The use of performance-enhancing drugs (PEDs) is as old as baseball itself. Pud Galvin, a Hall of Famer no less, attempted to inject himself with testosterone extracted from animal testicles, which, eww. Specifically, Galvin’s 1889 cocktail consisted of this:

[S]ubcutaneous injections, of a liquid containing a very small quantity of water mixed with the three following parts: First, blood of the testicular veins; secondly, semen; and thirdly, juice extracted from a testicle, crushed immediately after it has been taken from a dog or a guinea-pig.

Notably, modern science suggests that Galvin’s “beverage” would have had no positive effect whatsoever.

Back in 2003, MLB conducted a series of tests to determine whether players were using PEDs — and, if so, how great the problem was. What happened is now a matter of record: David Ortiz and Alex Rodriguez were among a group of over 100 players who tested positive and the purportedly confidential list got leaked. But as the debate over Ortiz’s Hall of Fame candidacy accelerates in earnest, it’s created a secondary debate over how much that 2003 test should count. As Joe Posnanski notes, the test was supposed to be secret. 

I’m not going to weigh in one way or another on Ortiz’s Hall candidacy; that’s Jay Jaffe’s job, and he does it well. What I am going to do, however, is shed some light on a slightly different but related question: as to those players who used anabolic steroids and other PEDs prior to the current testing and discipline scheme, was doing so illegal?

Let’s start by clarifying one point: MLB banned the use of anabolic steroids back in 1991, so technically anyone using anabolic steroids after that was violating those rules. But as we discussed in the context of footwear, MLB as an organization has to enforce its own rules, or it waives violations. And between 1991 and 2003, MLB didn’t really even test for steroids, so from a legal perspective, its ban probably wasn’t really worth more than the paper it was written on.

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We’ve talked a lot in these pages about stadium deals. We’ve talked about the Marlins and how Miami’s deal with the team deteriorated into a lawsuit. We’ve talked about the Diamondbacks and how their search for a stadium deal resulted in a lawsuit. And in recent years, teams like the Braves and Rangers have decided to construct new stadiums even where the existing buildings were relatively young. Leave it to the Mariners, of all teams, to buck the increasing trend. Per the Associated Press:

The Washington State Major League Baseball Public Facilities District has approved terms of a new 25-year lease with the Seattle Mariners for Safeco Field.

Combined with options for two three-year extensions as part of the agreement approved Wednesday, the new lease could keep the Mariners at the stadium through the 2049 season.

As part of the lease terms, the Mariners agreed to pay 100 percent of maintenance and operations costs at the stadium and “contribute to ongoing capital improvements that will be needed in the decades to come.”

The new lease is five years longer than the original 20-year agreement when the ballpark was constructed and opened in 1999. The current lease was set to expire at the conclusion of the 2018 season.

There are a couple of interesting facets to this deal. Remember when we talked about the Diamondbacks’ lawsuit? That was about stadium maintenance costs, with the team arguing that Maricopa County was responsible for maintaining the facility. But here, the Mariners voluntarily agreed to assume all of the maintenance costs and 80% of required capital expenditures. On one hand, it seems like a great deal for the Washington State Major League Baseball Stadium Public Facilities District (PFD), which owns the ballpark. On the other hand, it’s worth remembering that Safeco Field cost about $520 million, of which $390 million was paid by taxpayers. Unlike some teams, however, the Mariners are making a legitimate effort to repay taxpayers for their initial investment, as Ryan Divish explains:

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The 2018 Draft is unusual. Not in terms of talent, mind you. No, the 2018 Draft is unusual because we have a genuinely unprecedented situation: a potential high-round draft pick with perhaps the most serious baggage a person can possibly have. From THE BOARD, courtesy of Eric Longenhagen and Kiley McDaniel:

**Luke Heimlich

Heimlich is a Level 1 sex offender in Oregon… Heimlich was projected to go in round two last year, when he was a junior. Shortly before the draft, The Oregonian reported court documents that showed Heimlich plead guilty to sexually assaulting his niece. Court records showed the victim reported multiple incidents of molestation between 2009 and 2011, when Heimlich was 14-15 years old and the victim was 4-6. He plead guilty to one count which included a handwritten admission and the other count was dismissed as part of a plea bargain.

