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Sunday, October 14, 2007
Can the Commissioner Discipline Players for Steroid Use Based Upon Mitchell's Report?

A lawyer for the firm representing Major League Baseball in the steroid investigation told team representatives during a conference call Friday that George Mitchell's long-awaited report is expected to be issued in November or December, and there is a strong possibility that the report will contain the names of individual players. This raises some interesting questions about how this report should be viewed in conjunction with the collective bargaining agreement, which contains specific provisions regarding the discipline of players for steroid usage. What can the commissioner do with this report? Does the commissioner have the authority to discipline the named players based on evidence other than a positive drug test result? And if so, what discipline can he impose?

Let's start with the source of the commissioner's power and authority. The league constitution and bylaws provide the commissioner with broad authority in unambiguous language to investigate any conduct not in the best interests of the game, and to determine the appropriate action to be taken. However, the scope of his authority as provided under the league constitution and bylaws must be read in pari materia (together) with the collective bargaining agreement. Thus, the CBA may alter, modify, limit or otherwise affect the power and authority of the commissioner as established by the league constitution and bylaws. In player disciplinary actions, the CBA may place limits upon the allowable suspension or fine that may be imposed by the commissioner. The CBA could also set evidentiary standards that must be met before disciplinary action can be taken by the commissioner for certain types of player misconduct. So for example, if the CBA provides that the commissioner may discipline a player for off-field misconduct upon a conviction or admission of guilt, then the commissioner could not impose discipline based upon the results of his own investigation.

In January, 2005, the MLBPA and MLB heavily negotiated a comprehensive drug testing policy that sets forth specific parameters upon which players may be disciplined for use of performance enhancing drugs. That drug testing policy was incorporated into the most recent version of the CBA and contains detailed provisions regarding (1) when and how often players can be tested for steroids, (2) the manner in which they can be tested, (3) what drugs they can be tested for and (4) the precise discipline that may be imposed on players who test positive once or more than once. Thus, two questions are raised:

1. First, does the commissioner have the authority to discipline players based upon evidence other than positive test results?

The key issue is essentially the intent of the parties when they drafted the policy, but the problem is that they didn't address the use of evidence other than positive test results. A reasonable interpretation of the CBA would be that the commissioner's authority has been modified by setting an evidentiary standard that must be met in order for a player to be disciplined for steroid use (analogous to a requirement of conviction or admission of guilt), such that a player can't be disciplined unless he tests positive. Thus, an arbitrator or judge could reasonably conclude that if the parties had contemplated that the commissioner would have the authority to discipline a player based upon the commissioner's own investigation in addition to a positive test result, then the parties most certainly would have preserved that power in the CBA (or, at a minimum, that the commissioner would have insisted upon language making it clear that nothing in the policy limits or otherwise modifies the commissioner's authority to discipline players on grounds as he sees fit).

Conversely, maybe an arbitrator or judge would conclude that the union should have insisted on adding language that prohibits the use of evidence other than positive test results. So an alternative interpretation of the CBA would be that, since the parties did not specifically address in the CBA whether a player could be disciplined for steroid use on the basis of evidence other than positive test results, the commissioner's authority has not been altered or modified in any way whatsoever. I see two problems with such an interpretation. First, it would make all of the heavily negotiated provisions contained in the CBA regarding testing and discipline for steroid use superfluous! In other words, if the CBA specifically states that a player can be suspended for X number of days if he tests positive a first time and Y number of days if he tests positive a second time, these provisions become virtually meaningless if the commissioner can circumvent them by suspending a player for X, Y or even Z number of days without a positive test result. Second, there was a true "benefit and detriment" (i.e. consideration in contract law terminology) to both sides in an arm's length negotiation over a mandatory subject of collective bargaining. Thus, with the adoption of the policy, the commissioner obtained the ability to test players for steroids with specific penalties for first time and repeat violators, which also provided the players with clarity, predictability and assurance that the commissioner has sufficient grounds to impose discipline for steroid use.

2. Second, if he has the authority to impose discipline without a positive test result, what disciplinary action can he impose? Even if the CBA is not interpreted to alter or modify the commissioner's authority to impose discipline without a positive test result, what discipline can be imposed by the commissioner? Arguably, evidence of steroid use other than a positive test result is not as reliable as a positive test result. So if the CBA states that the commissioner can suspend a player for X number of days for a first time positive test result, is it reasonable to conclude that the commissioner would have the authority to suspend a player for more than X number of days without a positive test? Could the union argue that any suspension of a named player in Mitchell's report must therefore be less than X number of days?

This is going to get interesting, and I look forward to blogging on it as events unfold...


the biggest punishment is going to be the release of names.

Blogger aaron -- 10/15/2007 9:59 AM  

Will the release of names be a "punishment"?

Releasing the names without proper facts to support the conclusions will be improper but I do not see it as punishment.

What is the Mitchell investigation liability if they release the names without proper evidence?

Anonymous Richard -- 10/15/2007 10:11 AM  

A lawsuit for defamation. But since any player named almost certainly is a public figure, MLB, Mitchell, et al. only will be liable if they knew they falsely named players.

Blogger Howard Wasserman -- 10/15/2007 12:03 PM  

Buster Olney reports in his blog that MLB is covering Mitchell for any liability that may result from naming names...

Could get interesting?

Anonymous Anonymous -- 10/15/2007 12:06 PM  

It seems to me that the CBA should be followed, otherwise bargaining is pointless, and the CBA is meaningless.

I personally read the 2005 steroid testing provisions as a limitation on the degree of intrusion and evidentiary standard that can be imposed by the commissioner. I think the fact that a positive test result is stressed in the CBA, clearly indicates the intent of an evidentiary threshold here.

In the CBA, the commissioner is granted some limited powers in the event of a positive drug test, the absence of any mention of limited owers in a case where there is no test should then be read as an absolute limition of powers, or in other words, no power at all.

At least this is what I believe to be the most reasonable interpretation of the CBA.

Blogger Jimmy H -- 10/16/2007 12:55 PM  

The Commissioner CANNOT discipline an individual player without an in dividual positive test result.

Lets say, an invoice named a player of purchasing banned substances, was sent to the players home address and individuals are willing to testify that the substances were delivered to the player, how do we know the player actually took/used the substances, without a positive test?

Anonymous Richard -- 10/17/2007 10:33 PM  

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