Sometime in the early 1980s, when baseball was in one of its contentious labor negotiations which was in danger of shutting down the game, a delegation of fans attempted to intercede in the negotiations, reminding fans and owners of their obligations to the game itself.   Both owners and players flatly refused to meet with the fan representatives or to give them a platform to express their views.   The fan representatives ambushed a delegation of players in a hotel lobby. "It’s a business," Reggie Jackson told them.  "Go away."

                Well, OK, is baseball a sport, or a business?

                Baseball is fundamentally a sport, and anyone who works in the business of the sport forgets that at his own peril.   Of course, anything is a business to the people who work at it for a living.  Is a can of beans essentially a food, or is it essentially a business?

                To the people who make a living by growing food, it’s a business.   To the people who buy the food from the farmer and put it in the can, it’s a business.   To the store, it’s a business. 

                That doesn’t change the fact that it is fundamentally a food.    If it had no value as food, all of the businesses would go out of business.   If it doesn’t taste good, if it doesn’t provide nutritional value, if it isn’t safe to eat. . . .poooft, no business.

                The same with baseball; of course it is a business to those who work in the business.   That doesn’t change the fact that it is fundamentally a sport.   If it isn’t entertaining, if it isn’t fun to watch, if it isn’t something that people choose voluntarily to follow and to become a part of. . .poooft, no business.

                There is a legitimate third-party interest there (L3PI), and, in fact, it is only the third party who has a clear and unbiased view of the true nature of the product.   The owners and the players share a distorted and unrealistic view of the game.   It is a business to both of them.  

                Baseball fans used to get really bothered about player salaries, back in the time when salaries quadrupled in a ten-year period and strikes and lockouts were periodically seizing up the engine of the game.   A lot of people don’t know much about economics, and the way these people saw it was, every extra dollar that went to the players was a dollar out of their pockets.   We’ll call that Argument A; the economics of the sport are a two-sided contest between players and fans.   For the players to get more money, the fans have to spend more money.

                The Player’s Union responds to Argument A with this argument:  If salaries are kept unnaturally low, do you really think the owners are going to lower ticket prices?   Of course they are not.   The owners are going to set tickets prices in such a way that it maximizes their income.   That point is the same whether the players are paid $20 a week or $20 million a week.   It’s irrelevant.   All that is at issue in the negotiation is whether the owners keep the money, or whether they share with the players.

                That’s Argument B:  it’s a two-sided contest between players and owners.    Argument B is as naïve and ignorant as Argument A.   Of course ticket prices go up when costs rise.   If the cost of fertilizer goes up, the cost of a can of beans goes up.  

                There are three sides in any negotiation, one of which is always (or almost always) the weak side.   The weak leg of the three-sided negotiation is the side which isn’t in the business, the side which devotes 1 or 2% of their income to this purchase (or less).   The third party.

                Unions, historically, like to portray union negotiations as two-sided negotiations between themselves and capitalist investors.    This is not strictly accurate; there are other interested parties.   Union bashers like to portray the unions as driving up prices to the public.   This is not strictly accurate, either.

                The Republican party line after the Wisconsin vote is that when government workers unionize and negotiate with the state, the government sits on both sides of the table.    It’s not a real negotiation, they argue; the state is not a "business", and therefore not protecting its own money.   Therefore government workers shouldn’t be allowed to unionize.

                Well, if governments are capable of mistreating workers, taking advantage of them, then workers have a right to form unions to protect their own interests, don’t they?   I don’t think that’s the real issue.   The real issue is ignoring the L3PI, the Legitimate Third-Party Interests.    It is not unreasonable to support both the right to unionize and the L3PI.    If the people who are benefitting from tax revenues are paid significantly more money in salaries and benefits than the people who are paying taxes, I think there’s a legitimate concern.

                My good friend Allen Barra has written an excellent article about the Roger Clemens trial for the Atlantic; (Roger Clemens's Long, Expensive, and Probably Useless Trial, By Allen Barra; I would create a link here if I could figure out how to do that.)    Here’s a quote from the article:

The first response of baseball commissioner Bud Selig to complaints from Congress was one of almost ridiculous arrogance. After stalling for years on requests for an investigation into drug use in the major leagues, in 2005 Selig sent the Congressional Committee a letter telling them they had no jurisdiction in the matter. The hearings, Selig informed them, were "an absolutely excessive and unprecedented misuse of Congressional power."

