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Friday, November 18, 2005

THT: Breaking Down the New Joint Drug Agreement

Analysis by your’s truly. See comments below in short interviews with Fay Vincent, Buzzie Bavasi, Andrew Zimbalist, and Marvin Miller

Depending on your point of view, earlier this week:

• Clean living triumphed over drug abuse.
• Cheaters were shown the door.
• Management beat the union.
• Congress pushed baseball (read: the union) into a corner.
• The Fourth Amendment was trampled under foot.

For the second time in the past year, history repeated as management and the Players’ Union broke the normally sacred seal of the Collective Bargaining Agreement and altered the Joint Drug Agreement. This time, however, the changes to the contract are significant in terms of punishment, reach, and scope. If ratified, the testing policy and penalties for performance enhancing drugs, as well as amphetamines, moves Major League Baseball’s policy into a sphere more closely aligned with Olympic testing, and will be the benchmark that other professional sports will be gauged by.

While Commissioner Bud Selig has been vocal about placing such a policy in place as performance enhancing drugs pose a “fundamental challenge to the integrity of the game,” the real hammer in the decision was the threat of several pieces of legislation by Congress, most notably the Professional Sports Integrity and Accountability Act, which seek to enforce more stringent penalties for steroid use across all professional sports.

Comments

Noted sports economist Andrew Zimbalist remarked that, “[The agreement] is an important step forward, but one has to remain concerned that several substances, such as
HGH, are not detectable by urine tests.”

Former commissioner Fay Vincent responded by saying, “I think Congress played a major role in the decision, and I think it’s a fine program. Opening up the contract is very controversial thing. From baseball’s point of view, opening up the contract is a dangerous precedent. baseball’s, historically taken care of their own house, and we don’t need Congress dictating matters.”

Buzzie Bavasi, who was general manager of the Dodgers, president of the Padres, and executive vice president of the Angels said, “I, like many other former GMs, am highly impressed with the job Bud Selig and Don Fehr have done regarding the drug problem. During my Dodger days both in Brooklyn and Los Angeles my players were lucky if they could afford a beer, no less steroids. The problem came about when player salaries reached a level where one and all could afford a drug or two. I am sure that Mr. Fehr and Mr. Orza will attest to this.”

Not surprisingly, the most outspoken statements came from former Executive Director of the Players’ Association, Marvin Miller. “[Reopening the contract] is foolishness in the extreme,” he said. “None of this of this had to happen. A contract ought to be a sacrosanct agreement that cannot be abrogated. And, the very act of one party asking another to abrogate what was derived in good faith, is something to be condemned in very certain terms. It is unprincipled on the part of Selig and the people he represents.” When asked if he felt the threats by members of Congress to pass law imposing testing penalties had teeth, Miller’s reply was, “In my opinion [Congress’ threat] had no teeth.” Asked if he felt the Players’ Association been weakened by this decision, Miller replied, “No question about it.”

Maury Brown Posted: November 18, 2005 at 03:37 PM | 62 comment(s) Login to Bookmark
  Tags: business

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   1. Mike Emeigh Posted: November 18, 2005 at 03:53 PM (#1736968)
It's all well and good for Marvin Miller to take the high road. But from a PR standpoint, the MLBPA has been on the defensive from day 1, and Don Fehr risked the erosion of whatever public support he might have had from the fan base if he didn't take some action. With the CBA set to expire shortly, I don't think Fehr wanted to go into those negotiations with the public perception that he stonewalled a necessary and desirable change on the basis of what might appear to most people to be a technicality. The MLBPA had a couple of awful choices confronting it, and I don't blame Fehr and the leadership for taking the approach that they did.

-- MWE
   2. cercopithecus aethiops Posted: November 18, 2005 at 04:16 PM (#1736999)
Depending on your point of view, earlier this week:

• Clean living triumphed over drug abuse.
• Cheaters were shown the door.
• Management beat the union.
• Congress pushed baseball (read: the union) into a corner.
• The Fourth Amendment was trampled under foot.


I vote "none of the above"

Look, they've been testing for two years. That data must mean something, although what it means is certainly arguable. Taken at face value, it means that steroids are a very minor problem in MLB. If you don't believe that, then you have to think that the testing is woefully ineffective in detecting the cheaters. Aside from PR or the owners finally winning a battle with the players, what actual benefits will accrue from tougher sanctions if people can beat the tests so easily?
   3. Maury Brown Posted: November 18, 2005 at 04:59 PM (#1737071)
Ignoratio, I'm in agreement with you on this in principle. You mention "on the face of it" and I think that's key. The question is, has the testing been a deterrent? I would say that the answer is yes, to an extent.

With the increases in penalties for steroids, the question now will be, "Do I risk it with some untested designer drug?"

