Open and notorious: Why steroid-era players should be in the Baseball Hall of Fame

Estimated read time: 13-14 minutes

This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.

SALT LAKE CITY — Prosecutor, judge, jury. Baseball analysts and media pundits have spent the last couple of days invoking some of these general ideas to describe the role of the Baseball Writers Association of America in electing worthy players to the Baseball Hall of Fame.

Such individuals analogize the BBWAA’s role to figures in the American criminal justice system. This narrative points to the function that BBWAA members fulfill in determining the HOF worthiness of former Major League Baseball players, especially as it relates to players that potentially used performance-enhancing drugs from 1988 to 2004 (the “steroid era”).

Last week, the BBWAA elected Greg Maddox, Tom Glavine and Frank Thomas to the HOF. All of these players are worthy of the honor. They were some of the finest players of the steroid era. The list of steroid era players already elected to the HOF is equally impressive — Tony Gwynn, Cal Ripken Jr., Rickey Henderson, Roberto Alomar and Barry Larkin, to name a few. However, most people spend time discussing those steroid era players that have been passed up for the HOF because of suspected PED use, not the actual steroid era HOF inductees.

Based on recent HOF voting, most members of the BBWAA refuse to vote for anyone overtly (i.e. Mark McGwire, Barry Bonds) or tangentially (i.e. Jeff Bagwell, Mike Piazza) associated with PEDs. The idea being that BBWAA members are trying to establish a bright-line rule that allows all non-PED users a chance to be elected to the HOF but prohibits all suspected PED users. Despite valiant efforts by BBWAA members, this supposed “bright-line” rule is, in fact, a blurred rule that has created an impractical and arbitrary standard for HOF elections.

The BBWAA members attempting to prohibit all suspected PED users from the HOF have distilled the legacies of steroid era players into individual ex post facto arguments regarding each player’s PED connections. In particular, they consider “which individual players used PEDs?” and “what is the likelihood that a player used PEDs?”

Answering these questions so long after the steroid era is problematic. This is highlighted by the fact that there are widely varying estimates of PED use during the steroid era. For example, former Cincinnati Reds pitcher Jack Armstrong estimated that 20 to 30 percent of players between 1988 and 1994 were using “large doses of steroids while an even higher percentage were using lower doses of PEDs.” In 1995, Randy Smith, then the Padres’ general manager, estimated that 10 to 20 percent of players were using steroids. An unnamed general manager that same year estimated closer to 30 percent and believed that potentially an entire American League team had been using PEDs.

A “well connected source” in a 1997 Los Angeles Times article said that “half the position players in the major leagues use steroids.” Also in 1997, an anonymous all-star player insisted that one-third of all MLB players were PED-users. Ken Caminiti, the 1996 National League MVP, said that “at least half” of major league players were using PEDs in 2002.

Jose Canseco famously wrote in 2005, “The challenge is not to find a top player who has used steroids. The challenge is to find a top player who hasn’t.” Caminiti said of using PEDs, “everybody was doing it.” Given such statements, how does the BBWAA decide which players used PEDs and which players did not?

Since few steroid era players will discuss PED use, BBWAA members are forced to base their conclusions on hearsay. Such examples include disputed testimony or reports of a player’s PED use from former trainers, teammates and friends. BBWAA members also base their PED determinations on circumstantial evidence. The most common circumstantial evidence are anecdotes of a player’s unnatural longevity, statistical anomalies, back acne and increased bicep, chest and/or head size.

I trust that BBWAA members are doing the best they can with the information currently available. Still, the challenge of determining whether steroid era players ever used PEDs 10 to 20 years after the fact is simply impractical. HOF voting results for steroid era players is confusing at best and arbitrary at worst. For example, Frank Thomas and Ricky Henderson were first ballot HOF inductees, essentially elected without question from a super-majority of BBWAA members. Yet, most BBWAA members have deemed Jeff Bagwell and Mike Piazza likely enough for PED use that they are not worthy of HOF election even though there does not appear to be any more concrete evidence for Bagwell and Piazza’s PED use than Thomas and Henderson. Such conclusions may or may not be accurate, but the HOF election process loses its validity because of uncertainty. This impractical uncertainty and feeling of arbitrariness will most likely only get worse as more steroid era players become eligible for the HOF.

Although this article so far is steeped in criminal justice vernacular, the criminal law analogy so frequently used by pundits is entirely misplaced. The purpose of the HOF is to memorialize the game of baseball, not keep order in society. In addition, the BBWAA’s role in HOF voting is not analogous to figures within the criminal justice system.

