Sketchy evidence for sale. A long-shot lawsuit seemingly filed to intimidate and harass. A cornerstone witness who seems to have the gooey credibility of a roasted marshmallow. Not to put too fine a point on it, but Major League Baseball's investigation into alleged performance-enhancing drug peddling to the likes of New York Yankees slugger Alex Rodriguez and Milwaukee Brewers left fielder Ryan Braun by defunct Florida anti-aging clinic Biogenesis of America already reads like a Carl Hiaasen novel -- and regardless of its final outcome, the whole sordid affair is unlikely to be a first-ballot selection for the Due Process Hall of Fame.
Of course, this is hardly surprising.
You want a Sports War on Drugs? An anti-PED effort that has a decent chance of, you know, catching chemically assisted athletes? Congratulations. This is what it looks like. Dirty and ugly. Invasive and heavy-handed.
Busting Rodriguez, Braun and more than a dozen other major leaguers means begging the Miami New Times, which broke the Biogenesis story, to share clinic documents. It means reportedly paying a former clinic employee for documents linking players to drug purchases, the same way Rodriguez allegedly was buying documents in order to destroy and/or leak them. (!) It means filing a dubious suit against clinic founder Anthony Bosch and others, claiming impossible-to-prove financial and reputation damage, the better to: (a) bleed Bosch's bank account via legal defense expenses; (b) acquire subpoena and testimony-compulsion powers generally reserved for law enforcement. It means entering into an ESPN-reported quid pro quo with Bosch -- a self-proclaimed "biochemist" who previously denied distributing PEDs --in which the oily, Nick Riviera-shaming pretend doctor agrees to cooperate in exchange for MLB dropping its lawsuit, paying his legal bills, indemnifying him from any civil liability, putting in a good word with potential criminal investigators and providing (no, really) personal security.
In other words, prosecuting an effective Sports War on Drugs means mimicking the actual War on Drugs -- in all its murky, messy, ethically challenged non-glory.
"Look, athletes have really gotten down how to handle circumventing drug tests," says Charles Yesalis, a Penn State epidemiologist and sports doping expert. "I don't see how any sane, intelligent person can argue that. Sometimes they slip up, but they know how to do it.
"On the other hand, the one thing about the athletes and their helpers, medical scientists and trainers is that virtually none of them are as knowledgeable as Tony Soprano when it comes to dealing with cops. They are not skilled at evading aggressive law enforcement, sting operations, other undercover operations. If you look at the biggest sports drug busts -- BALCO, the Tour de France -- those were police-directed."
Sports leagues and governing bodies would have you believe otherwise. Reassurance is their product. Drug testing programs are their sales pitch. And why not? Testing provides a sleek, scientific solution to a thorny problem, akin to Hawk-Eye line calls in tennis. In or out. Natural or glow-in-the-dark. Fairer competition through analytical chemistry. FIFA announces biological passports. Baseball announces a new, in-season screen for human growth hormone. All is well. At least until the next major scandal breaks, at which point the knee-jerk reaction from fans, leagues and even Congress seldom varies. We need more tests. Tougher tests. Blood tests. Random tests. Something. Something with technology. An iPhone 6 to replace last year's model. Something that will catch the dastardly cheaters once and for all. When the Biogenesis story first broke in late January, Grantland's Bill Simmons all but begged for a sports-wide overhaul:
… we have the technology now. We can protect clean players from competing against dirty ones. Why aren't we using it? … we need better drug testing. We need blood testing. We need biological passports. We need that stuff now. Not in three years. Not in two years. Now. I don't even know what I am watching anymore …
Of course, there's just one drawback to this line of thinking: As Yesalis notes, testing doesn't really work. Not well enough to consistently identify users. Definitely not well enough to act as a serious deterrent. Every program -- no matter how strict -- has loopholes. Loopholes inside of loopholes. Some are chemical: Athletes and chemists are constantly coming up with new performance-enhancing compounds that are hard to detect because testers don't yet know to look for them. Others are practical: A half-dozen random tests per year won't catch the majority of athletes using, say, fast-acting testosterone creams and patches that clear the body in less than 24 hours. (Are leagues prepared to test athletes every day? Would athletes ever agree to that? Are there that many sample jars in the world? Probably not.)
