Sports and the Law: Steroids, and Spygate, and Churchgate, Oh My!

Sports and the Law 3 Above the Law blog.jpgFor most of the past century, Congress has failed to adequately regulate professional sports. For example, when Major League Baseball (“MLB”) actively monopolized, Congress did nothing (1914-1998). When the National Football League (“NFL”) sought to merge with its main competitor (the American Football League), Congress granted the NFL a special antitrust exemption to do so (1966). And, when sports teams began to use their market power to pressure cities to build new stadiums, Congress even voted down legislation that would have protected the interests of the American taxpayer (1996 & 1999).
This week, however, Congress has shifted from a policy of under-regulating professional sports to a policy of potentially over-regulating them. In the coming week, Capitol Hill will be abuzz with three sports-related investigations: Spygate, Churchgate, and, of course, the MLB Steroids Investigation.
MLB Steroids Investigation:
The main event on Capitol Hill this week involves the ongoing investigation into MLB’s use of performance-enhancing drugs — an issue that Henry Waxman (D-California) and Tom Davis (R-Virginia) first began investigating back in March 2005. This morning, Roger Clemens — the most dominant starting pitcher of his era — will defend himself against accusations made by his former trainer Brian McNamee that he injected Clemens with illegal performance-enhancing drugs during the 1998, 2000 and 2001 seasons.
Earlier this month, New York Yankees pitcher Andy Pettitte and former Yankees second baseman/outfielder Chuck Knoblauch were deposed by the House Committee on Government Reform about this same topic. Both Pettitte and Knoblauch’s statements — neither of which have been made public — might be used by the House Committee in today’s questioning of both Clemens and McNamee.
Discussion continues, after the jump.

In addition, there have been some other recent and unusual developments. First, there emerged the recent news that McNamee produced to the Department of Justice several vials with traces of steroids and human growth hormone from the year 2000, as well as bloodstained syringes and gauze pads, purportedly containing evidence against Roger Clemens. Then — if McNamee’s Linda Tripp-like evidence production was not peculiar enough — reports began to circulate that Clemens spent part of last week signing autographs for certain House Committee members. (Remember, these are the people that are supposed to be investigating him.) Finally, on Monday, retired MLB player John Rocker — best known for his 2000 suspension from MLB for making racially insensitive and homophobic remarks — came forward with a statement that doctors for both MLB and the players association had instructed him on how to use steroids, and that MLB Commissioner Bud Selig knew for sure that players were juicing. If there is any truth to Rocker’s recent allegations, the ongoing questioning of Clemens barely scratches the surface of what might follow from Congress.
For those that are less enthused by this morning’s steroid investigation, Senator Arlen Specter (R-Pennsylvania) will lead a very different type of sports investigation this afternoon — one involving the NFL, its commissioner Roger Goodell, and allegations of cheating by the New England Patriots football team.
Spygate, as these allegations have been called, began as nothing more than a matter of internal concern for the NFL. During a September 9, 2007 game between the Patriots and the New York Jets, Patriots personnel purportedly violated NFL rules by filming Jets signal calling. Thereafter, the Jets front office filed a complaint with the league. Upon conducting a formal hearing, Commissioner Goodell fined both the Patriots and their coach Bill Belichick for their misconduct, as well as took away the Patriots’ first-round draft pick in 2008. Goodell also claimed to have disposed of the incriminating evidence.
Senator Specter, however, was not satisfied with how Commissioner Goodell internally resolved this matter, having told the New York Times that “the American people are entitled to be sure about the integrity of the game.” At first, Specter announced plans to call Goodell before the Senate Judiciary Committee to address destruction of the purportedly incriminating Patriots tapes, as well as to discuss how destroying these tapes might affect the NFL’s limited exemption from antitrust law under the Sports Broadcasting Act of 1961. Specter, however, has since backed away from his demands for a formal, public hearing — agreeing instead to meet with Goodell privately in his Pennsylvania office.
Finally, there is a third sports investigation being conducted this week by members of Congress into whether the NFL should be allowed to sue churches that purportedly violate the NFL’s copyright protection by hosting Super Bowl parties on televisions larger than 55 inches in size, in auditoriums larger than 2000 square feet.
Former NFL quarterback Heath Shuler (D-North Carolina), as well as Senator Specter (yes, the same Senator Specter from Spygate), have decided to propose bills to Congress that, if passed, would permit churches to display NFL games for free viewing, absent of any risk of copyright infringement. Thus, churches hosting Super Bowl parties might no longer have to worry that their conduct could potentially violate copyright law.

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After many years of unbridled deference to the will of professional sports owners, Congress this week has become uncharacteristically bullish in pursuing each of these three investigations, even though the importance of Spygate and Churchgate seem questionable at best.
Clearly, there needs to be some balance between the realm of internal self-regulation of sports and the realm of Congressional oversight. Congress for years had fallen far short of meeting the proper equilibrium point. This week, however, Congress may have entirely overshot it.
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Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here, and you can reach him by email by clicking here.

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