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From Wiki Gonzalez

On December 16, 2004, The Hardball Times had an article entitled The Steroid Controversy (http://www.hardballtimes.com/main/article/the-steroid-controversy/) by Kevin Gilligan and Joseph Capizzi. Not included in the article was a look at the legal aspects of steroids and baseball which was authored by John Smith aka Backlasher. The text of this follows:

The use, distribution, sale, possession and manufacture of performance enhancing drugs and substances (“PEDs”) by Major League Baseball (“MLB”) players is governed by state law, federal law, and the contract between the player and his MLB club. The PEDs alleged to have been involved in the Bay Area Laboratories Company (“BALCO”) matter are: Clomid, a female fertility drug; an injectable form of testosterone; “the cream”, a topical form of testosterone; “the clear”; a liquid form of tetrahydrogestrinone (“THG”); human growth hormone (“hGH”); modafinil, a psycho-stimulant; and ZMA, a nutritional supplement manufactured by BALCO. The leaked grand jury transcripts show testimony by Jason Giambi that Giambi also used Deca Durabolin, a steroid, in 2001. Other substances involved in the PEDs debate include creatine and androstenidone (“andro”).

Federal authority to sanction conduct relating to PEDs may be found in Chapter 21 of the United States Code (“Federal Food, Drug, and Cosmetics Act”). The Federal Food, Drug and Cosmetics Act gives the FDA authority on just about any substance that will be ingested, inhaled or absorbed through the skin into the human body. The Federal Food, Drug, and Cosmetics Act has been amended many times since its initial passing in 1938. The most relevant of those amendments have been the Dietary Supplement Health and Education Act of 1994 (“DSHEA”), which defines a category of items as supplements, and the Controlled Substances Act (“CSA”), which provides for broader penalties for certain types of drugs.

Specifically, the CSA establishes five schedules for controlled substances. In order for a drug to be scheduled, the drug must be considered to be of limited therapeutic value, harmful, and prone to abuse. Decisions on changes to drug schedules are frequently made by an administrative procedure involving the Drug Enforcement Agency and the Secretary of Health and Human Services. Presently, there are five schedules for controlled substances with schedule I drugs being considered substances that have no therapeutic value.

Each of the players that testified in the BALCO grand jury hearings were granted immunity from federal criminal prosecution, so any admission by the players cannot be prosecuted in a federal court. Absent the grant of immunity, the BALCO witnesses would certainly be facing potential federal sanctions. The precise sanctions would depend on the definition of the substance, and the behavior of the athlete with the substance. Clomid is a prescription drug. Modafinil would be a Class IV scheduled Drug. Testosterone and Deca Durabolin would be Class III controlled substances. ZMA, creatine, and andro are supplements. hGH and THG require special treatment and analysis.

    Any PEDs that are misbranded and introduced into interstate commerce carry a penalty of $1,000, up to one year in jail, or both.   Any supplement introduced into interstate commerce that is dangerous or toxic to human beings carries a similar penalty.   Any person that has bought any drug, regardless of its schedule, that they knew was intended to be a drug sample, could face up to 10 years in prison, a $250,000 fine, or both.   First offenses for the knowing possession of a schedule III substance carries a penalty of not more than a $250,000 fine or up to a 3 year prison sentence, or both.  First offenses for possession of a schedule IV substance carries a penalty of not more than a $100,000 fine, up to a 1 year prison sentence, or both.   Possession with the intent to distribute hGH carries a penalty of up to five years in prison.   Today, the knowing possession of THG would carry a penalty not more than a $250,000 fine or up to a 3-year prison sentence, or both.  In past years, the knowing possession of THG could carry a similar penalty, but that would depend on a legal establishment that THG was an anabolic steroid pursuant to the previous legal definition of an anabolic steroid.  Penalties for drug offenses are even higher for persons involved with the manufacture and distribution of many of these substances.

None of the athletes involved in the current PEDs controversy appear to have any ties to manufacturing, distribution or sale of any food, drug, supplement or cosmetic. Therefore, unless new evidence materializes, the athletes would have no culpability under federal laws criminalizing manufacturing, distributing, or misbranding substances. Most of the existing evidence indicates that the drugs were purchased from BALCO, and no evidence suggests that an athlete believed they were buying drug samples, or that they bought enough quantity where they would likely resale the drugs to another. Therefore, unless new evidence materializes, the athletes would have no culpability under federal laws criminalizing purchasing substances or possessing substances with the intent to distribute. Whether the MLB players knowingly possessed substances would require novel legal analysis.