The larger issue that is not getting the major play is the testing for amphetamines. The number of players using amphetamines is most likely substantially higher than those using steroids. It's also something that has been a part of baseball's culture for decades, and generations.

That's the area that I think we're going to see more visibility. That's what the new topic will be in the press.
   4. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: November 18, 2005 at 05:19 PM (#1737100)
The number of players using amphetamines is most likely substantially higher than those using steroids. It's also something that has been a part of baseball's culture for decades, and generations.

The new question for baseball archaeologists: At what point in time did photographs of the bench and the bullpen between innings cease to reveal the majority of players nodding off?

And how do the OPS+ and ERA+ stats of those poor chumps compare to those who were seen running around like the Energizer Bunny?

Those two questions alone should be enough to give Chris Dial something to do for the next 100 years.
   5. cercopithecus aethiops Posted: November 18, 2005 at 05:26 PM (#1737111)
At what point in time did photographs of the bench and the bullpen between innings cease to reveal the majority of players nodding off?

I'd guess about the same time as they ceased to show all of the players who were awake smoking cigarettes.
   6. Maury Brown Posted: November 18, 2005 at 05:28 PM (#1737115)
“[Reopening the contract] is foolishness in the extreme,” he said. “None of this of this had to happen. A contract ought to be a sacrosanct agreement that cannot be abrogated. And, the very act of one party asking another to abrogate what was derived in good faith, is something to be condemned in very certain terms. It is unprincipled on the part of Selig and the people he represents.”

I talked to Miller for roughly 20 min. on this topic. There's a whole lot more that I will publish at some point. He's simply an amazing person to talk with, regardless of whether you agree with his position or not.
   7. Joey B.: posting for the kids of northeast Ohio Posted: November 18, 2005 at 05:56 PM (#1737182)
If a contact is modified by mututal agreement between two parties, it's not an "abrogration". It's an amendment, or a modification.

I've said it before and I've said it again: Miller is like the tragic veteran who can't readjust to life after the war is over. He's universally hailed for his remarkable achievements in securing rights for professional athletes, but he'll never be able to relax and enjoy all of his accomplishments because of his permanent "total war" mentality against the owners.
   8. Mike Emeigh Posted: November 18, 2005 at 06:52 PM (#1737297)
To be honest, I don't think MLB really wanted to revisit this issue, either, and if McCain and Bunning hadn't forced Selig's hand they wouldn't have.

-- MWE
   9. _ Posted: November 18, 2005 at 07:09 PM (#1737329)
Miller is like the tragic veteran

Actually, I think what happened is that somebody called Marvin Miller to find out what he thought, and Miller told him, that's all. Miller's not going around picking fights with baseball trying to get his name in the paper. He really is well-versed in constitutional law and labor law, and these are issues he genuinely cares about on principle.
   10. sunnyday2 Posted: November 18, 2005 at 07:11 PM (#1737334)
I thought the agreement was focused on steroids, not joints.
   11. Dewey, Soupuss Not Doomed to Succeed Posted: November 18, 2005 at 07:18 PM (#1737350)
To be honest, I don't think MLB really wanted to revisit this issue, either, and if McCain and Bunning hadn't forced Selig's hand they wouldn't have.

Exactly.

I don't understand how this is a big victory for management, other than the precedent of re-negotiating the CBA, something I doubt we'll see for other issues.

The important thing for MLB was that they are seen to be doing something, not that they actually have a policy with teeth. Stars getting busted is not exactly good for MLB's bottom line.
   12. Joey B.: posting for the kids of northeast Ohio Posted: November 18, 2005 at 08:01 PM (#1737413)
Actually, I think what happened is that somebody called Marvin Miller to find out what he thought, and Miller told him, that's all. Miller's not going around picking fights with baseball trying to get his name in the paper. He really is well-versed in constitutional law and labor law, and these are issues he genuinely cares about on principle.

I understand all of this, and I'm not definitely questioning the man's intellect or his principle, nor am I denigrating what he's accomplished.

I stand by my opinion though that Miller is unable to adjust to the new reality and move on. Things have changed a lot in baseball from the Curt Flood days. The overwhelming majority of players will be thankful for these new tougher rules, but he's afflicted with the idea that if the owners also like something that by definition it has to be bad, and therefore there should be a war over it.

These new rules are a victory for the game and all the honest players in it, but Miller is too much of an extremist to get it.
   13. Dewey, Soupuss Not Doomed to Succeed Posted: November 18, 2005 at 08:07 PM (#1737426)
he's afflicted with the idea that if the owners also like something that by definition it has to be bad, and therefore there should be a war over it.

I don't think he thinks it has to be bad, he probably just thinks the owners should give up something for it.

