Would Hayek vote for Mark McGwire?

by Russ Roberts on January 9, 2007

in Law

In this ESPN column, Jayson Stark explains why he voted for Mark McGwire for baseball’s Hall of Fame:

But in reality, we hardly know anything about what anyone in the sport may or may not have done during those anarchic 1990s.

So just as baseball allowed Gaylord Perry to go out and cheat
his way to 300 wins — and eventually admire his plaque in the Hall of
Fame — it allowed McGwire and a host of other players to compile their
stats, break their records, earn their money and listen to all those
roaring crowds.

And now here it is, Hall of Fame election time — and cleaning up this glop is supposed to be our
problem? Sorry, the only way to be consistent about this generation is
to apply the Gaylord Perry standard — and evaluate what the sport
allowed to go down on the field. Either the ’90s happened or they
didn’t. And we all saw them happen.

We saw hitters on steroids face pitchers on steroids, as
hundreds of players all around them used the same stuff, looking for
the same edge. But we’ve never heard most of their names. So I feel
more comfortable voting for players like McGwire than I do trying to
pick and choose who did what, and when, and why.

A lot of the steroids controversy comes down to one very ugly word: cheater. Cheaters don’t belong in the Hall of Fame. But when you chew on the word for a while, you realize that cheaters come in lots of different flavors. Gaylord Perry is one of those flavors. Here are a few more:

The batter glances down at the catcher when he flashes the sign to the pitcher so the batter can know which pitch is coming.

The runner on second steals the sign from the catcher and signals to the batter wht the next pitch is going to be.

The home team has a person with a telescope hidden beneath the stands. That person steals the sign and communicates with the dugout who relays the sign to the batter.

Are any of those cheating?

The first example, where the batter steals the sign directly, is considered, I am told, against the code of baseball. What does that mean? It’s simply not done. There’s no rule against it, no legislation. But there’s a law against it, meaning that everyone in baseball understands that it’s not to be done. If you do it, the pitcher will throw at your head.

As my co-host Don points out in this podcast, Hayek makes a profound distinction between law and legislation. Law is an emergent phenomenon. It’s not decided or decreed. It emerges from our culture and the behavior and the interactions of individuals with each other. Legislation is what is decreed. Sometime legislation is consistent with law. Sometimes it is not. The legislation says the speed limit is 55 miles per hour. The law says you get a 5-7 mile per hour cushion on top of that.

A batter who steals signs from a catcher breaks the law of baseball but there are no rules against it. It’s considered by the players to be a form of cheating. No commissioner of baseball ever sent around a memo about it but it’s against the law.

A runner on second who steals signs and relays them to the batter does something that is "part of the game." When there is a runner on second, the catcher and pitcher usually go to an alternate set of signs to prevent their theft. Stealing signs from second is allowed by the law and legislation of baseball. Stealing signs from second isn’t cheating.

But stealing signs from center field with a telescope is certainly against the law of baseball. I don’t know if there’s a formal rule against it. But everyone agrees it’s against the law and a form of cheating.  The most famous home run in baseball history, Bobby Thomson’s "Shot Heard Round the World" (go to the pull down menu in the middle of the page) that clinched the 1951 pennant for the New York Giants, has been tarnished by the revelation that that the Giants that season had a man in center field with a telescope who relayed the signs to the dugout via a bell and buzzer system.

So are steroids cheating? They are now. Everyone knows it. There is random testing across baseball and if you are found to be using steroids you get suspended from the game. Do it again and the suspension lengthens.

But were steroids cheating in the 1990s when McGwire and Sosa and Bonds and Palmeiro and others were hitting so many home runs that went so far? Palmeiro tested positive. Bonds says he accidentally used steroids. Sosa and McGwire have artfully avoided the question and virtually all listeners have inferred from their artful answers that they used steroids. If true, are they cheaters?

Sort of. There were rules against it in baseball, I think, but those rules weren’t really enforced in any serious way. As Stark points out in his column, perhaps hundreds of players were using steroids. He talks about "what the sport allowed to go down on the field"—meaning it was tolerated in a way that suggests it wasn’t against the law of baseball, just the legislation in the sense of the formal rules.

Then again, I don’t think anyone who used steroids was particularly open about it or proud of it. It was borderline cheating. Sort of cheating. It was understood that both pitchers and batters were using the pharmacy. But it wasn’t totally OK.

We make our own judgments. We all understand that some people hit more home runs than they might have otherwise. Most fans have deflated the nominal home run totals of the 1990s, converting them to real numbers. But if some or most pitchers of that era were using "artificial" enhancements (as opposed to nutritional supplements and weight-lifting), then maybe even that deflation is not in order. 

If I were voting, I’d vote for McGwire. I think Hayek would too.

Be Sociable, Share!



Add a Comment    Share Share    Print    Email


Nate January 9, 2007 at 1:52 pm

Bingo. And Go Cardinals!