Some players, like the Giambi baseball family, have admitted to physically holding substances and personally injecting substances into their own body. Moreover, the Giambi baseball brothers indicate they knew precisely the names of certain substances, which were previously expressly banned. All athletes exhibiting this type of behavior would face potential federal criminal liability for possession. Other players, like Barry Bonds and Gary Sheffield, indicate that Greg Anderson administered all the drugs. Moreover, they did not know what the drugs where that were being administered. If you find these statements credible, these athletes may not have knowingly possessed the substances, and could escape liability under any federal laws criminalizing the possession of substances. If you do not find these statements credible or you find that Bonds and Sheffield directed Greg Anderson to administer the drugs, they too could be culpable under federal possession statutes.

Although the precise grant of immunity given to the BALCO witnesses is unknown, each state will presumably respect the federal grant of immunity. Absent this agreement from law enforcement officials, the BALCO witnesses and other MLB players who have used PEDs could also be subject to prosecution under state law. Most states have laws and penalties for scheduled drugs that correspond to the federal statutes. Minor changes in the law can be seen from state to state. For instance, Colorado law will make the use of hGH a misdemeanor and the possession of hGH a felony. Therefore, the use of hGH could be criminal depending on where the athlete actually used the substance. For a more comprehensive overview on the various state laws that deal with PEDs, please refer to the book LEGAL MUSCLE: Anabolics In America.

Any grant of immunity given to the BALCO witnesses will not extend to civil and workplace penalties for MLB players. The right to discipline and the limitation of the right to discipline is granted by the players through the Collective Bargaining Agreement (“CBA”) between the Major League Baseball Players Association (“MLBPA”) and MLB. Each individual player also has contractual rights and responsibilities with the MLB club they play for pursuant to the contract they signed with the club. Each contract must contain the essential terms shown in Schedule A to the CBA, the Uniform Player Contract (“UPC”). MLB has a right to discipline any player for just cause pursuant to Article VII of the CBA. MLB players covenant to abide by the Club’s training rules and maintain high standards of personal conduct pursuant to paragraph 3(a) of the UPC (“the morals clause”). MLB Players warrant that they have specialized skills and is not aware of any physical or mental condition that would prohibit his performance as an MLB player in paragraphs 4(a) and 4(b) of the UPC (“the fitness representations”). However, the CBA specifically addresses procedures for Drugs of Abuse in Attachment 18, which calls out for specific penalties, testing procedures and methods for adding PEDs to the list of Drugs of Abuse.

As a result, the current MLB players are unlikely subject to discipline by MLB or their baseball clubs beyond what is already addressed in Attachment 18. Specifically, the players are unlikely to face more than a 15 to 30 day suspension for the first time use of PEDs, and that suspension would only occur if they are convicted of a felony for scheduled drugs or outright refuse to comply with the testing procedures. If a player simply has a positive test for PEDs, they are merely tested more often. It would take five positive drug tests, four refusals to test, or three felony convictions before a player would even receive a 1-year suspension for using PEDs. Moreover, the list of prohibited substances basically mirrors the federal list of controlled substances and does not address potential over-the-counter supplements that could have performance enhancing qualities.

Arguably, an MLB club could still void or cancel a contract with the MLB player for using PEDs pursuant to the morals clause or the players’ fitness representations. In other sports, upholding a morals clause has been very difficult. The Golden State Warriors were unable to void Latrell Sprewell’s basketball contract, which contained a similar morals clause, after he choked his basketball coach, PJ Carlismo. The Colorado Rockies are presently attempting to void the contract of Denny Neagle after he was arrested for solicitation; however, the final outcome of their efforts is still unknown. John Donovan of Sports Illustrated reports that both the New York Yankees and the Baltimore Orioles have made inquiries to their lawyers about the possibility of voiding player contracts because of fitness representations. Neither club has vigorously pursed this legal strategy. Because the CBA specifically addresses the penalties for Drugs of Abuse, including felony convictions for Drugs of Abuse, a MLB team would be facing a difficult legal challenge in voiding player contracts for any use of PEDs.

external link: Musclepacked - Anabolic Steroids Explained (http://www.musclepacked.com/profiles.htm)