For Miller and the union, this is a collective bargaining issue, plain and simple. They saw steroids testing as just another chip that they could force the owners to give something up for at the table, not as something that was intrinsically good or bad. For them, this was no different than salary arbitration or minimum salary or luxury taxes.
   14. AROM Posted: November 18, 2005 at 09:01 PM (#1737511)
the New Joint Drug Agreement

I thought this was about banning steroids, not joints.

Seriously though, I agree with you Joey. I understand that part of collective bargaining is that when management wants something, the union should get something in return.

Miller doesn't seem to get that the union (at least the majority of players in it) did get something they want: A new steroid agreement.
   15. Joey B.: posting for the kids of northeast Ohio Posted: November 18, 2005 at 09:04 PM (#1737522)
I don't think he thinks it has to be bad, he probably just thinks the owners should give up something for it.

For Miller and the union, this is a collective bargaining issue, plain and simple.


Perhaps, but Miller didn't say that he felt the owners should have been forced to give something up, he said that a contract is a "sacrosanct agreement" that should never be modified under any circumstances. If he feels otherwise than he should say so.

I have no doubt at all that for Miller and the union lawyers steroids is just another bargaining chip to be used in hardball negotiations, just like pretty much everything else. But the union lawyers aren't under pressure at all to take possibly dangerous drugs in order to compete at their jobs. For the players (the people whose best interests the union lawyers are supposed to represent), this is at least partly a health and safety issue. Numerous players have made it quite clear in public that they don't want to feel pressured into taking drugs in order to compete on an equal playing field. I don't think Marvin Miller is all that concerned if a minor leaguer dies from an overdose trying to get to the majors; he looks at things from a big-picture perspective. It hits a lot closer to home for the players themselves though.
   16. David Nieporent (now, with children) Posted: November 18, 2005 at 09:07 PM (#1737531)
Miller doesn't seem to get that the union (at least the majority of players in it) did get something they want: A new steroid agreement.
I don't know what the basis is for claiming that a majority of players favor this harsh punishment schedule over the more reasonable one that they had agreed to just last year, let alone the one that their representatives negotiated with the owners and that they approved just a few years ago.
   17. RoyalsRetro (AG#1F) Posted: November 18, 2005 at 09:08 PM (#1737533)
Is it just me or are penalties still too light? I mean none of the penalties call for having children taken away from players!
   18. Slinger Francisco Barrios (Dr. Memory) Posted: November 18, 2005 at 09:12 PM (#1737540)
I stand by my opinion though that Miller is unable to adjust to the new reality and move on. Things have changed a lot in baseball from the Curt Flood days. The overwhelming majority of players will be thankful for these new tougher rules, but he's afflicted with the idea that if the owners also like something that by definition it has to be bad, and therefore there should be a war over it.

There's no "new reality". The only reality there is is labor vs. management. There is an illusion of newness in what is at issue, but it's just different clothing on the same old mannequins.
   19. Dewey, Soupuss Not Doomed to Succeed Posted: November 18, 2005 at 09:12 PM (#1737541)
Perhaps, but Miller didn't say that he felt the owners should have been forced to give something up, he said that a contract is a "sacrosanct agreement" that should never be modified under any circumstances.

The mechanism the union has to get the owners to give something up is the CBA.

I think the feeling the union had was, "look, we gave up a lot in the last CBA. If you want to re-open the damn thing and ask for more, put your money where your mouth is." They failed to recognize that steroids testing was a special case.
   20. Dizzypaco Posted: November 18, 2005 at 09:13 PM (#1737543)
I don't agree that this could be a useful bargaining chip for the players. I agree with Mike on this - I don't think management cares about this issue at all. And if they don't care about this issue, why would they give something up they do care about to get stricter penalties?
   21. Dewey, Soupuss Not Doomed to Succeed Posted: November 18, 2005 at 09:14 PM (#1737544)
I don't know what the basis is for claiming that a majority of players favor this harsh punishment schedule over the more reasonable one that they had agreed to just last year, let alone the one that their representatives negotiated with the owners and that they approved just a few years ago.

I don't know about last year's agreement, but the union had a lot of dissention in the ranks about the steroid agreement that was in the original CBA. They finally had to tell their reps to go around and tell their teammates to shut up about the whole thing.
   22. Dewey, Soupuss Not Doomed to Succeed Posted: November 18, 2005 at 09:16 PM (#1737546)
I don't agree that this could be a useful bargaining chip for the players. I agree with Mike on this - I don't think management cares about this issue at all. And if they don't care about this issue, why would they give something up they do care about to get stricter penalties?

Because public pressure forces them to?

I don't think the MLBPA realised that MLB would rather drag them before congress, risk their anti-trust exemption, and leave the issue open for public debate than give something up at the bargaining table.
   23. Joey B.: posting for the kids of northeast Ohio Posted: November 18, 2005 at 09:28 PM (#1737580)
I don't think the MLBPA realised that MLB would rather drag them before congress, risk their anti-trust exemption, and leave the issue open for public debate than give something up at the bargaining table.

