Free Fernando Vina (part two)

I'm still mystified by certain aspects of Major League Baseball's drug policy.

Consider the following:

An aging pitcher is suffering from a variety of persistent injuries. They are healing slowly. He is depressed and lethargic, and anxious about his career. He goes to see his doctor. The doctor finds that the patient's testosterone count is low. He prescribes the pitcher a small dose of testosterone, as part of  his rehab. The patient is desperate, and the doctor agrees to experiment with testosterone, and see if it speeds recovery.

Questions:

1. Has the pitcher violated MLB's drug policy? As far as I can tell, yes. Testosterone is on baseball's list of banned substances.

2. Has the patient violated the law? Of course not. Testosterone is an FDA approved medication.

3. Has the doctor done anything wrong? Not at all. The doctor could also have prescribed human growth hormone, if he wanted to.  Even though HGH is not approved for injury recovery, a physician is free to prescrbe virtually any drug he/she wants to, in an off-label manner.

4. Should the doctor and the athlete feel guilty about what they've done? I don't see why. The foundation of our medical system is that physicans have broad leeway to act in the best interests of their patients, and if the physician thinks that testosterone might help the athlete he's entirely within his rights to prescribe it. The pitcher is also entitled to take every step he can to regain his health. Surely it is wrong--if not unconstitutional-- for an employer to impede an employee from receiving the best medical attention.

5. Will Major League Baseball ever find out about the pitcher's testosterone use? Not unless the pitcher tells someone. The transaction between a patient and a doctor is, of course, covered by patient confidentiality laws.

6. Does this mean that lots of professional athletes may already be using substances like testosterone--and we have no way of finding out? Of course!

7. So why did Vina and Pettitte and Bennett get in trouble? Because, presumably, they obtained their HGH without an prescription--which is illegal.

8. So wait. The league's drug policy is an attempt to prevent the use of drugs without a prescription? No. Its supposed to prevent the use of a broad class of drugs. But since the league's policies  clearly can't govern drugs prescribed legally by a physican--particuarly if they are undetectable-- it has the effect of only preventing the use of drugs obtained illegally.

9. I'm confused. Aren't there already laws in place in America preventing the use of drugs without a prescription? Yes. (And I'm confused too.)

Will someone please tell me if I've got this right?

Comments

[BobbyBeingManny]

Malcolm:

In regards to HGH, here's an interesting piece:
http://www.slate.com/id/2162473/nav/tap1/

My only question about the whole thing is why do these athletes come out and use the medicinal excuse AFTER they're caught? That's like saying "I was trying to feed my family" after someone is caught robbing a bank. Timing is everything. Certainly, an athlete doesn't need to hold a press conference announcing their nutrition habits, but they could at least get the stuff through the team doctor instead of clubhouse guys, personal trainers, etc...that's where the anger lies.

[Josh King]

Right on one count - legally and morally, why should the crime of taking medicine without a prescription draw more outrage than the many legal infractions (DUIs, reckless driving, assault, etc.) athletes are charged with every year?

On the other hand, once a substance is prohibited by the league's competition rules, the league can govern a player's use of those substances, even if legally prescribed. It's not a matter of legal governing, but rather a question of contractual rights and obligations.

However, it's possible a player could have a contract claim against MLB if he alleged that the league's competition rules caused a contractual breach by not allowing him to stay healthy. THAT would be an interesting lawsuit . . .

[Bjorn]

I think the issue is that people who want athletes to stay away from drugs only have a blunt instrument (imperfect test vs. some virtually undetectable drugs). You say it's bad to use a blunt instrument. They say it's the best instrument they have.

It's like only punishing the criminals who get caught. In a way it's strange that it's the "getting caught" part that separates punishment from non-punishment, but in another way it's a natural result of the difficulty of catching criminals.

(n.b. I'm not saying athletes using drugs are criminals, only that the control systems have similar problems.)

[rsaunders_37205]

I think you're mostly right. It seems the critical distinction is between "legitimate" use of drugs that might also be performance enhancing and "illegitimate use" (use that boosts one's performance beyond their normal capacities when healthy).

The problem is that random drug tests probably can't distinguish these cases, or at least not all of these cases. Also, many doctors may prescribe illegitimately, but enforcement is low.

