Congress finally confronts MLB on discrepancies

Rep. Henry Waxman praised Major League Baseball during the Mitchell Report hearings in January for ramping up steroids testing even though he possessed information that indicated baseball may have intentionally misled the same congressional committee three years earlier.

Five months later, Congress is following up. Waxman and another high-ranking congressman sent letters to MLB commissioner Bud Selig and players' union director Donald Fehr last week, asking for information about notice allegedly given to players in advance of steroid tests and a secret moratorium on testing for certain players in 2004.

The same information was uncovered in a Yahoo! Sports article Jan. 14, one day before the congressional hearings on former Sen. George Mitchell's findings. Furthermore, the allegations were included in the 409-page Mitchell Report, which members of the Committee on Oversight and Government Reform had access to 32 days before the January hearings.

The January Yahoo! Sports article called into question the legitimacy of figures MLB presented when it hailed the success of its drug-testing program at a 2005 congressional hearing. The story pointed out that the Mitchell Report mentioned that a delay in steroid testing imposed by MLB and possible notice give to players regarding testing may have artificially reduced the number of positive tests in 2004.

Waxman was apprised of the questions raised in the Yahoo! Sports article before the Mitchell hearing, according to a source close to Waxman who spoke on condition of anonymity.

Repeated attempts to reach Waxman for this story were unsuccessful.

Phil Schiliro, Waxman's chief of staff, said Monday that before the hearing the committee had drafted questions directed toward Mitchell, Selig and Fehr on the issue. But Schiliro said that because Mitchell left the hearing early, the questions were never asked. The committee chose not to confront Selig and Fehr without speaking first to Mitchell.

"We wanted to get Sen. Mitchell on the record first," Schiliro said.

Schiliro said the committee intended to follow up on the issue, and that a June 9 story in the New York Times provided the impetus to do so.

"When the piece came out, it was a natural time to do the letters with the questions we intended to ask at the hearing,'' he said. "In an ideal world, the questions would have been asked at the hearings."

Waxman chose instead to focus on the gains MLB had made in strengthening testing for performance-enhancing drugs.

During his opening statement at the Mitchell hearings, Waxman said, "To his credit, Commissioner Selig listened to the testimony at our hearing (March 17, 2005) and recognized that baseball had a serious problem. He then did the right thing and asked Senator George Mitchell to take a hard look at baseball's steroid era. … The good news is that I believe baseball is now taking steroids use seriously and making fundamental changes."

Baseball has strengthened its steroids policy twice since the 2005 hearings in response to public criticism and political pressure.

"This is a little bit of an unusual situation," Schiliro said. "This testimony was in 2005, and a lot has happened since then. The interest here is to make sure the record is accurate and to make sure that the committee understands why the information was apparently inaccurate in 2005. And we can't judge that until we get an answer to the two letters we sent."

The letters pertain to testimony during the 2005 hearing, which is best remembered for slugger Mark McGwire's refusal to answer questions about whether he used steroids. But the letters from Waxman and Rep. Tom Davis, the ranking Republican on the committee, focus on testimony from Selig and Fehr, both of whom hailed the success of the steroids-testing program and cited figures that showed a dramatic reduction in positive tests.

The number of positive tests for performance-enhancing drugs fell to about a dozen in 2004 from more than 100 in 2003, according to information MLB provided Congress. But events that transpired in 2004 have called into question the legitimacy of those numbers.

As part of the BALCO investigation in early 2004, federal authorities seized records they believed could identify which players had tested positive for performance-enhancing drugs during so-called "survey testing" in 2003. MLB and the players' union, worried the program's agreed-upon confidentiality could be violated, cut a deal: Drug testing was suspended until the union informed the players who tested positive in 2003 of those results and notified them that they were vulnerable to government search warrants.

It took the union up to six months to inform all the players – 104, according to published reports – meaning that all the players who tested positive in 2003 were not tested again until September 2004, according to the Mitchell Report.

The Mitchell Report also included allegations that players were alerted before the testing program resumed. So the marked decrease in positive tests in 2004 could have resulted not from a stronger testing program, but from the moratorium and because players were alerted that the program had resumed.

The players who tested positive in 2003 faced no penalties because the testing was part of a survey program. Official steroids testing began in 2004, triggered because more than 5 to 7 percent of major leaguers had tested positive for performance-enhancing drugs during the 2003 survey testing.

A few days before the 2005 hearing, MLB executive Rob Manfred sent a letter to the congressional committee that defended the integrity of what MLB has touted as a random testing program. The letter stated "no notice was provided to players prior to testing. The testing was unannounced.'' The letter made no mention of the program being suspended in 2004.

During the 2005 congressional hearing, neither Selig nor Fehr told Congress the program had been suspended. But they did hail the program's success while citing results from the 2004 season that possibly were artificially reduced.

The letters from Waxman and Davis ask that Selig and Fehr each respond to seven questions by June 26. The first question pointedly asks, "Was the MLB steroid testing program suspended during the 2004 season? … If the program was suspended, why did MLB fail to inform Congress of this during the 2005 hearing, or at any time thereafter?"

Another question addresses whether MLB told players that testing had resumed: "Following the end of the program suspension, were any of these players informed that they would be tested within a two-week or similar period? Were any other players informed of test results, or of when they would be tested? If players were informed, why did MLB fail to inform Congress of this fact during the 2005 hearing, or at any time thereafter?"

MLB officials declined to address the letters except in a prepared statement by Manfred that stated: "Major League Baseball's testimony before the House Committee on Oversight and Government Reform in March 2005 was completely accurate, and we will reply promptly to the committee's questions."

Reading from a prepared statement, a spokesman for the players' union said, "We look forward to responding to those questions in the near future.''