Brain Doping, Baseball, and a Supreme Court Justice's Crystal Ball

Forget steroids. About 10 percent of Major League Baseball players are allowed to use cognitive-enhancing drugs—that is, brain boosters. Specifically, players are permitted to take Adderall, a prescription stimulant used to treat attention deficit disorder, and also used off-label to boost focus, memory, and concentration.

Given MLB's highly-public War on Performance-Enhancing Drugs—see Rodriguez, Alex—this raises an obvious question: Why is body-buffing testosterone verboten, while mind-bolstering Adderal is A-OK? How did we get here?

Would you believe it has something to do with Supreme Court Justice Antonin Scalia?

Flashback to 2007, a year that saw a staggering number of sports scandals. Michael Vick's dogfighting ring, NBA referee Tim Donaghy's sports gambling indictment, Nikolay Davydenko's tennis match-fixing controversy, and Bill Belichick's "Spygate" drama all captured headlines.

The scandal-filled year ended on December 13, 2007 with the release of a sledgehammer called the Mitchell Report. Authored by former U.S. Senator George Mitchell, the 409-page tome represented Major League Baseball's first attempt—in the public domain anyway—to achieve some sort of truth and reconciliation about the sport's impossible-to-ignore steroid problem. Congress was starting to ask questions about MLB's drug-testing protocol. Legislators also were wondering if professional baseball continued to deserve its valuable antitrust exemption, which had been a matter of federal law since 1922.

Baseball had to do something to keep Congress at bay. The Mitchell Report was the answer.

The report was a page-turner. It named names. And not just the names of obscure minor leaguers or big league journeymen. Some of the biggest names in the sport were exposed—Roger Clemens, Andy Pettitte, Jason Giambi, and Rafael Palmeiro among them. MLB commissioner Bud Selig, whose 23-year tenure leading the sport ended last month, probably sensed an opportunity. The Mitchell Report could be used as leverage to further compel an entrenched players union—long resistant to the specter of random and targeted league-wide testing—to capitulate.

It worked.

MLB and the Major League Baseball Players Association entered into an enhanced collectively bargained Joint Drug Agreement. The JDA, as it soon became known, was hailed by Selig as the most stringent in American professional team sports. In the course of re-reading the Mitchell Report, however, I had a needle-in-the-haystack moment. It was buried in footnote 19 on page 50:

Did MLB and its commissioned investigator ignore an entire area of performance-enhancing drug use in the interest of mere expediency? A trio of academic papers were insightful. The first, published in Nature in 2007, included the eye-catching title "Professor's Little Helper." Authors Barbara Sahakian and Sharon Morein-Zamir described how stimulant drugs such as Adderall, Ritalin, and Provigil can "improve memory, concentration, [and] planning and [also] reduce impulsive behavior and risky decision-making." Off-label, the authors noted that perfectly healthy individuals can take the substances for intellectual performance, sport enhancement, irregular shift work, or mental recovery from fatigue.

The second scholarly article, by Henry Greely and a number of co-authors, appeared in Nature a year later. It reached two big-picture conclusions: (a) "we call for a presumption that mentally competent adults should be able to engage in cognitive enhancement using drugs" and (b) "[s]afe and effective cognitive enhancers will benefit both the individual and society."

In a follow-up paper enticingly titled "Enhancing Brains: What Are We Afraid Of?" Greely, a professor at Stanford Law School, distinguished sports from brain doping in the non-athletic workplace:

In other words, Greely argued, brain doping at the office is all well and good, because the whole world benefits, and besides, it's hard to see how drug use would create clear and unfair competitive advantages. (Tell that to two law firm associates competing for partner via billable hours. But I digress.) In sports, on the other hand, the unfair advantage is plain—and moreover, it's just sports!

Assuming you buy Greely's take—or at least accept the conclusion that drugs like Adderall can, in fact, provide a performance boost on the field, then it's fair to ask: Why would PED-skittish MLB allow its use?

