Thank you for saying “tack” instead of “tact.”

Um, yeah, what ChrisKoz said. I was totally thinking of the court’s holding in Bronston . . .which I remember. Um, from law school.

OK, in all seriousness, this demonstrates the value of law school, kids. I have no memory of Bronston, but by gum, the concept, either directly from that case or from the general mode and structure of reasoning that law school imprinted upon my little brain, I just sort of knew the principle of Bronston re: whose duty it is to get to the truth in such instances.

Law school: it’s not just for prventing poverty among liberal arts majors!

Thanks for the careful and considered response, Craig. I do think it is within a lawyer’s role to do more than just give legal advice—-if you keep a client from perjury but he ends up injuring his reputation and future earning power as a result, then your advice may have been incomplete, or even, on balance, wrong. [ Rule 2.1 Advisor: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” ] All in all,however, I agree that Sosa, like McGwire and Palmeiro, was in a tough fix, and his lawyer’s solution was as good as he was going to get. Raffy denied, MM evaded, Sammy parsed. And, in the end, it didn’t make a lot of difference: they’re all essentially in the same boat now.

John, I’m not at all sure what those comments to 2.1 have to do with the price of beans. My point is that a good lawyer has to pay attention to both the threat of perjury and the harm to his client’s career and reputation both. The Sosa statement, carefully crafted though it was, served to increase public suspicions. A player who unambiguously, unequivocally never used PEDs of any kind wouldn’t need a lawyer, a translator, or a professionally crafted statement. I don’t question Craig’s assessment that the lawyer did a good job given what he had to work with;  I’m saying that when the public can see the lawyer sweating, its a good bet that there’s a fire somewhere.

Well, that kind of depends on your definition of a “good lawyer” (oxymoron, Craig?) doesn’t it, Jack?  Your requirements of representing Mr. Sosa responsibly seem to be in competition with John’s.  I’m speaking as a layman here, but it seems that a lawyer must balance those requirements in deciding what is best for his or her client.  And Sosa’s lawyer (we presume) gave his client the advice that would keep him on the right side of the law, and allow him to play more seasons in the majors(his short-term earning power was not harmed).

And frankly, Jack, I think it’s flatly wrong to suggest that “a player who unambiguously, unequivocally never used PEDs of any kind wouldn’t need a lawyer, a translator, or a professionally crafted statement.”  If Congress called me to testify about something, regardless of whether I had done something wrong, I would consult a lawyer first.  How would I, a non-lawyer, know what kinds of questions they would ask, and what my options are for answering those questions.  What if they had asked Sammy specifically about other players he might have seen use?  What if they had asked him about his time in the Dominican Republic?  What are his obligations and options in answering those questions?  I don’t expect Sammy Sosa to inherently know that, and neither should you.  That’s why we have legal representatives in the first place.

Regarding the over 5% and how “deluded” they were, why wouldn’t a player keep using and try to beat the test with a masking agent?  No punishment for testing positive and it was suppose to be anonymous (i remember this was a huge deal back then which makes the results coming out now surprising) so it was basically a free run to see how you would try to beat the test if/when testing became regular.  This is assuming that the players that tested positive would be alerted to that fact, which I’m not sure was the case.  If they were aware if they tested positive then ignore this comment.

JL—a couple of thoughts:

1) I have no clue if they knew at the time if they tested positive.

2) I may be grafting my risk tolerance (low) onto the players—and of course, I have argued that they had a right to rely on confidentiality—but I’m a pessimist when it comes to this kind of thing. Information wants to be free, and personally I don’t think I would have risked it.  And before anyone says anything, this doesn’t change what I’ve said about the players being screwed by having their names released.  I don’t for a minute want the rest of the world to adopt my level of risk aversion, because it would become a boring place indeed.

3) Wouldn’t a better strategy be for everyone to try to go clean for that one spring so as to have the numbers be under 5%, no mandatory testing be adopted, and then everyone could resume to ‘roiding like it was 1999?  Hard to coordinate, I’m sure, but masking agents seem like a pretty uncertain thing in their own right.

Good points Craig, but despite some of Canseco’s claims that paint the roid era as a big syringe party in the bathrooms, I’m sure most players didn’t talk to each other about it but get where you are coming from.  I also assume that a great number of players did think your way and did stop since I’m pretty convinced that more than 5 - 10% of players were using in the early part of the decade.  And the uncertainty of masking agents is exactly why a test run would be hugely valuable, especially if it was successful (still quite valuable if it wasn’t though).

Jason: that’s certainly a defensible point of view.