Performance Enhancing Drugs and American Pastimes: First Baseball, Now Cars
By Ryan Talbott, Staff Contributor
Barry Bonds. Roger Clemens. Sammy Sosa. Mark McGwire. What do these names have in common with Volkswagen? Both evoke American pastimes. The individuals listed above were some of the greatest baseball players to ever play the game. They took the field and participated in a game that is fondly considered to be part of American culture and history. The American automotive industry, in which Volkswagen is now a major player, is also part of America’s culture. Volkswagen and its iconic “beetle” occupies a corner of American car culture alongside cars such as Dodge’s Challenger, Chevrolet’s Corvette, and Ford’s many pick-ups.
Volkswagen and the legends of baseball share something else besides representing their respective American pastimes: they were both also willing to cheat to get ahead. One ex-major-leaguer claimed that as many as 80% of players have taken banned performance enhancing drugs to get ahead, and those drugs worked. Players taking performance enhancing drugs smashed records, stretched imaginations and performed herculean acts on the ballfield– in short, by cheating they successfully improved their performance.
In 2011, Volkswagen announced that it wanted to achieve what the baseball greats had: it wanted to conquer an American pastime and was willing to do whatever was necessary to achieve that goal. The company installed cheat devices, which altered the way their cars’ engines operated while undergoing emissions testing so as to come within regulatory emissions limits. However, when car owners drove the cars outside of emissions testing, the device would turn off the performance-draining, emissions-limiting technology to provide customers with improved engine performance. And as with the baseball greats before them, Volkswagen’s cheating worked. Under its regime of engine-test cheating, Volkswagen became the largest automaker in the world. Because both the cheat devices and the increased emissions resulting from their use are illegal, Volkswagen now faces massive monetary fines.
The comparison between baseball legends and Volkswagen does not have to end with cheating and pastimes: Volkswagen could learn from how Major League Baseball handled its cheating scandal. When the widespread performance enhancing drug problem was discovered in Major League Baseball, Congress held hearings which forced the sport to take a hard look in the mirror. When it did, Major League Baseball came up with a solution: a new enhanced system for testing and dealing with the problem. The professional baseball industry implemented the system itself, supported by current and ex-players alike, as the pressure to change had become too intense to continue to resist.
It is time that Volkswagen and other automotive companies facing cheating scandals also take a long look at themselves in the mirror, recognize that there is a problem, and come up with a solution. One solution could be a private environmental governance agreement. Private environmental governance occurs when an industry adopts common policies to achieve traditionally governmental ends. Examples of these private agreements can be seen in the Forest Stewardship Council and the Marine Stewardship Council, which seek to manage natural resources. These organizations use stakeholder groups and central administrative bodies to set and enforce standards, certify compliance, and provide systems for dispute resolution. They achieve primarily governmental functions and even implement standards where governments cannot. The automotive industry, just as baseball did, can set its own ambitious standards and implement those standards itself. To ensure the success of such an agreement, Volkswagen needs to take the initiative and recognize that it can make a good business decision, rehabilitate its image. Also, enacting an agreement that could potentially harmonize environmental standards for the entire industry making compliance easier, resulting in increased efficiency.
After baseball reestablished itself in a new post-cheating era, Americans welcomed the game back. The question remains as to whether Volkswagen and its industry compatriots will take the steps necessary to address their own systemic problems, and in doing so, regain the trust of the American people.
 Deni Carise, Baseball and Steroids: What’s the Big Deal?, Huffpost (Nov. 12, 2013, 3:45 PM), https://www.huffingtonpost.com/deni-carise/baseball-and-steroids-wha_b_3887380.html.
 See Marc Fisher, Cruising toward oblivion: America’s once magical – now mundane – love affair with cars, Wash. Post, Sept. 2, 2015, http://www.washingtonpost.com/sf/style/2015/09/02/americas-fading-car-culture/?utm_term=.fe4d7db1e6aa.
 See id.
 Carise, supra note 1.
 Mitchell Grossman et. al., Steroids and Major League Baseball, 2-3 (2007), http://faculty.haas.berkeley.edu/rjmorgan/mba211/Steroids%20and%20Major%20League%20Baseball.pdf.
 See Danny Hakim, Aaron M. Kessler, & Jack Ewing, As Volkswagen Pushed to Be No. 1, Ambitions Fueled a Scandal, N.Y. Times, Sept. 26, 2005, https://www.nytimes.com/2015/09/27/business/as-vw-pushed-to-be-no-1-ambitions-fueled-a-scandal.html.
 Kevin Tarsa, Note, Won’t Get Fooled Again: Why VW’s Emissions Deception is Illegal in Europe & How to Improve the EU’s Auto Regulatory System, 40 B.C. Int’l & Comp. L. Rev. 315, 316 (Mar. 2017) (note that such devices are also known as “defeat devices”).
 Hakim, supra note 8.
 The Associated Press, Hall of Famers tell Congress they back Selig’s proposal, Seattle Times, Sept. 28, 2005, https://www.seattletimes.com/sports/hall-of-famers-tell-congress-they-back-seligs-proposal/.
 Kevin Tarsa, Note, Won’t Get Fooled Again: Why VW’s Emissions Deception is Illegal in Europe and How to Improve the EU’s Auto Regulatory System, 40 B.C. Int’l & Comp. L. Rev. 315, 317 (Mar. 2017) (providing examples of various auto manufacturers fined for illegal practices).
 Michael P. Vandenbergh, The Emergence of Private Envtl. Governance, 44 Envtl. L. Rep. News & Analysis 10125, 10125-10126 (2014).
 Id. at 10126.
 See Hakim, supra note 8.
 John M. Amandolare, Clean Air the Natural Way: A Case for Harmonizing Global Auto Emissions Standards, 38 Syracuse J. Int’l L. & Comm. 201, 202 (2010).