Written by:

 MICHAEL S. SCHMIDT

June 9, 2008

When baseball and union officials appeared before the House Committee on Oversight and Government Reform on March 17, 2005, they presented figures that showed that baseball’s two-year-old testing program had substantially reduced the number of positive tests for performance-enhancing drugs. According to the figures, the number of players who had failed drug tests in 2004 had dropped to about a dozen from about 100 in 2003.

But the accuracy of the picture provided by Commissioner Bud Selig, his deputy Rob Manfred and the players union’s executive director, Donald Fehr, about how the testing was conducted has come into question. The committee’s chairman, Henry A. Waxman, Democrat of California, has said he is troubled, and the committee’s staff is planning to send letters to Selig and Fehr seeking answers to what Waxman has called “misinformation.”

At the heart of the issue is the fact that the committee was not told that the 2004 testing, with its significantly lower positive test results, had been partly shut down for much of that season, what Selig’s office later called an emergency response to an unforeseen situation. Specifically, the shutdown arose from the federal investigation of the Bay Area Laboratory Co-operative steroid ring.

As a result, players who apparently tested positive in 2003 were not retested in 2004 until the final weeks of the season, and might have been notified beforehand, perhaps skewing the overall test numbers for that year.

“It’s clear that some of the information Major League Baseball and the players union gave the committee in 2005 was inaccurate,” Waxman said in a written statement. “It isn’t clear whether this was intentional or just reflects confusion over the testing program for 2003 and 2004. In any case, the misinformation is unacceptable.”

Manfred, speaking for the commissioner’s office, said that he and Selig had testified truthfully.

“The testimony of Major League Baseball officials was completely accurate, and we are happy to address any concerns that Congressman Waxman may have,” Manfred said.

Michael Weiner, the union’s general counsel, said in reference to Fehr: “Don’s statements at the March 2005 hearing were accurate. If Congressman Waxman has any questions, we would be happy to respond.”

When Selig, Manfred and Fehr testified in March 2005, they hoped to demonstrate that baseball had taken control of the issue of performance-enhancing drugs and thus did not need Congress to police the matter. Earlier that day, the retired slugger Mark McGwire had appeared before the committee and declined to answer most of the panel’s questions about steroid use.

Selig, Manfred and Fehr offered the committee information about a still-evolving testing program that had begun with anonymous testing of all players in 2003, with no public disclosure of positive tests and no punishments. In 2004, each player was tested once, and players who tested positive were subjected to additional tests. If a player tested positive twice, his name was made public and he was suspended for 15 games.

In January 2005, baseball toughened the program again, mandating that first-time offenders be identified and suspended for 10 games, with second-time offenders suspended for 30 games.

The tougher penalties enabled baseball and the union to argue before the committee that they were aggressively addressing the drug issue. Still, what they did not tell the committee, in documents or in testimony, was how a federal investigation into Balco had collided with baseball’s testing program in 2004.

Why that information was not given to the committee is unclear. But it seeped out almost three years later, in four pages at the back of the December 2007 report that the former Senator George J. Mitchell prepared on the links between performance-enhancing drugs and baseball. They describe a sequence of events that began when federal agents working on the Balco case seized laboratory results in the spring of 2004 that tied more than 100 players to positive drug tests in 2003.

For baseball and the union, the seizure of the test results was an alarming, and unanticipated, development. The 2003 results, under the collective bargaining agreement between baseball and the union, were supposed to be anonymous. Now, those results were in the hands of federal investigators and it was unclear what they would do with them, and whether those names would be made public.

It was this development, Selig’s office later told investigators for Mitchell, that led to a testing moratorium in 2004.

First, baseball and the union imposed a moratorium on all 2004 testing not long after the season began. Shortly after, the moratorium for most players was lifted. The exact dates for both actions are not known, the Mitchell report stated, because relevant records were destroyed. But baseball and the union also agreed that the moratorium would remain in effect for those players whose test results had been seized by federal investigators until the union could inform those players about the Balco inquiry. In both cases, the union agreed not to tell the players there was a moratorium.

According to the Mitchell report, months went by before the union informed players that their tests had been seized until, sometime between mid-August and early September, Manfred contacted Gene Orza, the union’s chief operating officer, about the need to do so.

In the following weeks, before the regular season ended, the players whose test results had been seized were finally tested. They were players who had apparently tested positive for a banned substance in 2003. It is unclear whether these players were told by the union that the 2004 tests were to take place.

The Mitchell report cited one player who said he was told by a union official in September 2004 that he had tested positive in 2003 and would be tested within two weeks. The report said two other players told Mitchell investigators that a union official had told them they had tested positive the previous year.

Mitchell concluded that “other players may have received similar notice.”

Antidoping experts have repeatedly stated that any advance notice greatly enhances the ability of an athlete to avoid testing positive.

Still, regardless of whether players were notified by the union in advance, the fact that some players went nearly a full season without being tested may have affected the 2004 test figures.

“If you turn off the testing, you have eliminated the mainstay of your program,” said Dr. Gary I. Wadler, a member of the World Anti-Doping Agency.

The testimony that Selig and Fehr gave to the Congressional committee in 2005 gave no hint of the 2004 testing moratoriums.

“In 2004, each player was tested on an unannounced, identified basis for the unlawful use of steroids,” Fehr said in written testimony to the committee. “No player knew when he was going to be tested.”

His testimony continued: “We have the results from 2004. Incidence of the use of illegal steroids declined significantly, from over 5 percent to approximately 1 percent. The data suggest convincingly that the 2004 program did work.”

Selig said: “Each player was subject to one steroid test per season on an unannounced, randomly selected date. This type of testing was an important first step and will be continued in 2005.”

Selig and Fehr were back before Waxman’s committee last January to discuss the Mitchell report findings and, according to a committee staff member, the panel was prepared to ask the men about their 2005 testimony, and the fact that the 2004 testing moratoriums had gone unmentioned. But because Mitchell had to leave the hearing early to return to New York, those questions were not asked, the staff member said.

But now, with Waxman expressing his unhappiness and with letters headed to Selig and Fehr, what occurred in 2005 is likely to be an issue in 2008.

“Congressional committees tend to give parties the benefit of the doubt if they are forthcoming and upfront about problems they may have,” said Deborah L. Rhode, a professor of law at Stanford University and the general counsel to the House Judiciary Committee during the impeachment hearing of President Clinton. “Like anything, it is always worse when other information comes out later.”