intuition is that he hasn't, really; we would be using the word 'rule' very, very loosely if we applied it to cases where the institution who put out the rule basically says "Hey, do what you want, we won't do anything about it and there will be no consequences at all if you break it, but nonetheless there's this rule."

Now, you might say that really, you were okay with allowing punishments of those less-formal kinds; by 'punishment' you meant something like a formal act on behalf of some institution. But I think the union would be unhappy with this limited definition of punishment; they don't want their working conditions to be able to be unilaterally changed by a representative of ownership. And I think if Selig did put out a rule like the above without the union's say-so, they would have a good argument that his representing it as a 'rule' is sufficient to tie social sanction to violating it. That wouldn't, by their lights, be cool.

In short, if you call something a 'rule' you're saying there's something wrong with breaking it. If there's something wrong with breaking it, it sure seems like there's some kind of punishment.

To the extent Vincent even remembers anything about this memo, he concedes that they were mainly concerned with cocaine (they thought steroid use was "a football problem")

And if you read it (and know the context, although I think it's clear even if you don't know the context), it's clear that this had nothing to do with performance enhancement. It was concerned with recreational drug abuse. That's why, pursuant to the memo, players who used the specified drugs were to be sent to rehab, not punished.

(I just want to be clear on that last point: it wasn't just that punishment wasn't "defined," but that it wasn't designed as a penal rule at all.)

In short, if you call something a 'rule' you're saying there's something wrong with breaking it. If there's something wrong with breaking it, it sure seems like there's some kind of punishment.

What you're saying makes a lot of sense. And I agree with the punishment, etc. But this comment:

nobody can criticize or condemn the players for using maple bats on the basis that they're breaking this rule. That would be a type of punishment. It might not be the type you had in mind, but it's a type of punishment, I think.

is at the heart of what I'm getting at. Sure, MLB can't criticize or condemn, but I'd think there would be no problem with a reporter writing a column that stated that Player X broke the rule (assuming that there was proof of using a maple bat). And Player X would either ignore the reporter, or say that the rule is meaningless. But he couldn't really say that he didn't break the rule.

As for the other posters' comments, I've already stipulated that I'm assuming for the sake of this arguement the rule existed. Nobody has come forward to state that the rule existed but they players didn't break it, so I may be arguing with people who don't exist.

(I just want to be clear on that last point: it wasn't just that punishment wasn't "defined," but that it wasn't designed as a penal rule at all.)

I can see the point that even though the memo says illegal drugs, that people didn't think it applied to steroids. That is certainly an argument for saying that the players weren't breaking this rule, that it not understood to apply to them.

But my point is that there /isn't/ really a rule in that case. Fictional-Selig is screaming to the rafters that he's making this rule, damn it, but I think he's actually failing to make a rule, because part of making a rule is having the authority to make it be the case that breaking that rule is in some sense a bad thing. And Fictional-Selig lacks that authority.

Yes, the memo was cc'd to the union, but there's nothing to indicate that the union actually informed players of its contents -- which amounted to a "policy" that wasn't collectively bargained.

This doesn't follow. Communication between the Union and management means that it wasn't collectively bargained? Collective bargaining is usually between management and union officials, not between management and all members of the bargaining unit as individuals. Likewise, in most contexts, notification from management to a union is sufficient to put members of the union (and in some contexts people in the bargaining unit who are not members of the union) on notice.

The prior arbital decisions in the cocaine cases limit what Vincent could do; whether he sent this to MLBPA, had it posted in clubhouses, or personally hand delivered copies to every plaer does not.

But why does the lack of enforceability mean that the rule should be ignored? I mean, morally (or ethically, I'm not sure of the right word), the people were still breaking a rule.

OK, I guess I wasn't responsive to your philosophical question. My point was an operational one. The lack of specificity in the "rule" makes it very difficult even to have a discussion of whether it was ignored. I'm not an expert on what steroids were actually illegal in 1991, but I have learned that it's a pretty short list. Players could have openly used any number of powerful drugs without violating the policy, such as it was. Players living outside the US could arguably use anything that was legal in their country of off-season residence without violating the policy. [EDIT: as long as they didn't bring the stuff back to the US and continue using it while here, of course.]

But my point is that there /isn't/ really a rule in that case. Fictional-Selig is screaming to the rafters that he's making this rule, damn it, but I think he's actually failing to make a rule, because part of making a rule is having the authority to make it be the case that breaking that rule is in some sense a bad thing. And Fictional-Selig lacks that authority.

Agreed. It would be like Congress passing a law saying that people in Buenos Aires must have a license to practice medicine there; it wouldn't make any sense to call this a "law," or to say that all those unlicensed doctors in Buenos Aires are "breaking the law," because Congress doesn't have the authority to regulate the practice of medicine in Argentina.