After this information surface[d], Heimlich spent the rest of the spring of 2017 away from Oregon State and went undrafted. He returned for his senior season and has pitched well while, amid intermediate media attention, he and his family (except for the immediate family of the victim) denied he committed the crime and say Heimlich plead guilty so the legal proceedings would end more quickly. This situation is abnormal, there’s no precedent for it and it’s unclear why/how a team would go about clearing Heimlich for employment, though ownership would certainly have to be involved.

Let’s take a look at what this means.

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Words matter. In the context of the law, they can make all the difference.

They can also matter quite a bit in the context of PEDs and baseball.

Recently, Robinson Cano tested positive not for a steroid but rather for furosemide, a masking agent. This is how it was covered in the media.

ESPN:

A source familiar with the case told ESPN’s T.J. Quinn that Cano tested positive before the season and appealed. During the appeal, MLB apparently was able to determine his intent, which resulted in Cano dropping his appeal, the source said.

TJ Quinn himself:

Robinson Cano suspended for taking furosemide, a diuretic commonly used to mask PED use. It’s the kind of drug a player is likely to say he took by accident and didn’t help his performance. Eager to hear his explanation, because he has access to certified, clean supplements.

USA Today:

The IPA needed proof that Cano was using the drug as a masking agent.

The investigation revealed that Cano had clear intent to mask another illegal drug.

Cano was charged with a positive test, no different than if he were taking anabolic steroids.

That’s a loaded word, “proof.”

http://gph.is/2Be6wOf

The trouble is that different kinds of proof exist. First, there’s the burden of proof. In other words, whose responsibility is it to prove their case? In civil law, it’s the plaintiff who has the burden of proving its case, and the defense has the burden of proving defenses. But even that is a bit misleading; the defense doesn’t have to prove anything. If the plaintiff doesn’t prove every legally required part of its case, the defense wins even if the defense provides no evidence at all.

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On Wednesday, one of the top stories across the sports world was the National Football League’s institution of a new policy banning players from kneeling in protest during the national anthem.

From ESPN’s Kevin Seifert and Dan Graziano:

 NFL owners have unanimously approved a new national anthem policy that requires players to stand if they are on the field during the performance but gives them the option to remain in the locker room if they prefer, it was announced Wednesday.

The policy subjects teams to a fine if a player or any other team personnel do not show respect for the anthem. That includes any attempt to sit or kneel, as dozens of players have done during the past two seasons to protest racial inequality and police brutality. Those teams also will have the option to fine any team personnel, including players, for the infraction.

A couple of notes here: the policy was unanimous among owners who voted; the San Francisco 49ers abstained from the vote. Also, this policy was evidently something of a compromise; the league was previously throwing around ideas like a 15-yard penalty for kneeling.

The previous policy required players to be on the field for the anthem but said only that they “should” stand. When then-San Francisco 49ers quarterback Colin Kaepernick began kneeling in 2016, the league had no rule it could use to prevent it. The movement drew increasing criticism from President Donald Trump, as well as many fans, who believed it was a sign of disrespect toward the flag and country.

Owners, however, had been divided on how to extricate the league from that criticism. Some owners, including the Dallas Cowboys’ Jerry Jones and the Houston Texans’ Bob McNair, wanted all players to stand. Others, such as the New York Jets’ Christopher Johnson, wanted to avoid any appearance of muzzling players.

Even the seemingly simple option of clearing the field prior to the anthem was rejected by some owners who thought it would be interpreted as a mass protest or at least a sign of disrespect.

But it wasn’t a compromise with the union; the NFLPA said it wasn’t even consulted.

So how does this impact Major League Baseball? More than you might think. There’s actually no rule on the national anthem in MLB right now — there’s not even a rule requiring that it be played at all — which makes baseball unique among the major North American sports. Both the NBA and WNBA require players to stand for the anthem. When asked by Seifert, an MLB spokesman said this:

While this is not a league rule, the playing of the national anthems of the United States and Canada remains an important tradition that has great meaning to our fans. The playing of ‘God Bless America’ at designated games is a club choice.

But the absence of a rule doesn’t mean this isn’t an issue. Orioles center fielder Adam Jones had told USA Today last year that he didn’t expect such a protest to occur — and then, two weeks later, A’s catcher Bruce Maxwell knelt during the national anthem before a game last year.

