An Open Letter to the Members of the House Committee on Government Reform, and the Senate Committee on Commerce, Science and Transportation, on the Recent Hearings and Legislation relating to the use of Anabolic Steroids in Sports

by Philip Sweitzer, Esq.

Publication Date: July 12, 2005

Dear Senators Stevens, McCain, Burns, Lott, Hutchison, Snowe, Smith, Ensign, Allen, Sununu, DeMint, Vitter, Inouye, Rockefeller, Kerry, Dorgan, Boxer, Nelson, Cantwell, Lautenberg, Nelson and Pryor, and Congressmen Davis, Burton, McHugh, Mica, Gutknecht, Souder, LaTourette, Platts, Cannon, Duncan, Miller, Turner, Issa, Porter, Marchant, Westmoreland, McHenry, Dent, Waxman, Lantos, Owens, Towns, Kanjorski, Maloney, Cummings, Kucinich, Davis, Clay, Lynch, Van Hollen, Ruppersberger, Higgins, Sanders and Congresswomen Ros-Lehtinen, Brown-White, Fox, Watson, Sanchez and Norton:

Abraham Lincoln, in a December 18, 1840, speech to the Illinois House of Representatives said, "Prohibition will work great injury to the cause of temperance. It is a species of intemperance within itself, for it goes beyond the bounds of reason in that it attempts to control a man's appetite by legislation, and makes a crime of things that are not crimes. A Prohibition Law strikes a blow at the very principles this country was founded on."¹ Apparently, both collectively and individually - our national legislators – most of whom undoubtedly profess to revere Lincoln’s great patience, substance and statesmanship, you have learned precious little from his understanding of the futility of government-enforced temperance, a lesson this country should have certainly learned at the repeal of Prohibition in 1933.2

Nevertheless, given the revelations in Jose Canseco’s recent tell-all, Juiced: Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, the public morality play that followed before the House Committee on Government Reform this past March was probably inevitable. After all, the cameras were omnipresent and rolling. Mark McGwire and Jose Canseco were in the chamber. This was a high-stakes image game. Grandstanding was not only tolerable: it was actually de rigueur.

Thus, rather than engage the nation in a serious and balanced discussion of policy, and explore the Senate’s own role and culpability in creating the current problem - covert misuse of the drugs - by failing to heed the advice of both the Drug Enforcement Administration and the American Medical Association in 1990, the august House Committee on Government Reform convened a cathartic altar call instead, its topic suitably pious in title: Restoring Faith in America's Pastime: Evaluating Major League Baseball's Efforts to Eradicate Steroid Use.3 Invocation of the religious metaphor was also probably inevitable, but equally irresponsible. Professional baseball is a huge, commercial enterprise. It is hardly a religion. Misuse of the religious metaphor trivialized true religious devotion by appropriating its language and symbols for commercial and political ends. But misuse of religion for political ends is a common theme in both the 108^th and 109^th Congress. The Founders – I believe – would be embarrassed at the overt prostitution of "faith" for political gain.

The religious metaphor was telling in other ways, however: at the hearing, for instance, the Committee procured the humble repentance of professional athlete sinners who had "cheated" the One True Moral Sportsman’s Nation, Under God, to publicly deplore their transgressions and offer reproof. As part of its national day of Sports Atonement, it sacrificed the magnificence of Mark McGwire, the apotheosis of masculine glory in his exultation at hitting homerun number seventy on September 27, 1998, mute on the altar of possible self-incrimination. Steroids didn’t do that. The over-zealous House of Representatives did. Moreover, it was a conscious, self-serving choice. To this observer-citizen, it was a rather appalling and sickening display, not only because it was so self-serving; rather, the patent hypocrisy being visited upon the American public was also all too apparent.