                That’s the two-party perception of a three-party problem, once again.   Selig was telling congress—as Reggie told the fans in the 1980s—"This is between me and him.   You stay out of it.  It’s none of your business."  In the steroid era, the players were ignoring the interests of the fans, and the owners were going along with that because that was the path of least resistance for them—just as the people who negotiated too-generous benefits for government workers did so because that was the path of least resistance for them.

 Allen and I have been friends since 1982, and it is a genuinely outstanding article, and I endorse about 90% of what Allen says in the article.   But I do disagree with him about a couple of points.   I disagree with Allen—and, to judge by my e-mails, I disagree with about 90% of you—on this point:

The question should have been why a Congressional committee was still needed when baseball, by then, had instituted a perfectly workable system for drug testing. Why did Congress or anyone still care about alleged drug use by Roger Clemens or any other player that had happened years before?

                The 2008 hearings were called by California Democrat Henry Waxman, who announced the day after the hearings had ended that he regretted calling them, saying that they had unnecessarily embarrassed Roger Clemens.

                Look, I don’t like Henry Waxman, I don’t support Henry Waxman, and I don’t agree with Henry Waxman about much of anything.   I wouldn’t vote for the ugly son of a bitch for dog catcher, but when he’s right, he’s right.    My view is that baseball (labor and ownership) was ignoring the Legitimate Third-Party Interests of the fans and the public, and it was an entirely appropriate use of the power of congress to step in and tell them to fix the problem.   Baseball did institute a fix in 2004/2005, but in 2007/2008 it was very unclear whether or not the problem was behind us.   An anti-steroids policy should have been in place in baseball by 1970.    There was no policy in 1970, in 1975, in 1980, in 1985, in 1990, in 1995, in 2000.    Finally congress stepped in.   Good on them for doing that.    I salute them.    For baseball to say "We fixed the problem in 2005.  Why are you still hassling us in 2008?"  is asking for a precious sensitivity to the feelings of people who, for 35 years, were massively insensitive to the interests of the public.

                And yes, it didn’t go well, and yes, it did unnecessarily embarrass Clemens, but then, Clemens volunteered to testify.    Clemens’ lawyer, Rusty Hardin, denounced the Mitchell Report, which had linked Clemens to Performance Enhancing Drugs, as "a horrible, disgraceful report."  That was a little over the top, wasn’t it?  Wouldn’t it have been enough to say that his client did not, in fact use Performance Enhancing Drugs?

                The other point on which I disagree with Allen is this.   Allen characterizes the prosecution of Clemens as "an effort to nail at least one major league baseball star for using performance-enhancing drugs."

                Well. …(a) I don’t doubt that the Federal prosecutors went after Clemens because they legitimately thought that he had lied to congress, and (b) I don’t doubt that there is a legitimate public interest—a legitimate third-party interest—in punishing people who lie to congress.   Barra says that the government has spent $120 million on the prosecution of Clemens, and this does seem perhaps to be more money than was necessary or justified.

But what people most seem to have trouble understanding is the pervasive weakness of the argument that Clemens lied.    The Waxman committee issued a report of their hearing which basically stated that Clemens had lied.    In my view, they had no valid reason to come to that conclusion.

The essential goal of the Waxman hearings—directly stated by Chairman Waxman in his opening statement—was to buttress the credibility of the Mitchell report:

Mr. Waxman: This committee has a special connection to the Mitchell Report. In 2005, when Representative Tom Davis was our chairman, the two of us urged Commissioner Selig to investigate baseball's history with performance-enhancing substances. The Commissioner agreed with our suggestion and appointed Senator George Mitchell to lead that effort.

Senator Mitchell's report is impressive and credible. He concluded that the use of performance-enhancing substances was pervasive for more than a decade, and that everyone in baseball -- the players, the union, the owners, and the Commissioner -- were responsible for the scandal.

Senator Mitchell released his report on December 13th. That same day this committee announced a hearing with Senator Mitchell, Commissioner Selig, baseball player's union leader Don Fehr. We intended for that hearing to close the chapter on looking at baseball's past.