Congress doesn't have the authority to regulate the practice of medicine in Argentina.

Of course, David doesn't believe that Congress has the authority to regulate the practice of medicine in Albuquerque, either. ;-)

For the record, I think we've really been talking about laws the whole time. I think the ideas of 'law' and 'rule' are roughly similar (and overlapping), but different in detail. Institutions have laws, and they are enforced by punishments of various types. Practices or games have rules, and the consequence of breaking them is that you are no longer doing exactly the same thing; if, when you play baseball, there are four strikes to an out, you are not properly playing baseball as it is currently understood. You are playing some small variant.

Of course, David doesn't believe that Congress has the authority to regulate the practice of medicine in Albuquerque, either. ;-)

Hey, actually, I was snarkily thinking the opposite: that people probably think Congress does have the power to regulate the practice of medicine in Argentina.

Hey, actually, I was snarkily thinking the opposite: that people probably think Congress does have the power to regulate the practice of medicine in Argentina.

You're confusing "power" with right or authority

I'm sure Congress could come up with some "incentive" or another that would effectively allow it to regulate the practice of Medicine in Argentina to some extent...

The lack of specificity in the "rule" makes it very difficult even to have a discussion of whether it was ignored.

This is a good point, which I conceded above.

Greg, when lawyers think of "law", they generally include within the definition the fact that, in order to be "law", there must be a sanction or punishment; otherwise it's not "law".* The dictionary picks this up. Here is the first definition from the online Merriam Webster:

"a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority"

In short, what makes a "law" law is that it's enforceable. Now, this doesn't mean we have to apply the same standard to the more general term "rule", but I think it's common to believe that an unenforceable "rule" isn't much of a rule.

*There are legal philosophers who debate this stuff.

That's utterly at odds with what he wrote in his report.

Old grounds here, Dowd's argument is that he was told to end his investigation before he follow up any leads. And I'm at a loss as to how I'd have written any report given that all he had at that point were leads that he felt could give him something.

Now, this doesn't mean we have to apply the same standard to the more general term "rule", but I think it's common to believe that an unenforceable "rule" isn't much of a rule.

And if the only argument is that the ban on steroids wasn't much of a ban, I'm OK with that. It does seem to be the case with the current set of posters responding, so I can let this drop.

*There are legal philosophers who debate this stuff.

If it's currently debatable by the people who know about this stuff, then I can let this drop as well since I'm certainly not equipped to come up with answers.

You'd have to look at the game logs to see

Dale Stephenson did this on RSB. Quoting now:

Here's the starting pitchers who didn't get Rose's vote of confidence in 1987, through 5/13:

vs Hou 4/19 (2) Ted Power
@ SD 4/21 Mario Soto
@ SD 4/23 Tom Browning
@ Hou 4/25 Ted Power
@ Hou 4/26 Mario Soto
@ NYM 5/06 Mario Soto

And from another post with greater detail on Soto:

In 1987, when we have the
most details of Rose's betting, Soto only had six starts. Janszen
documented the bets from the beginning of the season to 5/13 (the bets
with Val/Chevashore). Soto's starts during this time:

4/21, Soto started and the Reds lost in SD, Rose did not bet.
4/26, Soto started and won in Houston, Rose did not bet.
5/01, Soto started and won in Philadelphia, Rose bet and won $2000.
5/06, Soto started and lost in New York, Rose did not bet.
5/11, Soto started and won in Cincinnati, Rose bet and won $2000.

On 5/16 Soto started and lost in St. Louis, his last start of the year.
They had stopped taking bets in New York, so this is probably no bet.

Soto's usage patterns in 1987:
4/21 -- 6 IP, 1 ER
4/26 -- 6.1 IP, 3 ER
5/01 -- 5 IP, 4 ER [Bet]
5/06 -- 4.2 IP, 3 ER
5/11 -- 5.2 IP, 2 ER [Bet]
5/16 -- 4 IP, 5 ER

No discernible pattern to me, except going downhill quickly. One can
certainly understand not betting on Soto, but Rose did risk it twice,
and won twice.

Lame. Something in my hyper-specific areas of specialization comes up, and the discussion lasts all of 25 posts? Obviously I need to change my focus to the metaphysics of ZIP codes.

Bud should definitely take a walk in a cornfield to see if he can find the ghost of Joe Jackson and set things right there too. And if robo-liquefaction of Kevin Costner occurs in the process, that can be treated as collateral damage.

Johnny Bench doesn't think much of Pete Rose. Carlton Fisk doesn't think much of Mark McGwire. I wonder what Ray Schalk thought of Joe Jackson.