Thus, it strikes me that the issue you raise could be addressed through a registration program in which a MLB (and/or MLBPA) doctor must review the treatment/ prescription for any drug that is on the banned list. If you test positive and are not on the registration, you're penalized.

The registration process would need a review process, since MLB and MLBPA might have incentives to register people or permit use beyond remedial use; the process would have to balance patient privacy (not my business if somebody needs a Rx), but independent drug testing organizations do this kind of thing all the time, and they could probably maintain such lists. Perhaps one of the international sports arbitration boards or drug testing panels could certify this.

[Ken]

I think you should study past cases of doping more closely as it seems that your entire argument relies on trust of both the athletes and doctors. In cycling, both the doctors and the athletes have proven to be dishonest. Even in therapeutically allowed uses of prescriptions, you'll find that cyclists curiously have higher incidences of particular ailments than the general population, i.e. those ailments that are treated with or mask PEDs.

[Gerry]

Your scenario is mostly correct but I doubt that it represents half of one percent of cases.

The more general use is for a player who is looking for an edge and is not injured. Testosterone provides very quick recovery times and allows a user to work out longer and/or more frequently than a non-user.

The issue, whether legal or not, is that players are competing against one another for playing time and roster spots. If an athlete believes that the majority of his competition is using, he can put himself at a competitive disadvantage or join the club. Some players may feel forced to use the drugs, and to take risks with their health, to keep up.

[Martin]

I agree with your general thrust, Malcolm, but a skeptic might say that you have merely established that MLB and the U.S. government are interested in preventing different things. Which isn't news.

[Bob Shay]

Seems to raise the question of Olympic athletes, particularly swimmers, who lost medals because they took antihistamines or asthma medicines that turned out to be on banned lists. Their trainers/doctors should have been aware, and at least queried AOC, but they didn't and these athletes wound up losing medals.

Who is responsible here?

[John Wolf]

In the above scenario the pitcher can apply to MLB for an exemption on medical grounds.

[john of sparta]

how about Tommy John Surgery?
isn't that a medical "miracle cure" for MLB? what if someone
had a Secret TJS? during the
off-season performed in India?
Surgery/Drugs/whatever.
unless it's illegal for the
avg. citizen to use/possess
in the US, then it's legal for athletes and everyone else.
yes, Pro and Am leagues have
"policies", and if someone
wanted to Push Back, well,
that happened with Free Agency (Catfish). it could
happen with this issue.

[john of sparta]

how about Tommy John Surgery?
isn't that a medical "miracle cure" for MLB? what if someone
had a Secret TJS? during the
off-season performed in India?
Surgery/Drugs/whatever.
unless it's illegal for the
avg. citizen to use/possess
in the US, then it's legal for athletes and everyone else.
yes, Pro and Am leagues have
"policies", and if someone
wanted to Push Back, well,
that happened with Free Agency (Catfish). it could
happen with this issue.

[john of sparta]

i apologize to everyone for my
double-post. i plead ignorance.
(i didn't knowingly use steroids)

[Steve Sailer]

Malcolm,

If you are looking for a better example, Google "golfer beta blocker."

Beta blockers are completely legitimate drugs that save huge numbers of people from dying of heart problems. They also seem to have the side effect of calming the jitters, which could be very useful in putting. Beta blockers are said to be used by classical musicians with stage fright. A number of professional golfers, especially on the age 50+ Champions Tour, have beta blocker prescriptions. The Tour doesn't want to ban beta blockers because it doesn't want players keeping over on the green because they aren't allowed to take the medicine. (Some players who have taken beta blockers complain that they make them too calm, and hurt their tee-to-green game.)

[Steve Sailer]

The difference between beta blockers and testosterone, though, should be fairly obvious: most popular sports are to some extent, in effect, a test of testosterone.

Fans admired Roger Clemens because he is a fine specimen of masculinity. If he had had a low testosterone count to start with, he never would have put on the 230 pounds of solid muscle that let him go 24-4 in 1986. When Clemens's testosterone count naturally dropped with age to the point where he could no longer compete up to his standards, he should have retired to the golf course and let the young bucks have their day, just as his elders once got out of the way and let him have his day.