Lance Armstrong likely was drug-tested more times than anyone in the history of the planet. Testing didn't catch him. Nor did it nab Marion Jones. A few years ago, I had a long phone conversation with BALCO mastermind Victor Conte, a man who knows a few things about sports doping. He ticked off numerous ways to foil current drug testing protocols. He called them "IQ tests" -- as in, you have to be stupid to get caught.
Conte wasn't bragging. He was frustrated. He believes testing can be made more effective. He would like to see that happen. Still, he doesn't think it will ever be a panacea. Yesalis is even less optimistic. The author and co-author of a number of books on PED use in sports, he has been studying the topic for three decades. After President George W. Bush called for the eradication of steroids in professional sports during a 2004 State of the Union address, I asked Yesalis two questions:
1. Was Bush's demand reasonable?
2. Was it even practical?
"When the Mark McGwire scandal broke, I said one thing you could do is have all these sports federations pool $100 million each and give it to chemists around the world, give them five years and see what research does to close loopholes," he told me at the time. "Frankly, I wouldn't bet my house on that. With every loophole that closes up, another one opens."
Remember THG, the designer steroid at the heart of the BALCO scandal? It was engineered to be undetectable. Disgraced sprinter Kelli White passed tests while using it. So did Jones. Testers only caught it when disgruntled track coach Trevor Graham slipped them a THG sample, reportedly in a used syringe.
"What would work?" Yesalis continued. "Aggressive, undercover police sting operations. I'm talking handcuffs. Put it on 'Cops.' But are you willing to do that against Penn State, USC, the Baltimore Ravens, the Los Angeles Lakers, on a sustained basis?"
Yesalis had a point. Still does. Unlike testing, police work truly works. The reasons? Cops can obtain wiretaps and search warrants. Prosecutors can force witnesses to testify before grand juries. Investigators have power, leverage. The threat of prison time can be incredibly persuasive.
A federal investigation led by then-Internal Revenue Service agent Jeff Novitzky broke open the BALCO case. Testimony obtained through a federal investigation broke cycling's powerful code of silence and gave the United States Anti-Doping Agency the ammunition it needed to take down Armstrong. State and federal investigators nabbed a South Carolina doctor who filled illegal steroid prescriptions for three members of the Carolina Panthers' 2004 Super Bowl squad. In 1998, customs officials at the French-Belgian border uncovered the biggest drug scandal in Tour de France history; less than a decade later, Spanish police conducted a series of drug raids that eventually resulted in suspensions for cyclists Ivan Basso and Alejandro Valverde and a belated confession from Jan Ullrich. Former New York Mets clubbie Kirk Radomski named names in the Mitchell Report to secure a plea bargain on pre-existing charges of money laundering and steroid distribution. In February, the Australian Crime Commission released the results of a year-long investigation that found widespread PED use across all sports, including a pig-brain extract drug that isn't on the World Anti-Doping Agency's banned list because it has yet to be approved for human use.
Go back to the current Biogenesis case. It resembles an aggressive drug sting, with MLB in the role of law enforcement. Baseball investigators paid for case-building documents, the way police pay confidential informants. They used a lawsuit -- a potentially expensive proposition -- to pressure Bosch into rolling on his alleged clients. (According to ESPN, Bosch is nearly broke, living alternately with family members and friends, and has tried unsuccessfully so far to revive his "wellness" business -- all of which has made cooperating with MLB attractive.) Perhaps frustrated by Rodriguez's utter shamelessness and Braun previously beating a positive drug test via a procedural technicality, the league has eschewed the laboratory in favor of dogged detective work. It's a novel approach, "Zero Dark Thirty" without the torture scenes, and one that raises some unsettling questions.