Has anyone cited the 1991 memo before the Congressional hearings? Did Bud ever make the argument in 2005 that it was in force?

Yes, the memo was cc'd to the union, but there's nothing to indicate that the union actually informed players of its contents -- which amounted to a "policy" that wasn't collectively bargained.

This doesn't follow. Communication between the Union and management means that it wasn't collectively bargained?

No, the fact that it wasn't collectively bargained means that it wasn't collectively bargained.

Collective bargaining is usually between management and union officials, not between management and all members of the bargaining unit as individuals. Likewise, in most contexts, notification from management to a union is sufficient to put members of the union (and in some contexts people in the bargaining unit who are not members of the union) on notice.

If the memo had unilaterally stated that players weren't allowed to eat pizza (or take aspirin), is that something that the union officials would pass on to the members? That's my point. People have said that regardless of whether the memo was enforceable there was a moral or ethical duty of players to follow the memo. And the first step in that is to ask whether the players were even aware of the memo. And so I'm asking why the union officials would have put the members "on notice" of a "policy" that wasn't collectively bargained.

Greg, quoting from the arbitrator who made many of the rulings referred to here:

Some may say that I have held the Commissioner to a higher standard than that of an ordinary employer. he fact is that a Commissioner is not an employer, at least of players or managers, even though some Commissioners think they are. As stated in Howe: (where he found Vincent's ruling "fundamentally unfair" --RNJ)

what bears repeating... is that the Commissioner does not stand in the isolated position of an individual employer. He can bar the employment of a player at any level of the game regardless of the opinion or wishes of any one of a great number of potential employers. That is an awesome power. With it comes a heavy responsibility, especially when that power is exercised unilaterally and not as the result of a collectively bargained agreement as to the level of sanctions to be imposed for particular actions.

If the memo had unilaterally stated that players weren't allowed to eat pizza (or take aspirin), is that something that the union officials would pass on to the members? That's my point. People have said that regardless of whether the memo was enforceable there was a moral or ethical duty of players to follow the memo. And the first step in that is to ask whether the players were even aware of the memo. And so I'm asking why the union officials would have put the members "on notice" of a "policy" that wasn't collectively bargained.

Some people are treating this as though an employer sent a memo to his employees, and so the question of whether they read it isn't really relevant. But it's important to remember that Vincent wasn't the employer here; he's the baseball commissioner. Players are employed by teams, not MLB. So the fact that the commissioner sent a memo to the teams in no way means that players saw it or were bound by it.

EDIT: Coke to Ron.

75. Steve Treder Posted: January 26, 2010 at 06:43 PM (#3447235)
Somewhat related, is there any evidence supporting the theory of balls changing in 93-94?

The sudden across-the-board increase in power stats across both leagues can scarcely be explained by anything other than a more resilient ball. All of the other things (the parks, the strike zone, the bats, weight-trained hitters (with or without steroids), etc. etc.) still applied of course, but none of those things can explain a sudden league-wide shift

Every time in history there was an overnight change in offensive level, it was due to the ball or a rule change. This time, however, we are supposed to believe the run environment changed due to huge numbers of people suddenly deciding to take PEDs and also taking them in an effective way (as opposed to an ineffective way of building bulk like Ruben Sierra)? I don't get it.

Come to think of it, I think I can understand the steroid reference in the Vincent memo now. Steroids had just become scheduled and the commissioner had a limited ability to punish users of any scheduled substance.

In practical terms he could certainly require on demand testing (for the remainder of their career) of anybody whose use became a matter of public record. And that they get some sort of counseling.

Note that the memo in itself changed nothing. Also, for Andy, the list of players required to submit to on demand testing includes some amphetamine abusers -- though it's mostly cocaine users.

75. Steve Treder Posted: January 26, 2010 at 06:43 PM (#3447235)
Somewhat related, is there any evidence supporting the theory of balls changing in 93-94?

The sudden across-the-board increase in power stats across both leagues can scarcely be explained by anything other than a more resilient ball. All of the other things (the parks, the strike zone, the bats, weight-trained hitters (with or without steroids), etc. etc.) still applied of course, but none of those things can explain a sudden league-wide shift.

OMG. Winner, winner, chicken dinner.

Dude, I thought you were well aware that I long ago capitulated to the wisdom of your theory about the change in ball resiliency in 1993-94. Rest assured that it wasn't your velvety-smooth articulation that did it, it was instead the simple weight of the evidence. :-)

Ladies and Gentleman it's time to play everyone's favorite game: Name the Logical Fallacy!

Ladies and Gentleman it's time to play everyone's favorite game: Name the Logical Fallacy!

Okay. I name it "Andy."