U.S. Supreme Court Justice Antonin Scalia's pen provides a plausible answer.

Flashback again: In 2001, the Supreme Court decided the case of PGA Tour v. Casey Martin. Martin, a one-time college teammate of Tiger Woods, was trying to make it as a professional golfer on the PGA Tour. He suffered from a degenerative circulatory disorder called Klippel-Trenaunay-Weber Syndrome since birth. The condition was debilitating, leaving Martin unable to walk the 18 holes of a golf course.

When the PGA Tour refused to allow Martin's use of a cart during tournament play, citing its walking rule, Martin sued under the Americans with Disabilities Act (ADA). In a 7-2 majority opinion authored by Justice John Paul Stevens, the Supreme Court ruled in favor of Martin, finding him to be covered under the ADA and, in turn, invalidating the PGA Tour's rule that all competitors walk between shots during tournament play. Justice Stevens determined that having professional players riding in a golf cart would not fundamentally alter the nature of the tournaments. Simply put, a rule mandating that golfers walk the course was not deemed an essential part of the game.

Justice Scalia, a 1986 Ronald Reagan appointee, dissented. Joined by Justice Clarence Thomas, the legal jabs came early and often. In his first paragraph, Justice Scalia posited that the ruling "distorts the text of the [ADA], the structure of the ADA, and common sense." On the issue of the Supreme Court second-guessing the PGA Tour's long-held rules mandating competitors walk, he opined:

Justice Scalia was just warming up.

On the (then-hypothetical) issue of whether a baseball player with attention deficit disorder should be afforded special accommodations, Justice Scalia looked into his crystal ball:

When I replaced the phrase "the parents of a Little League player" with "a Major League Baseball player" in the excerpt above, the implication hit me—Justice Scalia, in full-blown soothsayer mode, was seemingly foreshadowing a boom of brain drugs in baseball.

Fearing Martin­-like lawsuits under the Americans with Disabilities Act would be imminent, did MLB opt for a path of reduced legal friction and simply move to allow players to use Adderall-type stimulants instead of fighting numerous bad-for-public-relations court battles and union grievances across the country?

Following the publication and widespread media attention stemming from the release of the Mitchell Report, the league and the players union further amended their Joint Drug Agreement. The change involved a quasi-independent program administrator and the dissemination of a succinct annual report summarizing the results. I tracked down copies of the report for four years (2011-2014) and was particularly interested in two key aspects.

First, how prevalent were pre-approved therapeutic use exemptions (TUEs) and for what reasons? Second, how frequently were MLB players failing drug tests because of brain doping?

The answers were eye-opening. I constructed a back-of-the-envelope table aggregating baseball's TUEs:

Among the 465 baseball players granted a TUE to use otherwise-banned substances, 97 percent were for attention deficit disorder (ADD)—the same condition pinpointed by Justice Scalia in his Martin hypothetical. The ADD number dwarfed all others combined. For example, a mere six players were permissibly treated for hypogonadism, a condition where a man's body fails to produce "normal" levels of testosterone. For actual violations during the same four-year period, 51 non-TUE players reportedly had "adverse analytical findings resulting in discipline." Of the 51 players who were busted, 33 were for Adderall.

By contrast, only four were disciplined for synthetic testosterone use.

According to a 2006 study, about 5.4 percent of the total adult male population in the United States suffers from ADHD. In MLB, however, the rate—as determined by looking at TUE numbers—seems closer to 10 percent. Are baseball players a unique medical population? Or have they found a unique PED loophole?

Opinions vary, but one lesson from the numbers seems clear: Only the players who do not follow protocol by obtaining a TUE in advance are disciplined. This path-of-least-resistance addresses any concern over the parade of horribles forecasted by Justice Scalia. Senator Mitchell's footnote 19 is safe. There will almost certainly be no amphetamine and Adderall-specific sequel to the Mitchell Report.

Certain players won't get a fourth strike during games, but that doesn't mean they're not getting a potential mental edge.