[Dane Cao]

The league is just trying the to do the right thing,taking the safest and the easiest path(though not uncontroversial and very effective).It's a governing body,only wants to govern well.It's not that interested in aligning laws and busting legal paradoxes.

[suspence]

Other performance enhancers MLB might want to consider banning to maintain the sanctity of their record books:

- Contact lenses/laser vision correction.

- Arthroscopic surgery

- Tommy John surgery

- Personal trainers

- Strength and conditioning coaches

- High tech work-out facilites

- Nutritionists

- Video analysis of the swing

- Computer generated scouting reports regarding what each pitcher likes to throw in a 2-1 count during a day game on the road.

- Elbow protectors

- Shin protectors

- Head protectors

Baseball has found itself in the midst of this convoluted PED argument primarily so that the baseball media can blindly continue to compare the numbers of Barry Bonds' era with those of Babe Ruth's.

[domenic]

Doctors are not free to perscribe HGH. "HGH has some definite and proven medical benefits. It is currently approved medically in the United States for two primary indications, short stature in children and growth hormone deficiency in adults." This is a quote from Dr. George Griffing. Therefore if a player does in fact have low testosterone (to the point where the Doctor feels that he needs to be medicated) then he can get a presciption and use it. There is no reason MLB shouldn't be made aware of it, and I can't see how they would have a problem with it. The point is that most of these guys don't need testosterone for a medical reason. There are side effects to using HGH and a Doctor needs to ethically weigh the levels of the patient to their need. And getting back on the diamond faster shouldn't be part of the equation. The comment about TJS is a different beast because its common medical practice to treat that injury with TJS. It is not common medical practice to treat slow healing injuries with HGH (i am guessing due to the side effects).

[john shade]

"Surely it is wrong--if not unconstitutional-- for an employer to impede an employee from receiving the best medical attention."

"Unconstitutional"? Under what conceivable argument? Baseball is not a state actor.

[Maya, C.V.T.]

I'm sure this is an obnoxious thing to say, but geez - the Earth is disintegrating in front of our eyes and THIS is what we're agonizing over?? A talented NY Times writer, and even Congress, is wasting too much time on this issue.

I mean, obviously you can write about whatever you want, but the words "ethics" and "sports" are used too much in the same sentence these days! It's just a game! Let it go - either the chronic steroid users will be humiliated and disrespected if caught, or Karma will bite them in the behind one way or another, probably in the form of cancer.

Watch the game, have fun, let it go, and keep our ethical agonizing over things like children dying or an unliveable Earth by 2050.

[Holly Martins]

Yes, you're working with a flawed assumption here -- a player with a legitimate medical reason to take testosterone/HGH/etc CAN get an exemption from MLB. (Though there are very few adult athletes who have those legitimate medical reasons.)

You're right that it always has been illegal to take any prescription drugs without, you know, a prescription. So it was technically against the rules to use steroids long before MLB finally officially banned them.

There are certainly many shades of gray surrounding this issue, but MLB, whatever its other faults, is not preventing players with real medical conditions from receiving treatment.

[Bill]

It is not wrong or unconstitutional (economists should not pretend to be lawyers any more than lawyers should pretend to be economists) for MLB to prevent players from taking steroids, even for medical reasons. This is sport. The very essence of it is that it occurs on a level playing field. The testing environment is far too uncertain to create the level of granularity needed in a testing program that permits medical use, but excludes use for a competitive advantage. There are two fundamental contributors to this problem. First, technical limitations prevent it—the so-called battle of the chemists, in which economics drives chemist to design the latest and greatest undetectable drug (this is admittedly more of a problem is sports programs with real testing, like the olympics). Second, and more importantly, the players, and more specifically the union, are entirely uncooperative on the issue. Now, if the union were to allow a comprehensive testing program, and players getting medical treatment that included banned substances waived some of their confidentiality, we could have a talk about putting in place a program that had the level of permissiveness necessary for medical use. Fat chance. So guess what does "an aging pitcher [] suffering from a variety of persistent injuries" do? He retires. He does not turn to illegal drugs to prolong a career that nature has cut off at the appropriate time.