Afterward, Senator McCain, the Chairman of the equally powerful Committee on Commerce, Science and Transportation issued a statement on April 8, 2005, commenting that a "dark shadow of public suspicion" had descended on major league baseball, arguing that use of anabolic steroids by baseball players was delegitimizing the sport entirely.4 With all due respect to Senator McCain, a national leader of presidential stature with the vision and rare political courage to say what he means and let the chips fall where they may, the defect in current steroid legislation portends to only worsen with implementation of his ill-conceived pronouncements and proposed testing regimens, however well-intentioned. Simply put, Honored Congressional Leaders, the "dark shadow" that has descended over major league baseball and sports in general is one of your own creation.5

As attendance numbers irrefutably demonstrate, not only did steroid use not "delegitimize" baseball; rather, Canseco’s book cogently argues that the drugs indirectly brought new life and energy to the sport, creating modern superheroes in figures like McGwire, Canseco and Sosa, bringing fans back as never before. In the Camden Yards model, a renaissance of modern baseball park construction followed. The argument, therefore, that steroids undercut baseball’s integrity or viability is specious at best. The fact is, steroids work, and they work particularly well for athletes administered in lower dosing regimens, where side effects are minimal to offset gains in strength, recovery, and endurance.6 Athletes, understanding for years that the adverse effects of the drugs have been overplayed by the media and the politicians, disregarded both the hype and the law. They took things into their own hands, because they understood that the truth about the drugs was not being told. Congress, more interested in carting off individual strength athletes to jail than in effectively monitoring the entire pharmaceutical industry with a rubber-stamp Food and Drug Administration cowering to corporate sales pressure, perpetuated the Big Lie: steroids will kill you, will give you liver cancer as they did Lyle Alzado. Steroids are bad for you. They are very bad for you.

As the popular truism goes, Honored Legislators, you are either part of the problem, or you are part of the solution. Prohibition – as Lincoln understood – will never work, because it pits the government against the individual citizen’s "appetite," i.e., against the individual’s own perception of what will make him or her happy, acting to curtail the pursuit of that happiness by substituting an even greater fallacy: we – your Senators, Congressmen and Congresswomen – know better than you do, Mr. Professional Athlete, what is good for you and good for sports. It is the most draconian form of authoritarianism - telling the athlete-professional what he or she can or cannot do with his or her own body – because it is premised on fear rather than truth, completely anecdotally and scientifically unsupported.

Therefore, first, it is time for some difficult truth telling. That is the purpose of this letter: to force confrontation of the evidence, much of which Congress seems to want to avoid in a perpetuation of "war on drugs" hype and hypocrisy. At the outset, it bears repeating that we, the citizenry, should be able to rely upon you – our elected officials - to pursue truth-telling. The March 17, 2005, hearings before the House Committee on Government Reform, however, showed Congress at its worst, the poison of loaded rhetoric dripping from every turn of phrase. "Illegal" was a favorite word throughout the proceeding. So were the terms "teenagers" and "idolize" and "faith." In the hands of a politician, those are all terms of art. They make simple issues of the complex, reduce the need for scientific justification for policy that should be inherently scientific, rather than being based on more generalized moral notions of "cheating."

Unsurprisingly, therefore, not only was truth-telling not the proceeding’s goal; rather, it wasn’t even a desired effect. This was pure advertising, pure "war on drugs" marketing hype, pure pandering to the political constituencies. With Social Security reform dead in the water, the president’s poll numbers plummeting, the war in Iraq going badly, and a growing "public suspicion" – to use Senator McCain’s term - of Congress’s penchant for injecting itself into intensely personal and private matters – i.e., the Terry Schiavo controversy – the moralizing over steroids in sports was ill-timed and ill-conceived, to say the very least. At worst, it represented a subversion of congressional authority, because it based legislative policy on known misrepresentations of scientific fact.

This, incidentally, is the same special-interest-driven Congress that authorized a windfall to pharmaceutical companies with enactment of cost-prohibitive Medicare legislation; a regressive tax cut favoring the wealthiest citizens in America; the same special-interest-driven Congress that authorized bloated government contract deals to Halliburton at the Pentagon and Pearson at TSA, while failing to ensure either that our fighting men and women in the field had sufficient funds and armor to protect themselves against enemy attack or our commercial airports are truly secure. Apparently, with not enough on your plate, drug prohibition in sports found its way to the top of your legislative priority list.

Second, as the medical experts who appeared before the committee repeatedly testified, use and abuse of steroids are not the same proposition.7 The media hype and moralizing Congress would have the American public believe that the two are functional equivalents, since steroids are "illegal." But for being on Schedule III, they would not be "illegal," moved on the black market. Criminalizing use of the drugs and removing them from medical oversight has established high dosing as a common regimen among "illicit users," as your own witnesses attested.