On the same day the Mitchell Report was released, however, Roger Clemens, through his attorney, Rusty Hardin, publicly challenged the accuracy of the section of the report that presented evidence of his use of steroids and human growth hormone. Mr. Hardin later told the committee that the Mitchell Report is a horrible, disgraceful report.

Given the committee's past work and our interest in an accurate record of baseball's steroid era, we have investigated the evidence in Senator Mitchell's report that relates to Mr. McNamee and the players he identified. Tom Davis and I made this decision reluctantly; we have no interest in making baseball a central part of our committee's agenda. But if the Mitchell Report is to be the last word on baseball's past, we believe we have a responsibility to investigate a serious claim of inaccuracy.

                The Waxman committee started with the premise that the Mitchell report was fair and accurate.   They took the report under their wing, which was fine by me; I have no real problem with Senator Mitchell’s work.  

                But they bootstrapped their faith in Mitchell’s report into a faith in Brian McNamee’s testimony.  This is more problematic.    When Roger Clemens said that McNamee was lying, they rushed to the defense of McNamee, interrogating Clemens in a hostile manner, and demanding that he explain every discrepancy between his own statements and anything they could find that contradicted his statements.   Were you at that party or not, Mr. Clemens?    Did you have an abscess on your butt or not, Mr. Clemens?   Did you have this 20-second conversation with Andy Pettitte or not, Mr. Clemens?   Did your representatives tell you about this communication from Senator Mitchell or not, Mr. Clemens?

                They jumped to the conclusion that Clemens was lying, and then tried to force him to prove that he was not lying.   When he was unable to prove that he was not lying—anyone would be under the same conditions—they issued a report concluding that he had lied to them:

During his deposition, he made statements we know are untrue, and he made them with the same earnestness that many of the committee members observed in person when he visited our offices. In other areas, his statements are contradicted by other credible witnesses or simply implausible.

At the beginning of his sworn deposition, Mr. Clemens repeatedly told the committee that he never talked with Brian McNamee about human growth hormone. We know from his later testimony that these statements were false. Mr. Clemens told the committee that Mr. McNamee injected him with a dangerous pain medication, Lidocaine, in a public area of a team training room. Dr. Ron Taylor, the team doctor, Melvin Craig, the team trainer, both told the committee that this account does not make any sense.

During his interview on 60 Minutes, Mr. Clemens asserted that "Mr. McNamee didn't tell me a word about the Mitchell Report," and he lambasted Mr. McNamee for sending him an e-mail about fishing equipment a week before the release of the report.

Well, these statements were not accurate. Eight days before the release of the Mitchell Report, Mr. McNamee called Mr. Clemens' representatives and told them about the report. Mr. McNamee also allowed Mr. Clemens' investigators to interview him at length about the evidence in the Mitchell Report before the release of the report. We know this happened because those investigators secretly taped the interview.

There is also a direct conflict between Mr. Clemens' testimony and Mr. Pettitte's. During his deposition, Mr. Pettitte told the committee that in 1999 or 2000, Mr. Clemens, quote, "told me he had taken HGH," end quote. During his deposition, Mr. Pettitte was asked whether he had any doubt about that recollection and he said, quote, "I mean no. He told me that," end quote. Mr. Clemens said this conversation never took place.

These are not serious allegations; this is blather, combined with occasional claims that the blather constitutes serious allegations.    He never talked with Brian McNamee about HGH, but then he did admit there was this conversation. …so what?     When you ask him, "Did you ever talk with McNamee about using HGH?" he presumes that that means did you ever discuss this as a possibility—not "did the topic of HGH use ever come up in some general context?"     Whether he was injected with Lidocaine in 1998 and B-12 in 1999 or B-12 in 1998 and Lidocaine in 1999, whether the Lidocaine was pink or red or the B-12 was green and smelled like frog urine, whether the Lidocaine shot was in the trainer’s room and the B-12 shot was in Tampa Bay. . ..people do not remember this stuff nine years later.   The failure to remember this stuff nine years later is not perjury.

Mr. Mica: Okay. What color is this -- well, then you claim you gave him a steroid or a compound.  What was it that you claim that you gave him the injections of?

