More MLB revelations for Congress to explore

While Mark McGwire was playing the clumsy Cardinal at the 2005 Congressional hearings, commissioner Bud Selig proved an artful dodger, managing to avoid disclosing that Major League Baseball had seen a list of 104 players who federal authorities believed had tested positive for performance-enhancing drugs in 2003.

It is one of two revelations buried deep in the Mitchell Report and overlooked in the frenzy over allegations that Roger Clemens used steroids. Congress could revisit both issues Tuesday in a new round of hearings that will include testimony from Selig, union chief Donald Fehr and former Sen. George Mitchell.

"Steroid use was an open secret for too long, and there has been too much covering up," said Rep. Edolphus Towns, a member of the committee that will conduct the hearings. "I don't want any more games – I just want the truth to come out."

Congress might pin down Selig and Fehr regarding a peculiar action they authorized after MLB had reviewed the list of drug cheats obtained by federal authorities during the BALCO investigation.

In early 2004, after records were seized that federal authorities believed could identify which players had tested positive for performance-enhancing drugs during the so-called "survey testing" in 2003, MLB and the players' union cut a deal: MLB postponed any testing of the 104 players until the union notified them that they had tested positive in 2003 and were vulnerable to government search warrants.

It took the players' union until September to inform all the players, according to the Mitchell Report, meaning known offenders went nearly the entire season without a drug test. And when union officials finally got around to telling the players they had tested positive the previous year, one current unidentified player said he got a heads-up that the next round of testing would occur within two weeks. The Mitchell Commission looked into allegations that other players got advance notice of the drug tests but the report includes no additional confirmation.

"The intention was not to provide players notice of when they were going to be tested,'' said Rob Manfred, MLB's executive vice president for labor relations. "Even with the delay in getting everybody informed, there was still time for testing to take place. And nobody knew exactly when they were going to be tested.''

After the 2005 Congressional hearings, MLB had yet another opportunity to disclose it had seen the list of 104 players who federal authorities believed had tested positive for performance-enhancing drugs in 2003. (The number differed from MLB's contention that up to 83 players had tested positive because federal authorities used stricter standards for positives than MLB, according to a source familiar with the results.)

Baseball was less than forthcoming with lawmakers in September 2005, when a congressional committee launched an investigation into whether first baseman Rafael Palmeiro had committed perjury at hearings in March of the same year. The image of Palmeiro pointing his finger at congressmen and forcefully denying under oath that he had taken steroids was startling; so was the news only six weeks later that he tested positive for stanozolol.

As part of the September probe, Congress inquired about the 2003 testing results to determine whether Palmeiro had ever had a previous positive test. According to a report summarizing the investigation, "MLB … informed the Committee that test results of players in 2003 were maintained anonymously and were not provided to MLB, the Players' Association, or to the individuals."

Technically, the statement was true – the laboratory results had not been revealed; MLB did not know the specific performance-enhancing drugs the players had taken, or even if all 104 had tested positive.

However, top baseball and union officials knew that authorities investigating the BALCO case had requested subpoenas for information about the players for their involvement with performance-enhancing drugs.

A spokesman for the players' union on Monday said Fehr was unavailable for comment.

Manfred said MLB was not deceitful or disingenuous by failing to mention the government list to Congress.

"All I know is, what we told the committee was 100 percent true,'' he said. "We never had test results. All we knew was we got the report and the positives were somewhere in this range of 5 to 7 percent."

However, Manfred said he saw the names of the 104 players on a list provided to the players' union by federal investigators. The list, Manfred said, did not specify the substances for which the players allegedly tested positive.

Later, in a statement relayed through a spokesman, Manfred said, "There had been publicity about the search warrants and the union was involved in litigation with the government over the warrants. I assumed the Committee was aware of that.''

Some 1,198 players on 40-man rosters were tested for the first time in 2003 for the purpose of gauging the extent of steroid use in baseball. Players who tested positive were supposed to remain strictly confidential, known only to the lab that conducted the tests. Shortly after the season, MLB announced that 5 percent to 7 percent of the 1,438 tests (some players were tested more than once) came back positive, which according to the collective-bargaining agreement triggered a drug program that among other things could have resulted in the disclosure of players who tested positive in 2004 and thereafter.

However, the confidentiality of the 2003 survey results was compromised when federal agents executed search warrants in March 2004 on the two private companies that conducted the testing. The warrants sought records and samples for 10 players connected to the criminal investigation of the BALCO laboratories that eventually ensnared Barry Bonds and sprinter Marion Jones in perjury cases and prompted Jason Giambi to admit to steroid use.

In the course of those searches, federal agents seized data, according to the Mitchell report, from which they believed they could determine the identities of all the players who had tested positive during the anonymous survey testing. The players' union filed a lawsuit to prevent the government from using the test results and also initiated talks with Selig's staff. Union officials considered the existence of records that could implicate players in the BALCO case a breach of the confidentiality agreement with MLB.

The union was furious, and MLB was worried. Facing pressure from Congress to implement a tough anti-steroids program and suddenly facing union threats to kill the program, MLB agreed to allow the union to inform the players that federal authorities had subpoenaed information about them before testing them again.

Suddenly, the integrity of a random drug-testing program hinged on the ability to keep the moratorium on testing a secret from the 104 players – and the rest of the world. After all, if the players learned they would not be tested, they could use steroids without the risk of getting caught.

Whether or not players learned of the moratorium is unclear. But according to the Mitchell Report, the 104 players were not tested again until the final weeks of the 2004 season. Players were tested only once that season, so MLB believed that the moratorium had little effect because once a player was tested, he knew no second test was forthcoming.

Allegations that some players knew in advance when the test would take place created skepticism when positive tests dropped to about 2 percent that year, a figure hailed by MLB as proof that its testing program was effective.

In March 2005, Congress called hearings to discuss the problem of steroids in baseball. The representatives all but ignored MLB's claims of progress and blistered baseball officials for lax penalties and policies. The Palmeiro investigation and the Mitchell Report have followed, leading baseball to Capitol Hill once again.

Mitchell is expected to testify first Tuesday in front of the House Oversight and Government Reform Committee. He almost certainly will be asked about the 20 recommendations in his report, including one for MLB to turn over its drug-testing program to an independent body such as the United States Anti-Doping Agency, which oversees drug testing for the U.S. Olympic team.

Selig and Fehr will follow Mitchell to the witness table. They, too, will be asked about washing their hands of the messy, complicated business of conducting a stringent drug-testing program while also promoting the sport and representing the players' collective interests.

"Members of the Committee are going to be very skeptical of any claims from Major League Baseball and the players' union that the steroids problem has been solved," said Rep. Towns.

Selig and Fehr undoubtedly will point to progress baseball has made on the steroids front – more stringent testing and longer suspensions. Yet it appears Congress will be more insistent than it was three years ago, in large part because of baseball's foot-dragging and the false-hearted stewardship of the drug-testing program that was brought to light in the Mitchell Report.