Third, the recent evidence shows – as a segment on the Home Box Office sports investigative news magazine Real Sports recently reported - that there is no scientific support or long-term study out there proving that use of anabolic steroids by healthy adult men is anything but good for you. The noted medical side effects – notably liver cancer, which occurred principally in subjects taking orally-ingested Dianabol,8 metabolized in the liver – are not widely reported by current users. In the piece that originally aired on HBO on June 21, 2005, Armen Keteyian, the investigative reporter on topic, admits on camera that many of his previously held views on "abuse" of anabolic steroids were categorically wrong, without any support whatsoever in the scientific literature.9 When confronted about his views on steroids by Keteyian, Dr. Gary Wadler, your star witness at the hearings, essentially admitted that his views on steroids are simply part of his belief system, one that ties steroid use to extraordinary, fatal cardiac events. When pressed for scientific support for this view, Wadler somewhat squirmingly, but eventually, confronted reality: well, golly gee, there is none. Nevertheless, the House Committee on Government Reform featured Dr. Wadler as its medical High Priest, featuring his "hypothetical" medical "evidence" to the national audience as Steroid Reformation Gospel.

Fourth, your preoccupation with criminalizing the use of anabolic steroids – to the exclusion of criminalizing the addictive use of other, much more inherently dangerous substances like cigarette tobacco - is patently hypocritical. As John Burge10 argued more than ten years ago, adding steroids to Schedule III – part of the post-Lyle Alzado hysteria – did more for assuring steroids’ underground and covert misuse than any other single act. As a result, steroids now trade on the black market. Conversely, nicotine, arguably the most addictive drug available to man short of opiates, is widely available for controlled, adult use in every corner store.11 Of course, adding tobacco to Schedule II or III would create a terrible economic backlash in the agricultural South, very important politically for the Republican majority.

In my article, I discuss the black marketeering of steroids, citing Yesalis: athletes who participate in black marketing steroids frequently will resort to trading in other controlled dangerous substances – more typical "street" drugs like cocaine, Ecstasy, etc. – to support their steroid habit. I document this pattern in the case of Lt. Scott David Woodall, a rural, Davidson County, North Carolina police officer, whose rap sheet looked more like that of a major urban drug player.12 It is not uncommon for athletes who become enmeshed in drug dealing to support their steroid habit, to also become enmeshed more generally in drug abuse.13

Recently, the deaths of Ken Caminiti from cocaine overdose and bodybuilder Paul DeMayo from nalbuphine hydrochloride overdose – an opioid analgesic dispensed under the trade name Nubain - demonstrate why steroids should not be associated with the typical "street" drugs. Again, as your own witnesses attested, the typical steroid user is not looking to impair his function by injecting anabolics. Rather, he is looking to enhance physical functioning, improve performance, improve strength, muscle mass and other physical and emotional attributes. Recently, Harrison Pope, MD has noted testosterone’s ameliorative effects at alleviating depression in middle-aged men. John Romano, in the HBO Real Sports segment, commented on the overwhelming sense of well-being he felt after administration of anabolic steroids. Association of anabolics with the darker mercantile qualities of street drugs, as Yesalis has noted, has been an unqualified disaster. Your own witnesses testified that steroid users do not fit the profile of "drug abusers," though there seems to be resignation on the part of the medical establishment that the drugs will remain on Schedule III.14

In scheduling the drugs, it was Congress who created that association. In 1990, the Senate of the United States, led by the hard-charging Senator Joseph Biden, elected to add anabolic steroids to Schedule III, against the advice of the American Medical Association. Even the Drug Enforcement Administration of the first Bush Administration – known for its otherwise draconian anti-narcotic enforcement efforts – did not support scheduling steroids. Ignoring that advice, and the advice of virtually all the experts who appeared, including Yesalis, was another conscious decision by our elected representatives to disregard scientific reality for symbolic effect, pushing use of the drugs underground, making criminals primarily of strength athletes at first.