Maxwell’s decision to kneel came after President Donald Trump — speaking on Friday in Huntsville, Ala., where Maxwell grew up — made reference to NFL players not standing for the anthem as employees who, as he put it, should be fired by their teams. Maxwell, an African-American raised in a military family, joins Colin Kaepernick and other athletes in attempting to raise awareness about brutality and injustice at the hands of authorities by kneeling during the anthem.

Maxwell received relatively little pushback, but then, he was also the first MLB player to kneel during the anthem, at least in the 21st century. He also knelt for just two games, and said himself that his anthem protest wouldn’t continue this season.

So clearly the idea of anthem protests — and a policy banning them — is a controversial one, and the incidents which athletes are protesting continue to occur. It’s also one on which the MLBPA has thus far declined comment. If MLB wanted to create a Rule, like the NFL and NBA, requiring players to stand for the national anthem, could it?

Let’s start by examining some of the more popular tweets from Wednesday.

I hope NFL owners have the courage to come out against the league policy and tell their players they have the right to exercise the first amendment and will not be fined by the team for kneeling or protesting the flag.

— Michael Skolnik (@MichaelSkolnik) May 23, 2018

The NFL banning its players from kneeling is a chilling attack against the First Amendment and a racist policy against the majority African-American players who want to peacefully protest the injustice they face in their daily lives.

— Eugene Gu, MD (@eugenegu) May 23, 2018

Unfortunately the First Amendment doesn’t protect employers from infringing on employees rights to silent protests. Therefore, fuck the @NFL and stay in the locker rooms.

— EB83 (@EB2683) May 23, 2018

https://twitter.com/NotScottInSC/status/999341939261616132

This is a smattering of the prevailing back-and-forth on Twitter, which seems to focus on whether and how this policy impacts players’ First Amendment rights. However…

Before I continue, please note: I am not saying the NFL is correct or incorrect. What I am saying, however, is that just about every non-lawyer in the twitterverse invoking the First Amendment on this issue — on both sides — is absolutely wrong.

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One of the more interesting deals of the most recent offseason was the Cubs’ three-year, $38 million pact with former Rockies swingman Tyler Chatwood. On the one hand, Chatwood had some virtues as a pitcher. On the other, in an offseason during which nearly every free agent received less than expected, Chatwood got $8 million more than Dave Cameron projected in his examination of the 2017-18 class.

Back in December, Eno Sarris wrote for this site that Chatwood, despite his apparent flaws, might be an adjustment or two away from a Rich Hill-type breakout.

You’ve heard of “spin-rate guys,” right? Well, Chatwood is absolutely a spin-rate guy. What’s interesting, though, is that he hasn’t converted that high spin into plus movement. Why? Well, it might have something to do with useful spin. Over time, Chatwood has dropped his arm slot to get more movement on his sinker and more ground balls, probably because he pitched in Coors. That robs his fastball of ride, though, and his curveball of downward movement.

An easy fix might be to just throw the curveball more. He only threw it 11% of the time in 2017. It got over 70% ground balls and above-average whiffs. Batters had a .164 slugging percentage against it last year. And that fits with the spin and movement on the pitch.

With about a quarter of the season in the books, now seems like a good time to check whether that adjustment has come and how the Cubs have fared on their investment.

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Judges love it when litigants reach a settlement. Some judges love it so much that they give each side’s lawyer a token of appreciation for finalizing a deal. I’ve been in front of judges who handed out everything from stickers to candy bars. Last week, the Arizona Diamondbacks settled a lawsuit with Maricopa County. They got themselves a baseball stadium for their efforts.

But first, let’s back up a bit. The Diamondbacks have long wanted a new ballpark. Maricopa County, which owns the current park, wouldn’t let the team leave. So the team sued the county last year.

From Rebekah Sanders of the Arizona Republic:

The Diamondbacks’ lease with the county, which owns the stadium, prevents the team from talking with outside groups until 2024, and requires the team to play in its current home until 2028.

The Maricopa County Superior Court lawsuit is the latest twist in a long-running conflict over which party is responsible for as much as $187 million in repairs and upgrades to Chase Field. The team threatened to sue last year after negotiations with the county broke down.

The county argues that a portion of the upgrades are cosmetic and the team’s financial responsibility, and that the county will have enough money over the long term to meet its share of the obligations. The Diamondbacks counter that the county-run stadium district has not set aside enough money for needed upgrades and is risking safety.