Disingenuous. MLB didn't drag anyone before Congress. Congress dragged players, former players, and management before Congress, first because of the remarkable claims in Jose Canseco's book (initially ridiculed as lies), and then later on because Rafael Palmeiro was a big dumbass who got caught and exposed as a liar who vindicated Canseco's allegations.

If Marvin Miller is going to be irked at anyone in this world, frankly he should be irked at Rafael Palmeiro for being such a big stupid, lying idiot who blew the whole lid off the entire charade.
   24. Dewey, Soupuss Not Doomed to Succeed Posted: November 18, 2005 at 09:36 PM (#1737594)
MLB didn't drag anyone before Congress.

Well, I meant let the whole thing get to a congressional hearing.

I think the MLBPA saw steroids as MLB's problem, not the union's problem, and that was their big mistake.
   25. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: November 18, 2005 at 10:51 PM (#1737719)
There's no "new reality". The only reality there is is labor vs. management. There is an illusion of newness in what is at issue, but it's just different clothing on the same old mannequins.

But this is exactly what was shortsighted about Fehr's framing of the issue. He failed utterly to take any opinion seriously other than his own, and the views of whatever number of players there were who were equally clueless as to what was about to come down upon them. The traditional "labor vs. management" dialectic had little if anything to do with the key factor in forcing this agreement, which was the Congressional jawboning, backed by a complete public indifference to the players' "privacy" concerns.

You don't win many battles by fighting yesterday's wars.
   26. Maury Brown Posted: November 18, 2005 at 11:05 PM (#1737740)
I think it boils down to looking out for the players' rights. This is, after all, a Union we're talking about. If it comes down to what's best in the interest of the public or the best interest of the players (read: Union), the Union will look to protect their constituency every time.
   27.   Posted: November 18, 2005 at 11:31 PM (#1737780)
Jeff Blair, aka Canada's only good baseball writer, had an interesting article yesterday about amphetamines. An excerpt:

Amphetamines was the elephant in the room all along. You think ridding the game of steroids is going to affect performance? Hah. Wait until you see the dog days of August played out without the benefits of 'beanies' or 'greenies' or 'clubhouse coffee.' I'm going to say what a whole lot of people are thinking: A cleaner game is not necessarily going to be a better game, and I wonder how many fans realize it.


Thought it was an interesting thought. The article is here
   28.   Posted: November 18, 2005 at 11:32 PM (#1737781)
Damn you, Live Preview. Foiled again.
   29. Maury Brown Posted: November 18, 2005 at 11:44 PM (#1737807)
All fixed better for you LJF.
   30. Mike Emeigh Posted: November 18, 2005 at 11:46 PM (#1737810)
The traditional "labor vs. management" dialectic had little if anything to do with the key factor in forcing this agreement, which was the Congressional jawboning, backed by a complete public indifference to the players' "privacy" concerns.

Exactly. That doesn't make those concerns any less valid, however, nor does it mean that the MLBPA should not have been vigilant in protecting those concerns. I don't think that Don Fehr deserves to be criticized for the approach that he took - as Maury noted, it's his job to protect the right of the players *as a group* - but in today's media climate, there was little chance that it could succeed, and I think Fehr did very well to limit the damage as much as he did. There are still some safeguards to protect the players in the revised agreement.

-- MWE
   31. Mike Emeigh Posted: November 18, 2005 at 11:47 PM (#1737812)
I'm going to say what a whole lot of people are thinking: A cleaner game is not necessarily going to be a better game, and I wonder how many fans realize it.

Not enough.

-- MWE
   32. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: November 18, 2005 at 11:49 PM (#1737814)
I think it boils down to looking out for the players' rights. This is, after all, a Union we're talking about. If it comes down to what's best in the interest of the public or the best interest of the players (read: Union), the Union will look to protect their constituency every time.

Totally valid point, but sometimes it pays for unions to look at the larger issue, which in this case was getting Congress off baseball's back. And it's not as if the public was exactly looking at this from a Norma Rae perspective.
   33. Maury Brown Posted: November 18, 2005 at 11:56 PM (#1737829)
Totally valid point, but sometimes it pays for unions to look at the larger issue, which in this case was getting Congress off baseball's back. And it's not as if the public was exactly looking at this from a Norma Rae perspective.

And I'm with you on this, so much so that I brought this up with Miller last year. More Miller conversation:
BizBall: Do you feel that the public’s appetite for MLB would have been severely diminished if a lockout or strike would have occurred in 2002?

Miller: I think temporarily, but I am not one of those who ever believed the propaganda of labor disputes would be the cause of a permanent loss of fans. It never has been and I doubt it ever will.

BizBall: Is the public’s concern something that comes to the negotiating table, or is the overriding concern of a representative of his or her labor Union to get as much for their respective constituency as possible?

Miller: I think you have to bring it down to the cases. For example, in all of those years when I was with the Steel Workers Union, there probably was not a single dispute that wasn’t settled in the White House, and the reason, of course, was that a nationwide steel dispute heavily impinged on the nation’s economy.

When steel went down in those days, pretty soon so did automobiles and so did residence and building construction and onward, and you were dealing with widespread increasing unemployment. So, it was both a public issue and a government issue. In that kind of situation, public opinion is extremely important because sooner or later, after it ends up or gets to the White House, pretty soon the Congress is there, and that becomes a serious matter.

I have never had that kind of a feeling in baseball even though, if you were to judge by the amount of ink that the media spent on it, you would assume it was a matter of great public concern. But, when you examined it, it really wasn’t. My concern in those days was not the public relations aspect in the same sense that a steel public relations reaction in steel was. My concern in those days was that if this gets loud enough, the players will be affected and that’s all. Because I never considered it rising to the level of a national emergency dispute like the mega-steel dispute and nor would I consider that the so called public relations damage would be more than fleeting and small.
   34. Maury Brown Posted: November 19, 2005 at 12:40 AM (#1737927)
Maybe I should pose this question to quorum...

Is the Union weaker due to the Agreement?
   35. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: November 19, 2005 at 12:54 AM (#1737961)
Is the Union weaker due to the Agreement?

No. I think Kevin has just about the right take on this.
   36. Maury Brown Posted: November 19, 2005 at 12:58 AM (#1737971)
In fact, they can use this when they negotiate the next agreement. They can say to the owners "Hey, no way you can't say we're unreasonable or uncompromising. We even went so far as to break into the last one just to satisy you guys on the drugs issue."

Maybe. The phrase, "What have you done for me lately?", might have some relevancy in this. Remember the last time the Union bent, the owners threw collusion back at them.
   37. Backlasher Posted: November 19, 2005 at 03:22 AM (#1738129)
Is the Union weaker due to the Agreement?

I would say no.


The biggest problem the Union had was prior to the Agreement. The rank and file were becoming fractured over the steroid issue. You had a large percentage that favored some steroid controls, and you had the Bonds Boys. The union reps were stuck between a rock and a hard place. They did not want to give away certain benefits of their labor agreement, but at the same time they had to respond to their constituency. They moved too slow, missed their best opportunity to leverage the situation, and ended up causing dissent among the ranks.

The opportune moment was during the last CBA. At that point, they could have traded testing, something that the owners and players were desirous of, for some other benefit. Even if it was an extra $5.00 meal money, it would have been a better return than what they ended up with.

But, when you examined it, it really wasn’t. My concern in those days was not the public relations aspect in the same sense that a steel public relations reaction in steel was. My concern in those days was that if this gets loud enough, the players will be affected and that’s all. Because I never considered it rising to the level of a national emergency dispute like the mega-steel dispute and nor would I consider that the so called public relations damage would be more than fleeting and small.


Then one of three things are off in this exchange. Either Miller totally misred the current situation, Miller answered the question in the wrong way, or the wrong question was asked. Because the reality is that this issue did become a matter of civics. Of course, the effect of the situation doesn't have the same ramification of a nationwide steel streak in the old glory days. But sports doping did become a matter of public interest.

And as already discussed, Fehr and Orza read it all wrong. They presumed the public would stay out of it, that they didn't need to have a sense of urgency during the last labor negotiation, so they didn't sell when they had a chance to get something in return. But two things happened: The Balco boys skewered their brethren right through the ass, and Congress decided to play a game of chicken with the union. And Fehr and Orza just don't have the juice to screw with Congress.

And that is the issue that begs exploring with Miller. How and why did things change with regard to the public angle? Was there something that he would have done based on the changing dynamic? Given the circumstances, how would you minimize the loss or maximize it into a gain?

Miller is a person whose insight would have been worthwhile. He was a highly successful labor lawyer with direct experience in the industry. I would have loved to get inside his head for some depth and background on this one. For a discussion of tactics; for a discussion of the persons involved.

Because the key questions about Fehr and Orza are ones of tactics and timing. Their duty is crystal.

• The Fourth Amendment was trampled under foot.


Goodness gracious. Is it the end of human life as we know it too. I wonder if I'll catch a dictionary flame on describing that as hyperbole or sensationalism. Because that certainly brings a smile to my face.

I'll try to see if I can help. When the discussion was with regard to Congressional Action, the fourth amendment was a reasonable topic of discussion. When we are talking about labor agreements, it gets a little strained.

I wish it was developed rather than just repeated a couple of times. I'm interested in the underlying theory: MLB is a state actor; The Fourth Amendment prohibits Congress from INTRODUCING legislation.

I mean its certainly a reasonable point of view that workplace privacy was dealt another blow, but The Fourth Amendment was trampled.

Dial is always talking about cleaning one's on house; I'm interested to see the reaction to this hyperbole/sensationalism/____________.
   38. cercopithecus aethiops Posted: November 19, 2005 at 03:36 AM (#1738143)
Miller totally misred the current situation

Did you miss the part about the quote being from last year?
   39. Backlasher Posted: November 19, 2005 at 04:02 AM (#1738164)

Did you miss the part about the quote being from last year?


LOL. Did you miss this:

Because the reality is that this issue did become a matter of civics. ... sports doping did become a matter of public interest.

Or do you just think,

"He gave the right answer based on the present information."

Or did the chance to get in a gotcha just overwhelm you?

Which kind of amazes me because I didn't go after Miller that hard. I left open the possibility that instead of being wrong, he just answered wrongly, or he was posed the wrong question.

I have no bone with Miller. I would love to hear what he has to say on baseball negotiations. If CourtTV hired him to do a play-by-play, I would probably watch.
   40. Never Give an Inge (Dave) Posted: November 19, 2005 at 04:41 AM (#1738196)
They did not want to give away certain benefits of their labor agreement, but at the same time they had to respond to their constituency.

What were the benefits they didn't want to give away? Just the lack of intrusive testing, or am I missing something?

And as already discussed, Fehr and Orza read it all wrong. They presumed the public would stay out of it, that they didn't need to have a sense of urgency during the last labor negotiation, so they didn't sell when they had a chance to get something in return. But two things happened: The Balco boys skewered their brethren right through the ass, and Congress decided to play a game of chicken with the union. And Fehr and Orza just don't have the juice to screw with Congress.


I think the turning point was pretty clearly when Bonds became "too good" a hitter - good on a historic scale only matched by 1 or 2 other batters in baseball history. I think the stats he was putting up, the records he was breaking, and the way the game became distorted when he was at bat, just made people uncomfortable - he was defying the previously understood bounds of physical performance, and doing so after establishing a previous level of achievement that was significantly lower (if still amazing). Really, the 2001 home run race as a whole raised too many questions to be ignored (57 HRs from Luis Gonzalez???). And seeing things like Pujols in 2003 getting trounced in the MVP voting was a little surreal, to me at least. I think that all brought increased scrutiny to the whole issue and forced people to start looking at what had been happening in baseball more critically. The fact that it was Barry Bonds, who a lot of writers and fans already disliked, didn't help, but I'm not sure whether that was critical.

Maybe it was inevitable that someone like Bonds--arguably the game's best hitter before he started 'roiding--would start roiding and turn the game on its head like that. But I'm not sure I'd blame Fehr and the MLBPA for not foreseeing it. I mean, the unexpectedness of it all was precisely what caused it to have the effect it did--if people had previously thought such a performance was possible they wouldn't have been as discomforted by it.
   41. Maury Brown Posted: November 19, 2005 at 07:32 AM (#1738301)
I left open the possibility that instead of being wrong, he just answered wrongly, or he was posed the wrong question.

The question is presented as I asked it. If there's one thing I can say about discussing matters with Miller it is that he's extremely deliberate in his answers, and will ask for clarification if there's any sense of ambiguity in the questions.

By the way... where is there anything discussing "sports doping" in my exchange with Miller? His answer was in reference to the players striking over labor issues that had nothing to do with drug testing.
Goodness gracious. Is it the end of human life as we know it too. I wonder if I'll catch a dictionary flame on describing that as hyperbole or sensationalism. Because that certainly brings a smile to my face.

I couldn't agree more. Certainly that's my impression when I hear, "The 4th Amendment has been trampled under foot". My point was that there are divergent views on the Agreement, and certainly that’s been one of them….Not that there hasn't been a good case of "my rights have been impungned upon" here [/ducks in and peeks at the nanny thread]
   42. North Side Chicago Expatriate Giants Fan Posted: November 19, 2005 at 09:54 AM (#1738354)
Seriously, though. If Congress can suddenly stumble upon such effectiveness, can we get McCain pissed off about the DH?
   43. The Final Word Posted: November 19, 2005 at 03:11 PM (#1738461)
Who do you think drinks more prune juice, Marvin Miller or Sandy Alderson?
   44. Maury Brown Posted: November 19, 2005 at 05:34 PM (#1738541)
Something I had not considered popped up in an article in today's Pioneer Press entitled, New steroids policy might help Rincon.

Here's the key section:
Under the new, stricter steroids policy that players and owners agreed to Tuesday, Rincon and the other 11 players who were suspended in 2005 would be treated as first-time offenders if they test positive again.

"It basically puts Juan on equal footing with everybody else," said Ed Setlik, Rincon's agent. "It's not like winning the case, but it's a clean slate. But I don't want anyone to interrupt this as we see it as vindication. We're just beneficiaries of something that was negotiated, and we're obviously thankful."
   45. cercopithecus aethiops Posted: November 19, 2005 at 06:04 PM (#1738580)
Or do you just think,

"He gave the right answer based on the present information."

Or did the chance to get in a gotcha just overwhelm you?


Actually, I just wanted to know if you realized that you were responding to a year-old quote. Maybe you should stop assuming that everyone is always trying to get in a dig.
   46. David Nieporent (now, with children) Posted: November 19, 2005 at 06:04 PM (#1738584)
I don't know about last year's agreement, but the union had a lot of dissention in the ranks about the steroid agreement that was in the original CBA. They finally had to tell their reps to go around and tell their teammates to shut up about the whole thing.
"A lot of dissent" is not the same thing as a majority. That's the claim I was challenging.
   47. Maury Brown Posted: November 19, 2005 at 06:16 PM (#1738603)
Actually, I just wanted to know if you realized that you were responding to a year-old quote. Maybe you should stop assuming that everyone is always trying to get in a dig.

That always seems to sail past some. Yes, the interview section quoted here was from July of 2004. No dig intended.
   48. Sam M. Posted: November 19, 2005 at 06:16 PM (#1738604)
Maybe it was inevitable that someone like Bonds--arguably the game's best hitter before he started 'roiding--would start roiding and turn the game on its head like that. But I'm not sure I'd blame Fehr and the MLBPA for not foreseeing it.

Great post -- very thoughtful and interesting. Two reactions. First, to me it's a shame that Fehr would have been making his decisions in this way -- foreseeing (or not foreseeing) whether circumstances would force his hand. It's a pipe dream, I know, but part of me just wishes he would have accepted a stronger policy because it actually was in the long-term best interests of the game, and most crucially the vast majority of the players.

And second, even if he couldn't foresee it before Bonds exploded and changed the perceptions of the game, shouldn't he have been able to do so afterwards? From that point on, he was fighting a defensive battle trying to hold back the tide. Inevitably, the pressure built up behind the dam he was defending, until Congress stepped in and made it simply unsustainable. Maybe I'm doing some hindsight-assisted second-guessing here, but I think it's fair to suggest Fehr and Orza at some point should have anticipated this and made a decisive move to get ahead of the curve. To put it in Katrina terms, they had a Level 3 levee and there came a point where it was evident they were facing a Level 5 hurricane.
   49. David Nieporent (now, with children) Posted: November 19, 2005 at 06:19 PM (#1738608)
Is the Union weaker due to the Agreement?
Of course. Any time one side makes a significant concession in exchange for nothing, it sets a lousy precedent. And when that happens in the course of giving up something it has already negotiated, it's even worse.
   50. Sam M. Posted: November 19, 2005 at 06:24 PM (#1738616)
Is the Union weaker due to the Agreement?

Yes, but I wouldn't overstate this. They had to cave on this because of the pressure from Congress. Period. That gave the owners all the leverage, and no incentive/need to compromise.

Selig to Fehr: "We'll either get what we want from you 'voluntarily,' or Congress will impose it. It's no never mind to us."

MLB could stand incredibly firm because they could achieve their goals without any real cost to the owners. That is not going to be true generally, unless Bunning has decided he wants to be de facto Commissioner on all issues and not just steroids.
   51. David Nieporent (now, with children) Posted: November 19, 2005 at 06:37 PM (#1738636)
I wish it was developed rather than just repeated a couple of times. I'm interested in the underlying theory: MLB is a state actor; The Fourth Amendment prohibits Congress from INTRODUCING legislation.
I mean its certainly a reasonable point of view that workplace privacy was dealt another blow, but The Fourth Amendment was trampled.
How about: MLB did this because of government threats.

If Congress threatened to penalize any baseball team that employed a Catholic, and then to head off the law MLB fired all its Catholic employees, are you going to argue that Free Exercise wasn't trampled on because MLB isn't a state actor? Are you going to argue that Free Exercise wasn't trampled on because Congress hadn't actually passed the law yet, but only threatened to do so?

There's a "chilling effect", to borrow a term of art from free speech jurisprudence.

I wouldn't say that the courts could step in before the law was actually passed -- but that is a question of procedure, not a defense of what happened.
   52. Sam M. Posted: November 19, 2005 at 06:43 PM (#1738645)
If Congress threatened to penalize any baseball team that employed a Catholic, and then to head off the law MLB fired all its Catholic employees, are you going to argue that Free Exercise wasn't trampled on because MLB isn't a state actor?

