Yesterday, Major League Baseball Commissioner Bud Selig asked Jason Giambi---who has pretty much publicly admitting to having used illegal steroids in the past---to cooperate with the investigation being conducted on baseball's behalf by former U.S. Senator and all-around Mr. Fix-It George Mitchell, or else. The official press release from MLB indicates that Giambi is more likely to be disciplined (or likely to be disciplined more severely) if he does not cooperate than if he does. This in turn raises two questions.
First, disciplined for what? From what I have read, Giambi has only admitted to steroid use before baseball officially prohibited it. To be sure, even at the time, steroids were a Schedule III controlled substance under the law, and since Giambi almost certainly wasn't getting his via legal channels, his obtaining of the steroids may well have been a criminal offense. But as far as baseball is concerned, so what? Surely the league does not have the power to punish every player for every violation of the law. Thus, Johnny Damon ---Giambi's teammate with the Oakland A's and now again with the Yankees---suggested yesterday that if Giambi is to be punished it is apparently not for having used steroids but for having admitted it. The center fielder asked: “I’m still trying to figure out what he’s in trouble for: freedom of speech?”
Second, what about legal ramifications? Giambi may well have committed a crime or crimes, especially if, say, he gave some steroids to a teammate, which might count as unlawful distribution, potentially subjecting him to as long as five years in prison. So while baseball perhaps shouldn't be punishing Giambi for past steroid use, federal prosecutors might try. As the Balco investigation shows, this is not an idle worry, and as I noted in a FindLaw column in January, baseball and its players seem not to have taken the threat of criminal action nearly seriously enough. A NY Times story today adverts to the possibility that Mitchell might grant Giambi "immunity from being punished," but presumably this only refers to punishment by baseball. Last time I checked, a special investigator on behalf of Major League Baseball---even one who has been a U.S. Attorney, a federal judge, Senate Majority Leader, and Special Envoy to Northern Ireland---has no power to grant immunity from criminal prosecution.