The BBWAA is not comparable to a criminal prosecutor in the American justice system because HOF voting is not an adversarial system. There is no zealous advocate to defend the cause of former MLB players. BBWAA members have unilateral authority to vote certain MLB players into the HOF in their sole and absolute discretion.

Likewise, the BBWAA’s role is not similar to a judge because members are not impartial arbiters. HOF voters were prominent and important participants in MLB during the steroid era. As such, voters have very real conflicts of interest. So it is difficult to trust their biased judgments.

It may be possible that the BBWAA’s role in HOF voting is analogous to a jury. Norm Crosby noted, “When you go into court, you are putting your fate into the hands of twelve people who aren’t smart enough to get out of jury duty.” Based on their general desire to prohibit all PED users from the HOF with very limited information, BBWAA members share some similarities to jurors under this definition.

Although I believe that criminal law references are an inadequate parallel, there is a legal concept that should be considered in determining whether players from the steroid era, including potential PED-users, should be included in the HOF. The doctrine of adverse possession provides some guidance because it establishes a practical and efficient precedent for resolving issues that result from inaction.

Common law adverse possession allows a possessor of real property to acquire legal ownership to the property of another under certain circumstances of long, uninterrupted possession. An adverse possessor of real property obtains title upon demonstrating, among other things, that possession of the property in question is open and notorious to the original owner for a certain significant period of time (typically between seven and 20 years, depending on the jurisdiction).

In order to establish adverse possession, a possessor of real property must prove “open and notorious” use of another’s property. Such possessor’s use must be sufficiently obvious such that the underlying real property owner knew or should have known that someone had taken possession of and was utilizing the property. To be clear, the underlying real property owner does not need to have actual knowledge of such use (i.e. visually see or hear firsthand accounts of such use). One of the policy justifications for the “open and notorious” adverse possession element is that it is unfair for the original property owner to argue ignorance when it is reasonable that such original owner knew of the possessor’s use given the circumstances and still took no action.

The doctrine of adverse possession is often unsettling to first-year law students because it appears to reward a person who is illegally trespassing on the land of another. However, adverse possession does not exist to simply reward certain desirable behaviors (i.e. improving real property because it serves the community’s greater good to have improved property) and punish other less desirable behaviors (i.e. leaving real property dormant and unattended for a significant period of time). Adverse possession’s greatest benefit to society is that it serves as a practical and efficient solution to property disputes by resolving all openly disputed titles and correcting conveyance errors.

Although most people wish that all PED-users from the steroid era could be accurately identified and barred from the HOF, myself included, we are at least 15 years too late. Our collective inaction has made it impossible to properly identify such individuals. Thus, for policy reasons similar to those set forth in the doctrine of adverse possession, BBWAA members should set a practical and efficient precedent by voting solely on an individual player’s on-field exploits because BBWAA members and MLB generally (including, without limitation, players, managers, owners, executives and trainers) knew or, more importantly, should have known that PED use was occurring during the steroid era.

#poll

Beginning in 1988 and continuing throughout the steroid era, PED use was open and notorious because MLB players, management, media and even fans knew or should have known about such use. Before 1988, it was common knowledge that PED use was growing in the sports world. An already growing suspicion of PED use in sports expanded during the 1976 Olympics. In 1988, the American public was unequivocally put on notice of PED use in sports with Ben Johnson’s disqualification from the 100-meter Olympic final.

Within months of the Johnson disqualification, when the A’s were playing the Red Sox in the ALCS, Canseco’s steroid use became a national topic of discussion. On Sept. 28, 1988, Thomas Boswell of the Washington Post said on the CBS program "Nightwatch" that Canseco was “the most conspicuous example of a player who has made himself great with steroids.” Within days of Boswell’s allegation, stories were published in the St. Louis Post-Dispatch, Sports Illustrated and Miami Herald, among others, discussing Canseco’s alleged PED use.

Some of these articles included accounts of Boston’s Fenway Park fans serenading Canseco with “Steroids!” chants during the 1988 American League Championship Series. Discussions regarding Canseco’s PED use lingered for years, including when national stories detailed how Canseco’s assistant was caught with steroids at a Detroit airport.

