Opinio Juris

I read with interest the Mitchell Report on the illegal use of steroids and other performance enhancing substances. The section that particularly grabbed my attention was the governing law (pp. 18-24). Of central importance to the report is how one defines the "illegal" use of steroids and other performance enhancing substances. Here are a few key sections from the summary and the report (pp. SR10, 19):

Anabolic steroids are listed as controlled substances under the federal Controlled Substances Act. Since 2004, the dietary supplement androstenedione and other steroid precursors have been as well. That means that it is illegal to use or possess steroids or steroid precursors without a valid physician’s prescription. Violations of this law carry penalties similar to those applicable to the illegal use or possession of narcotics. Human growth hormone is a prescription medication. It is illegal to issue a prescription for human growth hormone except for very limited purposes. Human growth hormone never has been approved for cosmetic or anti-aging uses, or to improve athletic performance. Issuing a prescription for human growth hormone for any of these unauthorized purposes is a violation of federal law….

There is a widespread misconception that the use of steroids and other performance enhancing substances, such as human growth hormone, was not prohibited in Major League Baseball before the inclusion of the joint drug program in the 2002 Basic Agreement. In fact, as early as 1991 baseball’s drug policy expressly prohibited the use of “all illegal drugs and controlled substances, including steroids or prescription drugs for which the individual … does not have a prescription.” Even before then, however, the use of any prescription drug without a valid prescription was prohibited in baseball, and even earlier under federal law. In 1971, baseball’s drug policy required compliance with federal, state, and local drug laws and directed baseball’s athletic trainers that anabolic steroids should only be provided to players under a physician’s guidance.

Problem is, under traditional rules of extraterritoriality, the federal regulation of the use of performance enhancing substances does not obviously apply when such use occurs in other countries. And various sections of the Mitchell Report detail allegations of “illegal” use in Canada, Venezuela, and the Dominican Republic. (See pp. 33, 46-47, 95-99, 104-05, 204, 278-79).

I am not suggesting that the use of those substances is permitted in any of those countries. But from my reading of the Mitchell Report, it appears that the report omits materially relevant information about the governing law regarding the use of those substances outside the United States. There is almost no mention of Canadian law, and there is no mention whatsoever of Venezuelan law, Dominican Republic law, or for that matter, the 1971 Convention on Psychotropic Substances. Nor is there any explicit reference to the extraterritorial application of federal law to regulate the use of these substances abroad.

The syllogism drawn from the Mitchell Report appears to be that (1) Major League Baseball’s drug policy prohibits the use of “illegal” substances, (2) “illegal” substances are defined by reference to federal law, and (3) therefore, the use by any player of performance enhancing substances anywhere in the world violates Major League Baseball’s drug policy.

I’m not clear that that conclusion follows, although I am willing to be persuaded.