Legal News

Does Mark McGwire Deserve Further Punishment?

By Ashby Jones

Mark McGwire on Monday confirmed what many had suspected for a long time — he took banned, performance-enhancing drugs while playing baseball. Click here for the WSJ story; here for the NYT story; here for the story from the NYT; here for an interesting look, from the NYT’s Richard Sandomir, at McGwire’s choreographed media tour on Monday.

So what’s the legal angle here? Well, we’re not sure an obvious one exists. As explained by Thomas Boswell in Tuesday’s Washington Post, McGwire chose his words carefully during his 2005 congressional testimony, insisting only that he didn’t want to “talk about the past.” So perjury or lying-to-Congress charges are likely off the table. We’re not sure if anything McGwire ingested was either illegally administered or obtained, but the statute of limitations has likely run on that. We might see some half-baked filing by a lifelong Cardinals or Athletics fan, alleging fraud, but barring that, he’s likely out of the woods on any sort of serious civil claim.

Still, the issue persists on a non-legal level: Will Mark McGwire be adequately punished for pulling the wool over our eyes during that “magical” 1998 season? One argument goes like this: maybe he won’t be adequately punished, but sportswriters can at least keep him from obtaining a plaque at Cooperstown. Arm-in-arm with this, in all likelihood, is the asterisk argument: that the record books should be modified to reflect the fact that McGwire was cheating.

But some — and we’d imagine it’s a minority — think the guy’s suffered enough. Until recently, when he agreed to become the Cardinals’ hitting coach, he was essentially living the life of a hermit (albeit an extremely wealthy one) in an Orange County, Calif., enclave. Click here for a really good story from ESPN’s Wright Thompson from a few years back on what was then McGwire’s rather reclusive existence. The piece is enough to make you feel sorry for the guy.

Others think we’ve no business keeping him out of the Hall of Fame in any event, contrition or no.

Writing for the Huffington Post on Tuesday, Roger Abrams opines:

No one can doubt that Mark McGwire was a pretty good ballplayer — among the very best of his time. If we needed some contrition, I think we now have it. If he needs to suffer a bit more, we can get some of that too. But if McGwire is forever blackballed from Cooperstown and some other players without his numbers are admitted, the Hall and baseball history will lose out in the end.

We can explain to our children that Babe Ruth was a scoundrel and a drunk and that Ty Cobb was a bitter racist who jumped into the stands one day to pummel a handicapped heckler. We can also tell them how well these two men played the game on the field, and for that they were two of the first five players elected to the Hall. They were not anointed as angels. As far as I know, the Hall in Cooperstown is not the American Vatican. It is the repository of the Great American Game where we place our baseball heroes, blemishes and all. Sure, McGwire has blemishes, but, unlike many other players who used steroids, McGwire could flex those Popeye arms on a regular basis and lose a baseball into the bleachers. That is what makes him worthy, not his choices in life.

LBers, what do you think? Does McGwire need further punishment? If so, what’s the goal of such punishment? Is it deterrence — sending a message to reaffirm the old playground saw that “cheaters never prosper”? Is it retribution? Do we need to “get back” at McGwire for making us swoon (under false pretenses) in August and September of 1998? Talk to us.

Update: Law Blog Reader Comment of the Day: We love all of our reader comments. All of them. But ones that make us laugh out loud forever earn a special place in our heart. On that front, we commend reader “Joey,” who wrote the following Tuesday morning in regard to any possible civil liability for Big Mac:

1) Topps sues him for the cost of extra ink to put an asterisk next to the 1998 numbers on baseball cards;
2) Various fantasy baseball players sue for losing the office pool to the other guy who drew McGwire in the draft;
3) Taxpayers sue for expense of stupid congressional hearings in 2005 (John McCain named as co-defendant for holding the hearings);
4) Sammy Sosa sues for expense of steroids he used to keep pace with McGwire in 1998;
5) Jose Canseco, the only one out there speaking honestly about steroids, sues for defamation;

… I’ll continue to ponder this important issue. Let’s get a law prof somewhere to put this question on the Torts final.

Snappy. Funny. Pointed. Smart. A model comment. Well done, Joey, wherever you may reside.

Photo: AP

Full post as published by Law Blog - WSJ.com on January 12, 2010 (boomark / email).