As the benefits of strength training got more broadly disseminated throughout the popular culture, they became assimilated by athletic trainers. Steroids found their way more generally into the locker room. Now, runners and wrestlers and football players were looking over their shoulders. Largely following the emergence of George Butler’s 1977 now-classic documentary, Pumping Iron, through the cinematic exploits of the Governor of California, it seemed everyone was suddenly lifting weights. No one seriously questions that that was a healthy development. But no one seriously questions that the Governor of California, Arnold Schwarzenegger, was also a proponent of steroid use. Recently, he has admitted such use, but condemned administration of the drugs to adolescent athletes. One might ask, given the fact that he is a prominent fixture in the Republican political establishment, where Governor Schwarzenegger was on March 17, the person arguably most responsible for the dissemination of strength training and the reassertion of masculine physicality – with anabolics the precursor - into twentieth-century American popular culture.15

And, while it is true that professional athletes establish role models for youth, it is also undeniable that media influences and Schwarzenegger started the trend. Is steroid testing for movie stars on the horizon? It is also probably inevitable that technological improvement in sport will tend to move down the competitive chain into collegiate and high school athletic programs, were steroid use legalized and regulated at the professional level. But the same can be said of any other "adult only" activity. Teenage abuse of cigarettes was – in fact – relied upon for years by the tobacco companies to establish nicotine addiction in that age group. Part of their strategy, moreover, was lying about the plan. If steroid use in the professional ranks is physician administered and transparent, there will be no need to lie, and nothing to "eradicate."

Adolescents should not be experimenting with steroids. Testing regimens at the high school or collegiate level, therefore, make a certain amount of sense. At the professional level, however, the farce of prohibition and its patent ineffectiveness are already too apparent. This needs to change. It will not change by adding more layers of complexity to an already ridiculously complex scheme of prohibition.

Androgenic anabolic steroids should be removed from Schedule III, legal for controlled, physician-monitored use by adult men, including professional athletes, subject to strict league oversight and league-sanctioned physicians. Is there likely to be abuse? Of course. The stories of barbiturate and pain-killer abuse in the professional sports leagues are legion. Use by adolescents as well as sale of the drugs to adolescents, like the sale of cigarettes and alcohol, should be proscribed and severely punished. A recent story in the New York Times documents the abuse of prescription drugs as the current regime-of-substance-abuse-choice for most teenagers. Maybe we should criminalize representing the pharmaceutical companies in sales and distribution and criminally sanction dispensation of free drug samples to physicians, which are routinely abused. When pressed for a decision, we can always rely on our Legislators to conceive something new to criminalize, after all.

Alternatively, honesty and confrontation of reality could be our major new policy direction, with a frank admission that outright prohibition has been a complete failure. That would be a refreshing change of direction: basing policy on truth-telling. Only then will you, our Honored Legislators, and we as a society, begin to reverse the current misguided direction.

Respectfully yours,

Philip J. Sweitzer, Esq.

Endnotes

1. Quoted in Charles H. Whitebread, Freeing Ourselves from the Prohibition Idea in the Twenty-First Century, 33 Suffolk U. L. Rev. 235 (2000).
2. Mark Thornton, Alcohol Prohibition Was a Failure, (Policy Analysis of the CATO Institute (No. 157, July 7, 1991)) available at: http://www.cato.org/pubs/pas/pa-157.html (last visited July 4, 2005)(arguing the “valuable lessons” that the failure of alcohol prohibition has for the current, failed “war on drugs”).
3. Restoring Faith in America's Pastime: Evaluating Major League Baseball's Efforts to Eradicate Steroid Use, Hearing of the House Committee on Government Reform 109^th Cong. 8 (March 17, 2005). http://reform.house.gov/GovReform/Hearings/EventSingle.aspx?EventID=23320
4. Statement of Senator John McCain, Chairman, United States Senate Committee on Commerce, Science and Technology (April 8, 2005)(on file with the author).
5. See John Burge, Legalize and Regulate:  A Prescription for Reforming Anabolic Steroid Legislation, 15 Loy. L.A. Ent. L. J. 33 (1994)(in which Burge argues cogently that scheduling steroids and criminalizing use of the drugs has, in fact, been the primary factor in establishing their covert abuse. Because steroid users view anabolics in the same technological context as sports nutrition supplementation, and are typically otherwise extremely health-conscious; are productive citizens who lead “normal” lives; and because they are extremely shaken by encounters with law enforcement, they have become equally savvy about disguising – and lying about – their use of the drugs.)  In my more recent article, Drug Law Enforcement in Crisis:  Cops on Steroids, I take that argument one step further, asserting that the war on drugs has actually come full circle, in which steroid use by police officers has become a part of the military technology metaphor of contemporary policing in response to ratcheted-up levels of violence in the urban drug war, with the muscular physique understood as yet another potent distancing symbol in that war.  A recent ABCNews investigation confirms this view, by linking officer fears of injury to personal strength training and steroid regimes. Were it not the ultimate absurdity, it might otherwise be considered ironic that the enforcement of prohibition has – in the process – fostered illegal use and abuse among the enforcers of prohibition!
6. Jose Antonio, an Assistant Professor of Exercise Physiology at Nebraska, offered the following apology for implementing steroid cycles in player training regimens to the Professional Baseball Strength and Conditioning Coaches Society, in January, 1999:

   
   “I could safely put any athlete on a cycle of anabolic steroids, and he'd get improvement in muscle mass, lean body mass and loss of fat, and his performance would go up, with no side effects. I guarantee it. There's plenty of evidence that the supposed ill effects of using steroids are way overblown. The P.C. thing to say is steroids are not safe, but the science doesn't support it.  I believe that if you use a low dose, 600 milligrams or less per week, of testosterone enanthate or Deca-Durabolin (nandralone decanoate), you can get great effects in terms of performance with no side effects.”

   ESPN Magazine, available at: http://espn.go.com/magazine/vol3no07roids.html (last visited Sep. 10, 2004) (emphasis added).

7. See testimony of Kirk J. Brower, M.D., note 2, supra, at 145.
8. Methandrostenolone (dispensed under Swiss pharmaceutical giant CIBA’s trade name, Dianabol) was particularly controversial in the Seventies and Eighties, because orally administered, it was metabolized in the liver.  Generally, this increased chances that the user may have experienced liver-based side effects, such as tumor growth.  See Burge, note 4, supra.   Today, however, most athletes self-administering anabolics inject them intramuscularly instead, as the Canseco book bears out.
9. See HBO Real Sports, The Contrarian View, available at:  http://www.hbo.com/realsports/stories/062105_contrarianview.html (last visited July 4, 2005).  At the time of writing this article, a full transcript of the program does not appear to be available on the legal databases LEXIS or Westlaw. Video clip available at: http://www.elitefitness.com/articledata/hbosteroids/ (last visited Jul. 11, 2005)
10. See Burge, supra, note 3.
11. Count Egon Caesar Corti,  A History of Smoking, trans. Paul England (London: George C. Harrap & Co., Ltd., 1931), at 138-139 (detailing attempts to control smoking through history by various prohibitions including beheading, which did nothing to diminish the passion of nicotine devotees for their drug of choice, willing to risk even death in the process of obtaining it).
12. Philip J. Sweitzer, Drug Law Enforcement in Crisis:  Cops on Steroids, 2 DePaul J. of Sports L. & Contemp. Probs. 193 (2004). Available at: http://www.law.depaul.edu/current_students/student_orgs/lawslj/pdf/Fall 2004/Cops On Steroids.pdf
13. Charles E. Yesalis, Anabolic Steroids in Sport and Exercise (2^nd ed., 2000)
14. See Brower, supra, note 7.
15. Camille Paglia, Sex, Art and American Culture at 79, (1992) (in which Paglia comments that “modern bodybuilding is ritual, religion, sport, art, and science, awash in Western chemistry and mathematics. Defying nature, it surpasses it.”).  In his work, Muscular Christianity:  Manhood and Sports in Protestant America, 1880-1920 (2001), Clifford Putney traces the modern American fitness movement to Victorian England through the Muscular Christianity movement, which used the perfectibility of the male form as an analog and paradigm for social order and construction.  Putney specifically traces the development and emergence of the YMCA – hotbeds of bodybuilding activity from the 1950’s onward – to Victorian Christian fundamentalism, tying it to the likes of Charles Haddon Spurgeon and, later, D. L. Moody and G. Stanley Hall in the United States.  The relationship between Christian fundamentalism and competitive weightlifting in the United States remains surprisingly strong.