The idea of a new stadium for the Snakes might seem, on the surface, to be ridiculous. After all, Chase Field was only just built in 1998. It’s younger than both Ronald Acuna and Gleyber Torres. That being said, the Team and County have been involved in a protracted legal battle, predating even that lawsuit, over the maintenance of the stadium. That’s because the stadium has had its share of maintenance misadventures in recent history, from burst pipes to failed HVAC systems. And each side blamed the other, with the team saying MLB would require them to move unless the county agreed to pay for repairs, while Maricopa County’s attorney, Cameron Artigue, had a more colorful response.

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Back in March, I wrote about a pending case before the U.S. Supreme Court concerning the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). PASPA is a federal law which makes sports betting illegal — or, more precisely, requires states to make sports betting illegal. The Supreme Court weighed in on Monday, and we have an answer.

From Justice Alito’s opinion:

The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.

This “anticommandeering” rule is what I mostly addressed back in March. Remember that the United States is, basically, 50 separate sovereign entities (the states) which ceded power to a unifying government (the federal government) for important matters — things like a military, a common currency, social-welfare programs. But the federal government has (in theory, anyway) limits on its power: it can only do what the Constitution says it can do. And the Constitution says that the federal government can’t order the states to pass, or not pass, laws. To the Supreme Court, telling the states they couldn’t legalize sports gambling was a bridge too far.

Perhaps most importantly, however, the Supreme Court went one step farther:

[W]e hold that no provision of PASPA is severable from the provision directly at issue in these cases.

Let me explain that. When the court declares a law unconstitutional, it is, in essence, nullifying that law. That’s a principle that goes back to a 19th-century case called Marbury v. Madison. But nullifying statutes is something courts typically do very reluctantly — and so they try, whenever possible, to separate the acceptable parts of laws from unconstitutional ones. In other words, a law with both a constitutional provision and unconstitutional provision would be split in two, with the unconstitutional part nullified and the other part remaining in effect. That’s called “severing” the law. But by saying PASPA wasn’t severable, the Court decided that all of PASPA is unconstitutional, and so all of PASPA is void. That’s actually a really big deal, because part of PASPA concerned prohibiting the advertising of sports gambling, and now that prohibition is gone.

Naturally, this has caused a variety of reactions.

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Mike Clevinger is a pretty great pitcher. He throws 94 mph. He’s cut his walk rate in half since last year. He’s been the best starter so far this season in one of the league’s best rotations.

Mike Clevinger also has pretty great shoes. They’re designed by by artist Jonathan Hrusovsky. Look at these things.

They’re not the typical flashy colors your used to seeing from @Mike_Anthony13 but just know they’re not the typical navy blue cleat either. #hrusovskyscustomkicks #customcleats #wpw #bohemianelephant #redjewel #elephant #jewels #clevelandindians @UABaseball @AngelusDirect pic.twitter.com/nfsPMrymFP

— Jonathan Hrusovsky (@JHrusovsky) May 6, 2018

Ben Zobrist is a pretty great player himself. In his age-37 season, he’s recorded a batting line about 15% better than league average. He still plays multiple positions well. He’s the eighth-best player by WAR over the last decade.

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The Toronto Blue Jays managed the singular feat Tuesday of being no-hit and having that no-hitter register as only the second-worst news of the day. Whenever that happens, you know you’re having a very bad day.

Per ESPN:

All-Star closer Roberto Osuna of the Toronto Blue Jays was charged with assault Tuesday and put on administrative leave by Major League Baseball, preventing him from playing for at least a week.

Osuna assaulted a woman, according to Toronto police.

Now, obviously there’s a lot to unpack here, and we don’t have all of the facts. In fact, at this point all we know is that Osuna was arrested for allegedly assaulting his girlfriend, then released. Multiple sources have confirmed that the incident in question was indeed one of domestic violence. But the Blue Jays had what might be considered an interesting response to the allegations.

“We are taking the matter extremely seriously, as the type of conduct associated with this incident is not reflective of our values as an organisation,” the team said.

Osuna has been placed on administrative leave per Article II of the Joint Domestic Violence, Sexual Assault and Child Abuse Policy in the CBA, a move the team says it “fully supports.”

Let’s start with the Blue Jays’ statement. As a lawyer, among the first things one learns is that words matter, and what struck me about that statement is what was missing from it. Nowhere in that statement is there any qualification, like the words “allegedly” or “if true.”

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