John Jenkins January 9, 2007 at 2:10 pm

Until the last CBA, there were no rules against steroid use in MLB.

In 1990, steroids were added to Schedule III by the Anabolic Steroid Control Act.

Steroids were illegal, but not cheating insofar as the rules of baseball are concerned. Baseball players routinely used amphetamines, which were illegal long before steroids, but no comment is made as to how that is cheating.

Half Sigma January 9, 2007 at 2:48 pm

Stealing the signs is a cheating that has long been a part of the game going back a hundred years.

Steroid cheating is new and of a different kind because it's about physically altering the player's body.

John Jenkins January 9, 2007 at 3:20 pm

By that standard, I expect an immediate outcry against weight training, protein shakes and all forms of corrective surgery.

tw January 9, 2007 at 3:51 pm

First of all, "The Book" (baseball's mythical reference) says it's okay for players and coaches on the field to try to steal signs, but it's not okay to do things like use telescopes to steal signs, or use lights in the outfield to communicate stolen signs (the White Sox were accused of this a while back).

As for steroids, "The Book" says it's okay to use any legal substance to try to give you an edge. That's why the likes of Mickey Mantle and Whitey Ford took so many "greenies" back in the 1960s (sic "Ball Four" by Jim Bouton) and their teammates didn't mind. Did it affect their on-the-field performance? Sure, because they were able to play on days when they otherwise would have had to sit out and rest. A few years later, it became illegal to take amphetimines without prescription, yet both players are still in the Hall of Fame.

As for McGwire, and I've thought this from the start, his problem is not that he used steroids, it's that he won't admit that he used steroids. He's okay by "The Book" but his defensiveness, his denials, and his outright silence have turned the public and lots of players against him.

If he'd come out and told everybody what he'd done….that he did it because it was legal and it helped his game….that he learned it's dangerous to personal health and is glad that it's now illegal….and then spoke out against it to kids….well, I think he'd have been elected today. The same way Pete Rose would be in the HOF today had he just told the truth way back when his gambling scandal broke.

Just look at how well Jason Giambi is thought of today because people believe he actually admitted to steroid use, when, if you go back to what he said, he really didn't. McGwire would have been seen as the leader of the solution rather than the posterboy of the problem!

drtaxsacto January 9, 2007 at 4:09 pm

I would vote for him too! BTW – thanks for the excellent podcast about Law, Legislation and Liberty. Econtalk continues to be the best economics podcast on the net.

David Z January 9, 2007 at 4:25 pm

An interesting analysis from the Law v. Legislation standpoint. It's a compelling argument, and I'm kind of on the fence – although I have to admit that I certainly lean the other way.

A little bit of insight can be gleaned from the comment regarding the Schedule III controlled substance act. Baseball is not above the law (except the whole anti-trust thing). Baseball doesn't need to say that "It's against the rules to sell rock cocaine to the Third Base coach," because such an action is already against the law of the land, which supercedes the paltry rules of a child's game.

Similarly, baseball doesn't need to say "it's against the rules to use steroids, kill people, rob the greens crew, or piss on home plate." Baseball can proscribe whatever additional penalties it likes – but I think we have to examine these players fundamentally as law-breakers, and cheaters – even though some of us (myself included) disagree with the Law.

Cheating isn't legitimized just because everyone else is doing it. That's called an appeal to popularity.

If we don't like the law, then fine – let's work on changing it or abolishing it. But MLB is not the vehicle by which we can accomplish that feat.

Michael Sullivan January 9, 2007 at 4:40 pm

It seems reasonable that stealing signs would use the same ethic as card playing. If I'm playing poker or bridge, or gin, it's my responsibility to protect my cards from the sight of other players. It is considered standard courtesy to remind a player that they are flashing cards. But in general, if people see my cards they are free to use that information against me. However if someone not at the table (someone I do not know I need to protect against) were to relay their information about my hand to one of my opponents, that's cheating.

On steroids, I fully agree with Jason Stark. Anybody who hasn't been *proven* to have used steroids must be considered the same as everybody else. Innuendo means little, and many, many players who never hit 500 home runs have almost certainlly used steroids without every raising any questions. How do you decide who did it and who didn't in the absence of good hard evidence (like the random testing imposed now)? You can't. It's all about who we like or don't like, or who said some random suspicious thing, or who Canseco or somebody else pointed a finger at. Do I believe most of the suspects use steroids? Absolutely. But I believe a lot of players with fantastic credentials that nobody has ever raised a whisker of comment about have also done so, including pitchers.

You have to do what sports historians always have to do, judge people by the standards of their own time. 50 home runs in 1998 doesn't mean what it did in 1965, but it's still pretty impressive, and 70 even more so. Steroids make you bigger, faster and stronger, but they aren't some kind of magic potion that turns an average joe into a hall of fame ballplayer.


