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California Sen. Don Perata is an avid baseball fan who would like nothing more than to see Barry Bonds pee in a cup. Responding to recent allegations about rampant steroid abuse in Major League Baseball, the Oakland Democrat and former high school baseball coach has introduced legislation that would require professional athletes playing in California to be tested for performance-enhancing drugs or be barred from play. The legislation comes on the heels of former Oakland Athletics slugger Jose Canseco’s claim that an estimated 90 percent of ballplayers are on the “juice.” Canseco has admitted using steroids himself and so has 1996 National League MVP Ken Caminiti, who put the overall league number at about 50 percent. The claims have spurred a U.S. Senate inquiry and new efforts by the league to negotiate drug testing into its collective bargaining agreement with players. Perata’s bill may strike a chord with some fans, youth coaches and talk show hosts. It may also help stir the pot on an issue that’s giving baseball a black eye. But sports attorneys and constitutional scholars say that defending Perata’s bill in court would be like turning a triple play. For starters, Perata’s bill would attempt to regulate interstate commerce. And if the league can’t force players to accept drug testing in their collective bargaining agreement, any state measure could run afoul of federal labor law. Then there’s the question of the athletes’ privacy rights. In recent years, the California Supreme Court has said that the NCAA can require drug testing of college athletes and that municipal governments can screen job applicants for substance abuse. No court has ever applied those privacy rulings to drug testing of pro athletes. TESTING THE WATERS Under Perata’s SB 1738, every major sports association hosting an event in California would be required to annually have its drug testing policy reviewed by the State Athletic Commission or be barred from doing business in California. Athletes who test positive for drug use would also be suspended from play in the state. “No major professional athletic association may hold a professional sports event in this state without having obtained commission approval of its policy on athlete use of performance-enhancing substances,” the bill reads. In an extreme scenario, that could mean if the bill passes and Major League Baseball balks, California would essentially have to say goodbye to the the Dodgers, Giants, A’s, Angels and Padres. The bill is expected to go before the Assembly Committee on Arts, Entertainment, Sports, Tourism and Internet Media in the next week or two. Perata, who’s no stranger to cutting-edge legislation — he authored the state’s 1999 assault weapons ban, which was later upheld by the California Supreme Court — said if it takes going to court to implement his law then that’s fine with him. “I want this debate,” said Perata, who has lined up two co-authors in the Senate and three in the Assembly. Perata may also get some assistance from both baseball and Congress. Coincidentally, Major League Baseball executives are set to propose at a bargaining meeting this week that players be tested for steroids three times a year. Greg Boras, a spokesman for the Major League Baseball Players Association, couldn’t be reached on whether that’s something the union would agree to. Historically, the union has successfully fought to keep drug testing out of baseball’s collective bargaining agreement. Among major American sports, only the National Football League has implemented mandatory testing for steroids. Meanwhile, U.S. Sen. Byron Dorgan, D-N.D., held a hearing Tuesday to look into reports of rampant steroid abuse in baseball. Dorgan is the chairman of the consumer affairs, foreign commerce and tourism subcommittee of the Senate Commerce Committee, which oversees athletics. The hearing was at the request of Dorgan and Sen. John McCain, R-Ariz., and included testimony from representatives of Major League Baseball’s commissioner’s office, team owners and the union. Dorgan’s spokesman, Barry Piatt, said legislation has not been drafted, but could be forthcoming. He added that he wasn’t aware of the California bill. Kenneth Vierra Jr., a sports and employment lawyer at San Francisco’s Lynch, Gilardi & Grummer, said that without federal help, Perata could have trouble getting his pitch over the plate. “I’m not sure the state’s interest would trump the privacy rights of an individual [athlete],” said Vierra, who represents NFL players. WATER POLO AND BASEBALL The closest the California Supreme Court has come to dealing with the issue was in 1994′s Hill v. National Collegiate Athletic Association, 7 Cal.4th 1, in which students at Stanford University challenged the NCAA’s policy of random drug testing of athletes participating in post-season championship contests. In an opinion by Chief Justice Malcolm Lucas, the California court in Hill used the federal “reasonable expectation of privacy” standard as a framework for interpreting the California Constitution’s privacy rule. Lucas asserted that “athletic participation carries with it social norms that effectively diminish the athlete’s reasonable expectation of personal privacy.” The court further noted that “supervised athletic competition presupposes a continuing exchange of otherwise confidential information.” The U.S. Supreme Court bolstered that ruling a year later in Vernonia School District v. Acton, 515 U.S. 646, when it said an Oregon school district’s policy of random weekly testing of athletes did not violate the Constitution’s Fourth or 14th Amendments. Vierra said drug testing is a serious invasion of privacy. And while the NCAA has a direct interest in protecting the health of collegiate athletes and ensuring fair competition in the sporting events it sponsors and regulates, Vierra said California’s interest in regulating a private sport isn’t as well defined. But Steven Mayer, an appellate partner at San Francisco’s Howard, Rice, Nemerovski, Canady, Falk & Rabkin, said he wasn’t so sure Perata’s bill would raise greater privacy concerns than the NCAA’s program. “Hill upheld drug testing,” said Mayer, who represented the plaintiffs in that case. “It would seem if you can regulate water polo, you can regulate [baseball.]“ He said problems could arise, though, if the state attempted to regulate interstate commerce. Mayer added that baseball’s collective bargaining agreement would likely preempt the application of Perata’s bill. Vierra, meanwhile, says the state might lack the jurisdiction to force players who play for teams based outside California to submit to screening. “The best [Perata] could hope to do is drug-test athletes in the state,” Vierra said. John Sims, a professor of constitutional law at the University of the Pacific’s McGeorge School of Law in Sacramento, agreed that it will be difficult for the state to overcome a negative commerce clause challenge. “This is very high-handed on the part of California,” Sims said. He said the assumption that California could impose its will on the rest of the country is something worth debating. “It’s quirky in its application,” he said about the legislation. Perata said he expects and welcomes a court fight over what he’s calling the “Performance Enhancing Substance Prevention Act of 2002.” He said he’s been told that the state has standing under the commerce clause and he said the state’s involvement in sports is not unprecedented since California already regulates boxing. “No one’s said we don’t have a right to do this,” said Perata, who claims to have the support of the Los Angeles Dodgers and the Oakland Athletics. Through a spokeswoman, A’s President Mike Crowley denied that the club supports Perata’s bill and said the organization had no comment on the legislation. But regardless of whether he draws support from the league and its clubs, Perata said steroids and similar drugs are illegal and it’s up to the state to craft a policy to stop people from taking them. “We spend a zillion dollars on the war on drugs but allow professional athletes to mock the law,” he said.

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