Does anyone actually want this kind of anti-drug policing? Is the juice -- in this case, juicing -- worth the squeeze?
The actual War on Drugs is an unabashed policy failure, rife with Bill of Rights abuses and encroachments, sloppy police work and overzealous prosecution. Plenty of people have gone to jail; billions of dollars have been spent; the nation's drug habits remain largely the same. The federal War on Drugs in Sports hasn't fared much better. During the BALCO investigation, Novitzky didn't always fight fair: While raiding a drug-testing lab in 2004, he used a warrant for the confidential tests of 10 baseball players to seize thousands of records. According to a later report in ESPN the Magazine, three federal judges reviewed the raid. One asked, incredulously, if the Fourth Amendment had been repealed. Another called Novitzky's actions a "callous disregard" for constitutional rights. All three instructed him to return the records. Instead, the magazine reported, Novitzky kept the evidence -- the same evidence subsequently deemed inadmissible during the Barry Bonds trial, a case that ended in humiliating fashion for the federal government, much like Roger Clemens' perjury case.
Baseball risks similar overreach with Biogenesis. In the Clemens trial, prosecutors were undermined by the shaky credibility of star witness Brian McNamee, the pitcher's former personal trainer; compared to Bosch, who reportedly asked Rodriguez for money before turning state's witness, McNamee is practically George Washington felling a cherry tree. By paying for evidence, MLB investigators may end up undercutting both their case and reputations, the same way the NCAA has embarrassed itself during a botched investigation into a booster at the center of a University of Miami scandal.
According to reports, baseball also may seek second PED offense suspensions of 100 games for Rodriguez, Braun and others, operating on the theory that taking drugs and then lying about said use counts as two separate doping offenses -- an iffy theory that is sure to be vigorously contested by the players' union, regardless of individual members' guilt or innocence.
In a larger sense, all of this will be unsightly. Most of it will be public, leaked to the press in drips and drabs. Rather than producing a neat and tidy outcome -- cheaters caught, justice prevails, the Steroid Era remains over! -- baseball's attempt to play Crockett and Tubbs could end up producing an inconclusive, desultory narrative about process, about an un-winnable game of cat and mouse, turning off the very fans it seeks to reassure. It could be baseball's Bountygate. Nearly a decade after Bush's speech, the federal government has mostly abandoned the Sports War on Drugs. According to Yesalis, there's a good reason for that.
"The feds tried hard," he says. "But they lost in the end. Barry Bonds is not in jail. And it didn't look that good, anyway. Given the cost, given the bad publicity, given that there was a significant amount of public disagreement with that use of resources, I can see why they aren't doing more of it.
"Imagine an undercover operation going against UCLA or Michigan, our real, real sacred cows. I don't know if anybody in state or federal government would have the political fire in their belly to attempt that. I've not seen any demonstrations at the steps of the Capitol or outside the White House to stop doping in sport. If they really went after professional and college and Olympic athletes, I don't think it would curry favor with voters."
When news broke earlier this week that Bosch would cooperate with MLB, my colleague Will Leitch asked a simple question: Is PED use actually a problem for baseball, so much so that it prevents fans from enjoying the sport? Attendance figures suggest otherwise. So do ever-expanding television contracts. And not just for baseball. For the National Football League. For college football. For basketball. For the Olympics. For every sport, really. As MLB pursues the Biogenesis case with Javert-like zeal, perhaps it has things backwards. Perhaps police action is too much. Perhaps testing is more than enough.
Perhaps the doping polices that work best are the ones that don't.
"Look, the best way to deal with [drugs in sports] is for all fans to boycott," Yesalis says. "It would be cleaned up almost instantaneously. But nobody gives a damn. In fact, these drugs make the product better for viewing and enjoyment. Do you want to watch a beauty contest where everyone is overweight and wearing no makeup?"