Russ Roberts January 9, 2007 at 4:40 pm


I don't think there's much difference between Giambi's "admission" and McGwire's "non-admission." But then again, I used to live in St. Lou and my team is the Red Sox. So maybe my interpretation of the data is biased.

I do agree that people pay a high price for deception. See Palmeiro as Exhibit A. I think McGwire's problem is not just that he dissembled but that he was baseball's poster boy and projected such a nice image with the Marises and so on.

Bruce G Charlton January 9, 2007 at 4:46 pm

I agree with tw that it is the evasiveness and – in some instances – downright lying that is repulsive about steroid use in baseball.

Another aspect about cheating is that cheating to get home runs (steroids, corked bats, peeking at signs) is considered worse than pitchers cheating to get outs (eg spitballs, pine resin – to take a topical example) because home runs are so much rarer and more important to the result than outs.

tw January 9, 2007 at 5:21 pm


I agree with you that there isn't really a difference in the substance of what Giambi and McGwire have both said.

What I was trying to say is that because of the style in which Giambi made his remarks, people actually have the perception that he admitted to something (i.e. steroid usage)….but if you go back and watch/listen/read what Giambi said, he didn't do any such thing. Thus, his remarks are indeed very similar to McGwire's.

Because of Giambi's public perception, however, he's been rehabilitated a bit….I believe he's since won the "Comeback Player of the Year Award" and at least mentioned by the media as someone who should get votes for AL MVP. He certainly doesn't get the fan abuse about steroid usage that Barry Bonds does (though I'm sure the Red Sox fans ride him pretty hard).

John Jenkins January 9, 2007 at 6:14 pm

Sorry tw, but baseball players don't consider the use of amphetamines through the 70's, 80's and 90's to be cheating, yet they are performance enhancing drugs (they are prohibited under the current CBA and tested for). If players who used amphetamines (which are illegal) for an advantage are permitted into the hall of fame and the voters voted for those players, then the voters have no rational way to differentiate the steroids.

If the voters were to take the position that anything illegal is a bar from the hall of fame, they can do that and be principled, but it is not principled to say steroids bad, amphetamines good. That is not an appeal to authority, but rather is pointing out a flaw in the argument. Of course, the BBWA don't really care about any of that and all it really takes to get into the HoF is a chummy relationship with the media, which McGwire did not enjoy, and that is the real reason he didn't get in, justifications aside.

Ray G January 9, 2007 at 8:30 pm

It was one of those things that everyone just tacitly condoned, and only when Canseco came out and made everything look so sleazy that things got, well, ugly.

Personally, I couldn't care less. Steroids do absolutely nothing for a man's ability to hit a baseball. The added distance perhaps, but that is not the critical factor. These guys were long ball hitters anyway, so we're talking about an edge, not something that they weren't otherwise incapable of doing.

Steroids in boxing or mixed martials arts fighting would be a better example of giving the athlete the kind of advantage that so many suppose the baseball players are gaining.

tw January 10, 2007 at 8:47 am

John Jenkins,

If you'll go back and read what I wrote, I actually agreed that "baseball players don't consider the use of amphetamines through the 70's, 80's and 90's to be cheating."

We agree on that point. I believe that "The Book" says it's okay to take anything that's not illegal, and that's how baseball players therefore behave.

And we agree on amphetimines that "yet they are performance enhancing drugs." With what I wrote, I certainly agree with you on that point.

And we agree that the BBWA cannot say "amphs good, steroids bad"….certainly agree with you, and I did mention that the likes of The Mick and Whitey Ford were elected to the HOF with full knowledge of the substances they used.

And we also agree partly on the reason Big Mac isn't in the HOF yet….I'll certainly agree that a huge subset of public perception is the relationship with the media as you describe it…..no problems there.

I just don't see any big differentiation that caused you to start your post: "Sorry tw." Now maybe if I'd brought up the 'need' to raise the minimum wage (salary) of MLB players in the next collective bargaining agreement…. :o )

undergroundman January 11, 2007 at 8:09 am

Steroids places an unfair burden on the rest of the players. It seems you are either denying that steroids cause harm or that players (agents, or firms, as well) should pursue healthy and ethical practices.

We can easily draw analogies to firms, in that there's any number of unfair, illegal things they could to lower their bottom-line (pollution, lawsuits, Enron-esque malfeasance). Does that mean that what they're doing is efficient, or good? No. Should we "maximize performance" or "profits" at any price?

Of course not.

I think your comparison to "stealing" the signs is somewhat flawed. That doesn't force people to destroy their health in order to compete. Instead the catcher/pitcher just has to get more canny – besides, glancing down for that sign imposes a risk on you. There's plenty of legitimate risk there. Fair game.

Risking your health and thus forcing others to risk their health is a different game.

Previous post:

Next post: