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Fehr and Selig in D.C.

Posted: Monday January 14, 2008 12:39PM; Updated: Tuesday January 15, 2008 10:48AM
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9) Speaking of Clemens and McNamee, do you really think they will testify on Feb. 13?

I believe they will both appear before this Congressional committee on Feb. 13, for if they outright refuse their invitation, they would likely be subpoenaed to appear. A failure to comply with a Congressional subpoena would likely lead to a criminal charge of contempt of Congress, which in turn could lead to incarceration. Bottom line: They better show up.


Whether they answer every question under oath is another matter, however. They are both entitled to invoke their Fifth Amendment privilege, which protects parties in a legal proceeding from disclosing information that they reasonably believe could be used in, or give rise to, criminal prosecutions of them.

Clemens, in particular, may be unwilling to answer every question under oath, despite previous pledges to do so: There was a published report this past weekend suggesting that Clemens and his attorney, Rusty Hardin, are having second thoughts about Clemens answering "every question." They are reportedly worried about the effect of Congressional testimony on their defamation lawsuit against McNamee. Keep in mind, however, pending civil litigation is not a valid basis for refusing to answer questions under oath. Unless this Congressional committee voluntarily agrees that such a basis should qualify for Clemens, he would need to provide another explanation for refusing to answer questions or otherwise risk being charged with contempt of Congress.

McNamee seems much more likely to answer every question, especially since this committee is said to be considering an offer of immunity to McNamee. Depending upon the extent and nature of immunity received by McNamee, he would be protected from criminal prosecution for statements he makes while under oath.

10) Will the NFL, NBA and NHL be watching Tuesday's hearing?

Yes, and so too will those leagues' respective players' associations. Simply put, Tuesday's hearing will not be in a vacuum. If Congress were to contemplate new legislation pertaining to drug testing of professional athletes, it would likely consider measures that regulate not only Major League Baseball but all of professional sports. Whether Congress contemplates such measures will in part reflect the quality of performances by Selig and Fehr in Tuesday's hearing.

As further evidence of the nexus between those leagues on drug testing, consider how the MLB and NFL agreed last week to a multi-million dollar anti-doping research collaborative. Though recreational drugs and performance-enhancing drugs hurt each league differently, each league shares a vested interest in minimizing the presence of those drugs, and shared approaches may prove optimal.

11) Should Congress be spending its time on steroids and baseball?

Some have expressed serious doubts about whether members of Congress, as well as their staffs and taxpayer-funded budgets, should be so invested in this topic. To be sure, there are undoubtedly more critical topics, such as terrorism or economic worries, than the implications of big-league players purchasing and using illegal steroids and other performance-enhancers.

Still, there are arguments in favor of Congressional inquiry. For one, the House Committee on Oversight and Government Reform has jurisdiction to investigate any matter that implicates federal policy. The interstate distribution, sale and use of illegal steroids certainly qualifies as implicating federal policy.

There is also precedent of Congressional oversight of sports when allegations of criminal activity are present. Congress has investigated ties between professional boxing, shady promoters and the mafia, for instance.

Congress may also use the hearings to help determine the necessity and desirability of new legislation related to steroids. Over the last few years different versions of the Clean Sports Act, as originally introduced by Sen. John McCain (R-Ariz.), have been discussed. They would require random testing for performance-enhancing drugs, with severe penalties for players who abuse them. If Congress determines that the league and players' association failed miserably in policing steroids (albeit before they agreed to a comprehensive drug-testing policy in January 2005), that may lend greater authority for regulating steroids and performance-enhancers in baseball and pro sports.

The hearings may also prove useful in highlighting criminal activity that would receive less notice in the absence of sports. The distribution, sale and use of illegal steroids and other performance-enhancing substances violates an assortment of federal laws, including those pertaining to drug trafficking and distribution, such as the Controlled Substances Act, which guards against anabolic steroids. Similarly, by raising awareness of the physical dangers and unethical implications of steroids use, Congress may discourage child and teen athletes from using steroids.

12) Could this investigation become a topic for the presidential candidates?

Certainly, the candidates running for president should be briefed by staff on any ongoing or prospective congressional investigation. Though this particular investigation may not rise to the level of importance of other congressional inquiries, members of Congress believe it warrants their time, energy, and resources. It is also a matter followed closely by many Americans.

We also know presidential candidates can be asked about a myriad of topics while campaigning or debating. We can all recall instances of candidates being embarrassed when unable to correctly answer "gotcha" questions, such as naming the leaders of other countries or estimating the cost of groceries commonly found in supermarkets.

With those reasons in mind, the candidates should possess a working understanding of steroids and baseball, the Mitchell Report and facts and allegations concerning some of the more prominent players implicated, most notably Clemens and Bonds.

Keep in mind, however, that the investigation remains under the purview of Congress and seems unlikely to attract the serious notice of the Executive Branch. Plus, presidents have usually avoided engaging in sports disputes, typically out of respect to the autonomy of leagues and players' associations.

There have been recent exceptions, however. During the 1994 baseball strike President Bill Clinton ordered the league and the players' association to resume their collective bargaining in hopes of breaching an impasse, while in his 2004 State of the Union Address, President George W. Bush commanded pro sports leagues and their respective players' associations "to get rid of steroids." Given the amount of public and now governmental attention the Mitchell Report and the Clemens allegations have attracted, it would not be surprising if President Bush mentioned steroids again in his upcoming State of the Union Address on Jan. 28, thus making the issue even more relevant to the 2008 presidential race.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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