Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Thursday, November 15, 2007

The Bonds Indictment

Now that Barry Bonds has been indicted on perjury and obstruction charges, the odds that he will be kept out of the Hall of Fame and/or be stripped of his single-season and career home run records have substantially increased. To some extent, this is simply a matter of evidence. Should Bonds be convicted or plead guilty, there will be no reasonable doubt that he in fact used performance-enhancing drugs. The basis for the perjury charge, after all, is that Bonds was lying when he said that he did not knowingly use the drugs, so a conviction for lying will be the equivalent of a conviction for using the drugs. There will no longer be any basis for plausible deniability.

But I suspect that some number of people will also think that the fact of a conviction itself (if one is obtained) will be a reason to keep Bonds out of the Hall and strip him of his records, apart from what it says about his use of performance-enhancing drugs. Being branded a felon will, in their eyes, make him unworthy of the Hall and keeping his records, quite apart from what it says about his drug use. At some level, this makes little sense. Perjury and obstruction are serious offenses but no more serious than other offenses committed by professional athletes (including acts of violence) that do not completely tarnish their athletic achievements.

Not that I'm defending Barry Bonds. I'd only do that if he had played for the Yankees.

Posted by Mike Dorf

posted by Michael C. Dorf @ 9:44 PM  

16 Comments:

  • At 9:33 AM, Blogger Paul said…

    It is possible that he will be kept out of the Hall, though my guess is that even if he admits to PED use, he will be in the HoF. The most this will do is a McGuire-esque first vote protest.

    I see no mechanism by which he will be stripped of his records.

    I may change my mind on the later if they can establish good evidence of his doping after 2005. If, as the indictment seems to suggest, any evidence of doping comes between 2001 and 2003, then Bonds may be a criminal, but he would not have broken any rule of the game.

     

  • At 9:45 AM, Blogger Cavalor Epthith said…

    From a legal standpoint could Bonds argue that his records should remian in place based upon the fact that he was not convicted of anything prior to his setting them or before the 2005 ban? My sport is cricket where a real scandal would be someone being found intoxicated while batting a century. The whole mess points to the devolution of real competition in the name of increased luxury box occupancy and apparel marketing.

     

  • At 7:06 PM, Blogger James said…

    How is it possible the Barry Bonds could be "stripped" of his records? He has hit 762 (I think) home runs. If he's convicted and thrown into jail tomorrow, he will still have hit 762 home runs.

    There's no way to change that, other than to declare all of those 700+ games null and void. Major League Baseball isn't going to go back to that Pirates-Reds game from 1990 and change the score from Pirates 4 Reds 3 to Reds 3 Priates 1, on the basis that Bonds's 3-run homer is now nullified.

    A record is not an award, like a gold medal. Ben Johnson could be stripped of the gold medal in 1988 because his 9.79 second sprint was tainted, and thus the gold medal could be awarded to the second place finisher. He couldn't be "stripped" of having run 100 meters in 9.79 seconds, because he did that.

    In baseball there's no gold medal for hitting the 756th homer. You're just #1 at the top of the list. There's no way Barry Bonds isn't #1 at the top of the list until A-Rod hits #763.

    But by all means, keep him out of the Hall of Fame!

     

  • At 7:08 PM, Blogger James said…

    Also, now that the govt. has taken care of Bonds, when can we expect the Bill Belicek indictment?

     

  • At 10:17 AM, Blogger egarber said…

    This post has been removed by the author.

     

  • At 10:22 AM, Blogger egarber said…

    But by all means, keep him out of the Hall of Fame!

    I've actually seen the opposite argument in various places: he was good enough to be a HOF' er pre-scandal; however, the record at least deserves an asterisk given that it was enabled by artificial means.

    Here's the worst part for me though.
    Hammerin' Hank fought death threats and racism as he approached the record. That had to be a lonely pursuit. All he was fighting for was the right for players to compete on their talent, where artificial advantages -- back then, it was the color barrier of course -- would be destroyed once and for all.
    So how does Bonds pay him back? By breaking his record via an artificial advantage (assuming he was doping). That's the lesson Bonds learned from Hank's legacy?

    I don't blame Aaron one bit for being bitter about any of this. He's the real hero, imo.

     

  • At 12:30 PM, Blogger Neil H. Buchanan said…

    Regarding the claim that Bonds "was good enough to be a HOF'er pre-scandal," subsequent bad acts can -- and in this case have -- swamped prior meritorious acts.

     

  • At 8:14 PM, Blogger James said…

    I agree with Neil Buchanan.

     

  • At 8:17 PM, Blogger James said…

    Sorry I meant to write more. I agree with Neil Buchanan. Shoeless Joe and Pete Rose were good enough to go into the HOF before their bad acts, too. What Bonds -- and McGwire and Sosa -- have done isn't violative of baseball's #1 commandment (no betting on baseball), but comes pretty close in terms of diminishing the integrity of the game.

     

  • At 8:59 PM, Blogger egarber said…

    Shoeless Joe and Pete Rose were good enough to go into the HOF before their bad acts, too. What Bonds -- and McGwire and Sosa -- have done isn't violative of baseball's #1 commandment (no betting on baseball), but comes pretty close in terms of diminishing the integrity of the game.

    Just for the record, I was only saying that I've heard that argument -- I'm not sure what I think about it.

    But I must say you make an excellent point when you cite Shoeless Joe. I guess it might hinge on whether Bonds used steroids AFTER the rule was put in place. At least then you'd have a pretty exact analogy with Joe (a clear rules violation). I'm not saying I buy into the whole ex post facto defense of Bonds, but I do think the pre / post baseball rules line is at least partially meaningful.

    As an aside, I gotta plug Eight Men Out again (I've done so before on the blog). Great book.

     

  • At 12:26 PM, Blogger AF said…

    Shoeless Joe Jackson and Pete Rose were permanently banned from baseball, and as a consequence, ineligible for the HOF. Are people suggesting that Bonds should be permanently banned from baseball for having used steroids? This would be exceedingly odd, given that the current penalty for using steroids is not a permanent ban, but a 50-game suspension. And if Bonds is not permanently banned from baseball, the Shoeless Joe and Pete Rose precedents are inapposite.

    It is rather clear that steroids use was widespread in baseball in the early 2000s, at a time when the sport did not specifically prohibit steroid use. Baseball then instituted a steroid policy that stops short of zero-tolerance, and it would be very strange if those who used steroids prior to this policy were dealt with more harshly than those who violated the policy.

    Baseball needs to come to terms with the legacy of its steroids era as a whole. This involves leaving out of the HOF those players whose ostensible greatness may well be attributable to steroids (eg, Rafael Palmeiro), celebrating those players who did not take steroids (eg, who knows?), and placing steroids-era records in contexts (just as, for example, dead-ball era pitching records such as Cy Young's 511 career victories must be put in context). It does not involve singling out individual steroids users such as Barry Bonds and Mark McGwire for Draconian punishment such as lifetime bans from the Hall of Fame.

     

  • At 4:52 PM, Blogger egarber said…

    This would be exceedingly odd, given that the current penalty for using steroids is not a permanent ban, but a 50-game suspension.

    Actually, I don't think this is right. I'm pretty sure the rules were updated to allow for lifetime bans after the third offense. Somebody correct me if I'm wrong. If I'm not mistaken, the last update came in 2005 (roughly). Still, if parity with Shoeless Joe and Pete Rose requires a ban, the Bonds case will likely fall short. I suppose something could come out about his post 2005 behavior, but at this point I'd say it's a long shot that he'd be put on the ineligible list (which by rule would keep him out of the Hall, as was the case with Joe and Pete).

    However, I think the standard voters must apply in Hall consideration is pretty broad -- though they typically look at on-field performance, they technically can keep a guy out if major questions of "integrity" arise. We haven't seen many arguments against a guy's induction when it comes to personal drug abuse problems. But steroids are different, since the whole point of juicing is to create an artifical advantage on the field. That's the kind of tarnish that (imo) puts steroid use in the same general boat as gambling / cheating.

    So even though Bonds may technically fall short of the Joe / Pete test, he may be close enough to it that he loses out in actual voting.

     

  • At 5:24 PM, Blogger AF said…

    Actually, I don't think this is right. I'm pretty sure the rules were updated to allow for lifetime bans after the third offense. Somebody correct me if I'm wrong.

    You're right, but I don't see how you justify comparing Bonds's situation to a third offense. Bonds hasn't failed a steroids test even once. His next steroids offense will be his first.

    As for the Hall voters, of course they can apply any standard they want. But the only way they could justify keeping Bonds out would be if they also kept out virtually every superstar of his era. If, as appears to be the case, steroid use was widespread in baseball for a number of years, it is untenable to keep out those for whom the evidence of steroid use is strong (eg, Bonds, Sosa, McGwire), while voting in others who also show tell-tale signs of steroid use but for whom the evidence is less strong (eg, Pedro, Clemens, Sheffield).

    A more justifiable position, which also seems to be the growing consensus among sportswriters, is that players' greatness should be viewed in the context of their era. There will be HOFers from the steroids era, just as there were from the Jim Crow era, the greenie era, the cocaine era, etc. It makes no sense to single out retroactively, among all the steroid users, the players who happen to have particularly bitter acquaintances and particularly aggressive journalists and prosecutors willing to prove that they did what so many others also did.

     

  • At 5:25 PM, Blogger egarber said…

    So even though Bonds may technically fall short of the Joe / Pete test, he may be close enough to it that he loses out in actual voting.

    Or maybe a better way to say it is to apply Kennessaw Mt Landis' famous quote after the Black Sox scandal:

    "regardless of the verdict of juries, baseball is entirely competent to protect itself against crooks, both inside and outside the game."

    Only with Bonds, et al, we're talking about Hall voters saying, "regardless of the technicalities of the ineligible list....."

     

  • At 5:32 PM, Blogger egarber said…

    You're right, but I don't see how you justify comparing Bonds's situation to a third offense.

    Actually, I said it was unlikely to get that far. I was only making the point that it's possible to be banned via the steroids rules -- i.e., the ceiling is more than 50 games.

    I think the real question will come down to the voters case by case.

     

  • At 2:26 AM, Blogger James said…

    AF writes: "But the only way they could justify keeping Bonds out would be if they also kept out virtually every superstar of his era."

    Virtually every superstar? That's simply false. It's accepted as fact that Ken Griffey Jr. and Derek Jeter have never taken steroids. I doubt that Maddux, Glavine or Rivera have. You mention Pedro Martinez. What evidence do you have that he's taken steroids? The era that you speak of lasted perhaps 7-8 years. If the HOF classes for 7-8 are thin (no pun intended) that's better than baseball losing its honor.

    Your defense amounts to "everybody did it, so you can't 'punish' anyone". It's tantamount to defending bribe-taking in today's Russia because everyone does it. Why not reward people who've achieved their success ethically and refrain from rewarding (not "punishing") people who did not? No one is suggesting a lawsuit to recover the millions that Bonds, Sosa and McGwire made, or that there should be any kind of punishment other than for Bonds's perjury. Rather, we're arguing that they shouldn't be further glorified.

    As for the idea that people shouldn't be singled out based on more evidence, that isn't convincing either. Yes, if Bonds had only expanded his head by 20 percent rather 50 percent and only drew 140 walks rather than 232, it wouldn't have been so obvious. Too bad for him.

    IN: Maddux, Glavine, Jeter, Rivera, Griffey.

    OUT: Bonds, Sosa, McGwire, Palmeiro.

    Everyone else should be judged on a case by case basis. If you can actually adduce evidence that Clemens took steroids, then yes he should be OUT as well.

     

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