Mr. McNamee: It was -- throughout the course of the years it was Winstrol, also known as stanozolol; there was testosterones, steroids, and HGH, human growth hormone.

Mr. Mica: What colors are they, the testosterone, the various liquids?

Mr. McNamee: The Winstrol, the stanozolol, from '98, was like a powdery white or a milky white liquid, water-based somewhat.  The testosterones were more of an oily, clear to a little bit darker, almost like a honey color. And the HGH, once it was mixed with the diluted water, it would become clear.

Mr. Mica: So basically clear to honey tone?

Mr. McNamee: And milky white.

Mr. Mica: Mr. Clemens, you claim that -- you did admit that you were injected with vitamin B-12, and also you admitted to Lidocaine.  Okay, what color is the vitamin B-12 shot? You told me you had quite a few shots.

Mr. Clemens: Brian McNamee gave me shots on four to six occasions of B-12. It is red or pink in color.  Lidocaine, I do not know the color of Lidocaine. He gave me one shot of Lidocaine in my lower back, and that happened in Toronto. I have no idea --

Mr. Mica: Now, he could have gauze with your blood sample on it; is that correct?

Mr. Clemens: Absolutely.

Mr. Mica: Okay. But you have said that the only two injected substances you had -- was it Mr. McNamee that injected those two substances?

Mr. Clemens: That's correct.

Mr. Mica: Okay. And you also said that you knew very distinctively the color of the B-12 because you had had that injection, and that is a fairly distinctive color.

Mr. Clemens. That is correct. It was red or pinkish in color and --

Mr. Mica. What color was what he injected you when you thought it was B-12?

Mr. Clemens. I am sorry?

Mr. Mica: What color was it when he injected you when you thought it was B-12?

Mr. Clemens: It was red and pink. B-12 is red and pink that he gave me. I don't remember the color of the Lidocaine. It was one shot. He told me it would give me some freeness in my back.

Mr. Mica: So we may never know, because he may in fact -- and you say he would have gauze with possibly your blood DNA sample on it. That would be correct?

Mr. Clemens: He sure could have.

Mr. Mica: Okay. But we don't know what he injected. But he just testified that the substance was a different color than, in fact, you recognized. And, in fact, you told me on a prior occasion the color of the substance you were injected with; is that correct?

Mr. Clemens: I am sorry, I didn't --

Mr. Mica: I said you told me the color of the substance you were injected with. That is why I asked him that --

Mr. Clemens: That's correct.

Mr. Mica: -- question first. You don't think he is telling the truth then?

Mr. Clemens: Brian McNamee has never given me growth hormone or steroids.

Skepticism is reserving judgment; cynicism is rushing toward a negative judgment.  The appeal of cynicism is that it protects us from gullibility.    We don’t like to be played for suckers.   Stubborn disbelief is armor for the naked heart.  

The line between skepticism and cynicism is the line between reasonable and unreasonable doubt—a difficult line to see on the clearest day.    You can be skeptical about Roger Clemens’ claims if you want to—but to convict him of perjury requires not merely that we apply equal skepticism to the claims of McNamee and Clemens, but that we apply much more skepticism to the accuser than to the defendant.    If we apply merely equal skepticism to both sides, it seems clear to me that Clemens cannot be found guilty.

If Roger Clemens is acquitted of perjury—which I think he probably will be—and if he continues to assert that he never used HGH or steroids—which I think he will--then the BBWAA will have no option other than to elect him to the Hall of Fame. 

Well. . ..we’ll leave that to the jury and the BBWAA.  I am not arguing that perjury is a trivial matter; I am not arguing that the hearings were not justified.   You can be as skeptical as you want to be; there is no down payment required for that.  But if you’re going to argue that perjury is a serious criminal offense, then you have to measure up to the standards of proof that apply to a serious criminal offense.  You have to start from zero and push forward all the way to proof.    It seems to me that the Waxman committee totally failed to process this.  A cop may be convinced that a suspect robbed a liquor store—but he can’t charge him with robbing a liquor store just because he thinks the man is guilty.   He has to find the proof.  Congress may think that Roger Clemens was lying to them, but if they’re going to make that a criminal offense, they’re going to have to find the proof.