Evidence in Mitchell report may limit Selig's punishment options

Updated: December 19, 2007, 9:05 PM ET

Baltimore Orioles second baseman Brian Roberts got his name in the Mitchell report on the flimsiest of evidence: Former teammate Larry Bigbie told investigators that Roberts admitted injecting himself with steroids "once or twice."

No unmarked packages mailed to Camden Yards. No canceled checks retrieved from the files of a shady clubhouse mule. No failed drug test, no trainer saying he squeezed the syringe, no physical evidence of any kind.

No prosecutor would bring a case that thin to court. No jury would convict, if he did. No trial was needed -- Roberts admitted this week he once tried steroids.

Former Senate majority leader George Mitchell didn't wait for that confession. Bigbie's allegation was enough to put Roberts' name in the report that laid bare the drug culture of baseball's steroids era.

"I don't think you could convict somebody on the evidence he has," said Howard Wasserman, who teaches evidence at the Florida International University College of Law and writes about sports law. "There were a couple that were really weak, the ones where it was just [one person's] word and nothing else. But there is a pretty good circumstantial case for a lot of them."

While commissioner Bud Selig digests the 409-page report on performance-enhancing drugs in baseball, his options for discipline are limited by the quality of evidence that Mitchell obtained and when the alleged conduct occurred.

Mitchell himself said punishment was not his goal.

"This is not a legal proceeding. That's for others to decide. Let's be clear about that. This is a private investigation, without any power to compel cooperation or participation. It is not a judicial proceeding. It is not a trial," Mitchell told The Associated Press last Friday, a day after he released the report.

In many cases, players were branded as cheats with evidence that probably would not be enough to convince a jury or judge to convict them in a criminal court. Others juiced before baseball added steroid testing to the collective bargaining agreement in September 2002, making the case for punishment tenuous.

"I think overall most of the information that he refers to took place well before our testing program was in its current form," union head Donald Fehr said this week. "And I'm confident that our program now detects the steroids it is possible to detect."

While Fehr and Selig boasted about the quality of baseball's current drug-testing program, the Mitchell report detailed a dysfunctional -- if not irrelevant -- past that allowed users to shoot up without consequences. Few have disputed Mitchell's conclusion that baseball was rife with steroids for much of the 1990s, but some of his claims about individual players fall short of the standard of proof Americans traditionally grant the accused.

And, in the legal system, it is often the standard of proof that determines the outcome of a case as much as the evidence.

While a criminal charge must satisfy the stiff burden of "beyond a reasonable doubt," a civil suit needs to show only a "preponderance of evidence" -- that is, it's more likely true than not; it's how O.J. Simpson could be found not guilty of murdering his wife and Ron Goldman but still be held liable for their deaths.

Selig is bound by a much lower standard -- "just cause" -- if he tries to punish players for steroid use. He would also need to show in arbitration, if the union files a grievance, that any decision is fair relative to how other players have been punished in the past.

"The players' association would contest what appears to be a pretty low threshold to punish players," said Michael McCann, who teaches at the Mississippi College School of Law and contributes to the Sports Law Blog. "I think the report is only partly convincing."

Mitchell was not bound by a specific standard, although malicious or reckless defamation of the innocent would have exposed baseball to a libel lawsuit. The longtime Boston Red Sox fan -- and current director of the club -- said he wanted to produce a document "that will comport with basic American values of fairness."

"No player is identified in this report on the basis of mere suspicion or speculation," Mitchell wrote, adding that at least three were omitted: two because the purchases they were accused of came after their careers ended, and one because he offered evidence that he never used the drugs he bought.

"Mitchell's reputation is on the line, and I think he had a strong incentive to be extraordinarily cautious," McCann said. "This is a guy who had a great legacy achieving peace in Northern Ireland and other parts of the world. I see him setting the bar pretty high. But there's always the sense of, 'Whom is he relying upon there?"'

To some, the report includes claims that are only slightly more credible than speculation. Many players were identified based on four interviews with New York Mets clubhouse attendant Kirk Radomski, who has pleaded guilty to felony charges of distributing steroids and money laundering and faces up to 25 years in prison.

Roger Clemens was fingered by former Toronto Blue Jays and New York Yankees strength coach Brian McNamee. The seven-time Cy Young Award winner denied using performance-enhancing drugs, and his lawyer said Clemens "is outraged that his name is included in the report based on the uncorroborated allegations of a troubled man threatened with federal criminal prosecution."

Welcome to justice, American-style.

"This happens in the criminal justice system all the time. He cut a deal; he agreed to talk," Wasserman said. "A large number of people are being convicted off of evidence provided by other wrongdoers.

"That's essentially what happened with Michael Vick: Everybody who was arrested with him cut a deal. Pete Rose -- his gambling partner was a really disreputable character. But he had the firsthand information."

Mitchell spoke to only two current players, Jason Giambi, who was pressured by Selig to cooperate, and Frank Thomas, who was not implicated.

Claims by fellow lawbreakers are frequently discounted -- but not disregarded -- by those considering the facts. Radomski produced canceled checks and phone records that support his recollections, and several of the players he identified have admitted he was substantially correct.

"If one does unethical things in their lives, is this someone we want to rely upon?" McCann said. "He made money based on an untruthful exchange, and now we're going to take his word?"

Roberts was apparently included based solely on Bigbie's claim.

"That's the irony," McCann said. "If there's one guy who could contest it, it seemed like Roberts."

Others 'fessed up to some of the claims in Mitchell's report but disputed some of the other details.

Former All-Star second baseman Fernando Vina said he used HGH but denied buying steroids from Radomski, as the report claimed. Reliever Brendan Donnelly acknowledged calling Radomski to ask about Anavar but said he backed out when he realized it was an anabolic steroid.

None of these claims, if true, could be the basis of a defamation suit, Wasserman said. As public figures, ballplayers would have to prove that baseball, through Mitchell, acted with malice or reckless disregard for the truth.

More importantly, they're going to have to prove the statement was false, and significant.

"Any defamation case is going to litigate whether or not this player used steroids," Wasserman said. "If the player can't prove he didn't use steroids, he can't prove the defamation and he's not going to win. Which is why I think we're not going to see any of these cases."

McNamee alleged he personally injected Clemens with Winstrol, Deca-Durabolin or HGH more than a dozen times, claims that were buttressed when Andy Pettitte acknowledged that McNamee had injected him with performance-enhancing drugs.

Fehr declined to comment on the allegations against individual players because he wanted to talk to them first.

"It's terribly difficult to contact players at this time of year, so it's going to take a while. There's not a lot I can say," Fehr said. "Players are going to need, obviously, to read it, those who want to, and I suspect there will be a number of them."

Although Selig gave Mitchell an open-ended mandate, the investigation was hampered by his inability to force players to testify. Without subpoena power, Mitchell was forced to piggyback on federal investigations and media reports, including the book "Game of Shadows" that details Barry Bonds' steroid use.

Mitchell summarized the case others have made against Bonds without providing new evidence. But the report could be a factor if the all-time home run king goes to trial on charges that he lied to when he told a grand jury that he never knowingly used performance-enhancing drugs.

"What this presents is an atmosphere of common knowledge in the sport," Golden Gate University School of Law school professor Peter Keane said. "The fact that this was so widespread takes away any claim of ignorance or naivetDe. That kind of defense comes down in flames."

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