Yesterday the Baseball Hall of Fame announced the results of the annual Baseball Writers of America balloting to determine new inductees. As has been reported ad nauseum, many members of the BBWAA refuse to vote for any player who has admitted to — or even been accused of — using any substance designated by the government as “steroids” or a controlled substance. The writers justify this litmus test on the basis of section 5 of the Hall of Fame’s voting requirements, which state a voter should base his decision on a nominated “player’s record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played.” Somehow the phrase “accused of steroid use” is read into this rule and overrules every other factor actually stated in the rule.
Nevertheless, I’m not here to harp on the steroid issue per se. I do, however, wish to focus on one particular argument employed by the steroid jihadists. Aside from the (misguided) belief that using any substance declared icky by the government is evil, the core complaint of many baseball writers is that steroid use, particularly in the late 1990s, distorted all statistical achievements recorded during that period. But-for the use of steroids — the exact extent of which remains unknown — all of the records, especially the hitting records, would have been different. Therefore, some baseball writers maintain, it’s appropriate to discount or dispense with these records entirely such that the Hall of Fame reflects the world that would have existed in the absence of any suspected steroid use.
This is an example of what I call the Rambus fallacy. This refers to the signature Federal Trade Commission case of the 2000s — perhaps a reflection of the lack of drug testing of FTC lawyers — where the agency attempted to prove the existence of a parallel universe within the computer memory industry. I’ve written extensively on the Rambus case and only recite the barebones outline here: Rambus developed and patented several inventions designed to improve dynamic random access memory (DRAM). Rambus intended to license these patents to incumbent DRAM manufacturers. To that end, Rambus briefly participated in several meetings of JEDEC, the organization that establishes common standards for various semiconductors, including DRAM. Rambus never officially presented its patented technologies for standardization, but all JEDEC members were aware of Rambus’ patent claims and intentions.
When the inevitable patent-litigation war broke out, JEDEC members sought assistance from the FTC. The FTC developed a novel theory of antitrust liability based on the fact Rambus failed to disclose patents applied for (but not yet received) while a participant in JEDEC. Basically the FTC said Rambus had a duty under the antitrust laws to raise its hand during the JEDEC meeting and volunteer the fact it had these applications outstanding. Never mind the fact that JEDEC rules did not require such disclosures, which a federal appeals court determined just before the FTC’s case went to trial.
Normally, the FTC would simply issue an injunction — don’t do it again in the future — but that would have been meaningless, as Rambus never intended to participate in JEDEC again. So the FTC got creative and decided it had the power to fashion a remedy that would restore the “but-for world” that would have existed had Rambus raised its hand so many years ago. In other words, the FTC created a parallel universe.
In this parallel universe — created with the help of some paid “experts” and testimony from self-interested JEDEC members — the FTC determined how JEDEC and the DRAM market would have evolved over the course of several years dating back to the alleged date of Rambus’ original antitrust violation. Much like the baseball writers and the Hall of Fame, the FTC claimed to know exactly what choices would have been made and why. More to the point, the FTC judged all this by changing just a single factor — the Rambus non-disclosure — and assuming all other factors were either irrelevant or remained constant. Just as the baseball writers have done with steroids.
Ultimately the FTC’s fantasy world collapsed in the court of appeals. At least on that day the court was unwilling to read Section 5 of the Federal Trade Commission Act as a license to engage in speculative fantasy about the world that might have been. Unfortunately for a handful of superbly talented baseball players, there’s no similar body willing or able to prevent the BBWAA from using section 5 of its charter to rewrite the recent history of baseball to accomodate the prejudices and ignorance of sportswriters.