During 1990, 1991 and 1993, newspaper articles speculated that Lenny Dykstra was using steroids. In 1992, Pittsburgh columnist Gene Collier wrote an article titled “Baseball’s Field May Not Be Level” and Peter Gammons reported in the Boston Globe “that while there was not much discussion of steroid use in baseball, ‘there’s a growing suspicion that it’s much greater than anyone lets on.’ ” MLB owners requested a steroids-testing policy as part of a new labor agreement with the MLB union in the 1990s, but the policy was never agreed to by all parties.

The year 1995 should have been (but ultimately was not) an obvious moment for MLB to investigate PED use and for BBWAA members to demand that MLB test players for PEDs. Los Angeles Times’ columnist Bob Nightengale published two noteworthy articles about steroids. The Sporting News picked up one of Nightengale’s pieces in a revised form. Nightengale quoted then-Padres general manager Smith as saying, “We all know there’s steroid use, and it’s definitely become more prevalent.” Tony Gwynn said, “[PED use is] like the big secret we’re not supposed to talk about ….” The then-acting MLB Commissioner Bud Selig told Nightengale, “I think we all have our suspicions on [PEDs], but unless someone comes out and admits it, who’ll ever know for sure?”

In 1996, John Smoltz said, “I hate to stereotype people because they’re big and strong, to say the only reason they got big was steroids. But I’m not naïve, either.” Larry Shaw, former trainer for the Cincinnati Reds, said that baseball trainers were “completely aware of steroid culture [in MLB] and discussed it annually even before 1998.” In addition, the word “steroids” was intentionally omitted from certain MLB player contracts throughout the steroid era.

The Mitchell Report cited 85 different newspaper and magazine articles that discussed PED use before 1998, including articles in major newspapers and magazines across the county. On Aug. 31, 1998, the AP’s Steve Wilstein disclosed that Mark McGwire had a bottle of Androstenedione (considered by some to be a PED even though it was not banned by MLB at that time) in his locker. Although McGwire was adamant that “everyone else in the game uses the same stuff I use,” PED speculation continued to rise and the number of media stories discussing PED use in MLB grew exponentially after 1998.

In 2002, Tom Verducci wrote a seminal Sports Illustrated cover article titled “Totally Juiced.” His article led to widespread calls in the media for MLB to increase PED testing of its players. Although there were and continue to be lingering offenders, MLB’s steroid era began to wane in 2004 after MLB finally instituted meaningful drug testing of its players to detect PEDs and punish users.

PED use was an open secret during the steroid era. MLB and the BBWAA may claim ignorance or naivety regarding PED use, but such use was sufficiently obvious because it was consistently discussed in publications of general circulation during the steroid era. I believe that most BBWAA members did not have actual knowledge of individual players that were using PEDs. However, actual knowledge is not required under the open and notorious standard, only that BBWAA members should have known about PED use for a significant period of time. Since BBWAA members should have known about PED use during the steroid era, such use was open and notorious.

In the language of adverse possession, PED use was open and notorious for approximately 14 years from 1988 to 2002 before BBWAA members made a significant push to have MLB enforce punishment against offenders after publication of Verducci’s “Totally Juiced” article. Similarly, PED use was open and notorious for approximately 16 years from 1988 to 2004 before MLB made a meaningful effort to stop PED use by solidifying certain PED testing. Given the wholesale failure of MLB and the BBWAA to identify and punish PED use during the steroid era, it is impractical and most likely impossible to identify PED offenders now.

All steroid era players should be eligible to be inducted into the HOF, regardless of any actual or suspected PED use. If a player is worthy of being elected to the HOF based on his on-field play, BBWAA members should be instructed to vote for such player. BBWAA members will still have the difficult task of parsing on-field play and career statistics to determine the greatest players of every era, as has been the case since the HOF’s inception. However, removing potential PED-connections as an element in HOF decisions will be much more practical than the current system. Many people have suggested that the HOF put an asterisk next to the names of all steroid era players. That is an easy solution and conforms with the idea of producing efficiency when possible.

In addition to establishing a clear solution for dealing with steroid era players and the HOF, BBWAA members and MLB in general should admit and publicize in the HOF that the steroid era’s sins include their own failings. PED users deserve the blame for the steroid era. However, they were not the only parties that benefited from their PED use. MLB and the BBWAA need to openly acknowledge the tainted greatness that was the steroid era. The best way to do that is to elect all of the steroid era’s most dominant players to the HOF. Tyler Buswell is an attorney, writer, sports fan and father of two in Salt Lake City. Follow @tlbuswell.