"Trampled on" is a vague term. I'd certainly agree that the FEC's underlying values were massively offended. But I'd also say that MLB would have some responsibility to stand up to the threat and say to Congress, "(Forget) you. Go ahead and pass your law, and we'll join the MLBPA and every Catholic player in the American, National, and minor leagues and challenge it the very next day. The injunction will be entered the same day." If they didn't do that, I'd be at least as critical of them as I would of Congress.

If the MLBPA really believed that anything Congress threatened to do violated the Fourth Amendment, it could have done exactly that -- except it would have said it to Congress AND the owners. Obviously, they thought either that the law would have been constitutional (making the threat to challenge it empty), or at least that there was enough doubt that it was a lot smarter to fold their tent.
   53. cercopithecus aethiops Posted: November 19, 2005 at 07:29 PM (#1738681)
I was responding to BL, Maury, but thanks for the clarification. And I wasn't trying to make some big point in Miller's defense about how much things have changed between July 2004 and November 2005. I just wanted to know if BL was intentionally imposing the context of the November 2005 steroids agreement on Miller's July 2004 comments in response to questions that had nothing to do with steroids. Or if, in the alternative, he just read the thread too fast and mistakenly assumed that Miller's comments were more current and topical. I'd still like to know.
   54. cercopithecus aethiops Posted: November 19, 2005 at 07:33 PM (#1738685)
And while I'm at it BL, I'm not necessarily suggesting that it would be unfair to take Miller's 2004 comments and test how they stand up in the current context. After all, if one claims to be guided by certain general principals, then those principals should be applicable in a variety of changing contexts. I'm just trying to understand if that's what you were getting at, or if you simply made a mistake.
   55. David Nieporent (now, with children) Posted: November 19, 2005 at 09:22 PM (#1738755)
"Trampled on" is a vague term. I'd certainly agree that the FEC's underlying values were massively offended. But I'd also say that MLB would have some responsibility to stand up to the threat and say to Congress, "(Forget) you. Go ahead and pass your law, and we'll join the MLBPA and every Catholic player in the American, National, and minor leagues and challenge it the very next day. The injunction will be entered the same day." If they didn't do that, I'd be at least as critical of them as I would of Congress.
Does something I've said make you think I'm not critical of MLB?

As I've said before, I'm okay with MLB and the MLBPA <u>freely</u> negotiating a steroid testing regimen. I don't care about steroids, but if they do, that's fine with me. My problem is that this was negotiated at gunpoint, with MLB cheering Congress on.

If the MLBPA really believed that anything Congress threatened to do violated the Fourth Amendment, it could have done exactly that -- except it would have said it to Congress AND the owners. Obviously, they thought either that the law would have been constitutional (making the threat to challenge it empty), or at least that there was enough doubt that it was a lot smarter to fold their tent.
I don't think it's constitutional, but with the current Supreme Court, I'm not sure I'd risk it, either. As I said in another thread, the MLBPA's job is to make the best of a bad situation for its members, not to make a last stand on principle. This is a CBA provision, and can be changed down the road. But if they allow a law to pass, and if the courts uphold it, they can never fix it.

Given Vernonia and Earls, I think it would be very risky for them to gamble on a legal strategy. Vernonia only got three votes for the fourth amendment, and one of those (O'Connor) will be gone by the time this case could reach the Court. Earls managed four votes -- again, including O'Connor. Between those cases and Raich, it's clear that just about any member of the Court is liable to abandon any principle when the word "drugs" comes before him or her. (O'Connor is the only one who voted against enforcement of anti-drug laws in all three cases.) And I see no reason to believe that Roberts or Alito would be more supportive of the fourth amendment in such a context.
   56. Maury Brown Posted: November 19, 2005 at 09:37 PM (#1738762)
I was responding to BL, Maury, but thanks for the clarification.

My apologies on that... certainly wasn't directing my comments at you directly. Was simply mentioning (again) that the interview section quoted was from last year.
   57. Never Give an Inge (Dave) Posted: November 21, 2005 at 02:16 AM (#1739986)
Two reactions. First, to me it's a shame that Fehr would have been making his decisions in this way -- foreseeing (or not foreseeing) whether circumstances would force his hand. It's a pipe dream, I know, but part of me just wishes he would have accepted a stronger policy because it actually was in the long-term best interests of the game, and most crucially the vast majority of the players.

I agree with you on that. I do think, thought, we are all speculating to a certain extent about what was going on in Fehr's head, and the extent to which the players actually wanted testing, etc.
   58. Voros M. Posted: November 21, 2005 at 08:15 AM (#1740327)
I don't think it's constitutional, but with the current Supreme Court, I'm not sure I'd risk it, either.

"Congress shall make no law..."

When such a deliberately unambiguous statement becomes "Congress can make a law, if it thinks it has a good reason..."

Yeah, I'd say plunking the family farm down on a bet on the Supreme Court might be a risky strategy.

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