[Craig Calcaterra]

1) MLB doesn't care about use of drugs without a prescription. It's a strict liability test: are the drugs we've banned for competitive purposes in your system or not. If they are, you have violated a rule.

2. Setting aside how uncommon (at least based on the Mitchell Report) your hypothetical is, baseball, as well as the Olympics and other sports have rules built in for legitimate medical need. If a doctor certified that player x's "testosterone count was low" as you state, he would likely be allowed to take the treatment because, theoretically anyway, the treatment works to level the playing field for the player (getting him up to "normal" testosterone levels) rather than providing him an advantage over others.

3. The medical privacy laws are a red herring. No one can compel you to turn over your medical information if you don't want to, nor can an employer forbid you from receiving the medical attention you need. They can keep you out of work, however, if that treatment impedes your ability to do your job or comply with legitimate work rules,

4. Yes there are a lot of gray areas here and it is possible to create better hypotheticals that push things closer to the line between acceptable and not acceptable, but there is a long way between the hypothetical (doctor writes legitimate prescription) and what was really happening (guys getting banned substances either without scrips or with clearly bogus scrips, with no attempt to make a showing of medical need beyond that of a high school educated ballplayer saying "yep, I feel I need to shoot me some of the go-go juice").

5. The bigger issue, in my mind, is not how reasonable behavior on the part of athletes fits into the drug policy. Rather, it's whether the drug policy is reasonable itself. Query: is it truly a performance enhancing drug worthy of being banned if it simply aids in recovery from injuries as opposed to giving you superior prowess to an equally healthy person who was not taking the drug? Because at least with respect to HGH, the evidence that it truly helps you play baseball better is pretty dubious. Several studies have shown that in people with normal GH levels, HGH does not improve athletic performance in terms of muscle strength, flexibility, and endurance. In fact, several placebo-controlled studies have been negative.

But that's a battle for another day.

[Zorro for the Common Good]

What bothers me the most about your steroid-related posts is that you seem to treat this as a legal (even constitutional!) issue, where players have "rights" and the "state" (in the form of MLB) cannot infringe on those rights. Now, there are obviously some legal issues surrounding possession of steroids, or obtaining HGH without a prescription, but those are only tangentially related to the rules baseball has set up for itself. Forbidding players from using HGH/PEDs no more infringes on their rights than making a player return to the dugout after he has been tagged out infringes on his right to free association.

MLB is a business, and it is allowed (within reason) to set up rules that benefit the long-term health of that business. When the NBA banned 18 year olds from its draft a couple years ago, there were a few squawks about restraint of trade. But the counter argument was that the presence of too many high-schoolers led to externalities in the form of less-disciplined play, which drove away fans and damaged the sport (leave aside for a moment whether forcing teenagers to spend a single year in college really makes a difference in the quality of the game).

The rampant use of steroids in baseball creates similar externalities. If baseball players are seen as pill-popping, rear-injecting Frankensteins, fans will stop buying tickets, record-breaking feats will be regarded with suspicion, and the sport will be brought into disrepute. (And of course, there are externalities for the players as well, in the form of long-term health problems.)

So I think MLB has some very compelling reasons for wanting to regulate the use of PEDs. If athletes don't like it, they can play baseball elsewhere. And the Tommy John/LASIK analogy is a red herring; obviously, you have to draw the line somewhere, and I think it's fairly reasonable to put medical procedures on one side of that line and medically unnecessary drugs on the other.

[Dustin]

I think the issue at hand is that there was essentially NO drug accountability for over 100 years, and now suddenly there is a backlash from both players and fans and MLB has been forced to play a quick and harsh hand in order to demonstrate that they do indeed take the issue to heart.

Over time, I am sure that the regulations will better fit what we deem "acceptable" drug use. Only bad things happen quickly.

[rone]

Zorro: you're painting this as a PR issue for baseball, right? So all baseball needs to do is reframe players taking PEDs as a good thing, and the problem is solved.

Less flippantly, the argument Malcolm is making is exactly about what "medically unnecessary" means. If a doctor is prescribing it, how could it possibly be medically unnecessary? What about players getting cortisone shots? Last i checked, cortisone is a steroid (yes, a corticosteroid and not an anabolic steroid, i know, but does the average fan?).