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Monday, November 12, 2007
 
SI.com Column on Legal Implications of the Mitchell Report

I have a new column on Sports Illustrated.com entitled "Implications of the Mitchell Report."

It evaluates the private nature of the report and examines potential outcomes for those who are named in it, including potential punishment by Commissioner Bud Selig (a topic Rick blogged about here), having their contracts attempted to be voided by their teams, and, if any players are erroneously named, their potential to bring libel lawsuits against Major League Baseball.

I hope you have a chance to read the piece.





9 Comments:

This comment has been removed by the author.

Blogger Jimmy H -- 11/12/2007 7:14 PM  


ok let me try this again...

Michael,

First of all, another good article, keep up the good work!

I can definately see some problems with using the report to punish players. While a positive test is not specifically named as the ONLY evidence that can be used to support some sort of reprimand here, MLB and the teams should be very careful.

On the otherside of the coin, I personally do not give much credit to the any "pre-mlb testing sanctuary" argument, while MLB may not have specifically set out a steroid testing policy until recently, steroids have been controlled substances for quite some time. The posession,trade, and use of steroids without a prescription is ILLEGAL, and as such a player may not be able to escape punishment under a morals clause or even the old "best interest of baseball".

That beeing said, it will be interesting to see what team will be first to attempt to void a contract based on the report... it is bound to happen, and with enough indirect evidence...maybe it will be successful...

Blogger Jimmy H -- 11/12/2007 7:18 PM  


Interesting take. But note that the criticism of Mitchell rests on a very particular conception of judicial proceeding and fact-finding--the one we associate with courts within the United States, requiring adversary testing and confrontation. But there are other, reliable ways of engaging in fact-finding and the Mitchell Commission is similar to many of these. We could analogize it to a grand jury, which similarly is unbounded by the rules of evidence in conducting its investigation and coming to (at least preliminary) conclusions. We could analogize it to an administrative agency, which often follows less rigorous procedures before imposing non-criminal sanctions. And, of course, the judicial system outside the United States is far less concerned with the problems of hearsay or rigid rules of evidence and puts more power in the hands of the single judicial investigator who acts as both fact-gatherer and fact-finder. Or we could read the report as a prosecutor's brief.

The key is that the Report should not alone be the basis for punishment; it only should be a starting point. Appropriate due process requires that if MLB or a team is going to rely on the Report, that the players be given a chance to present their arguments and to refute the evidence against them.

Blogger Howard Wasserman -- 11/13/2007 12:25 AM  


Howard,

Everything you said makes sense, but what often gets overlooked on this issue is labor law. Disciplining players is a mandatory subject of collective bargaining, and the union and league have negotiated specific provisions specifically addressing the issue of disciplining players for steroid use. In light of this, I don't see how the league or any team can discipline a player based on their own investigation.

Blogger Rick Karcher -- 11/13/2007 8:41 AM  


I don't understand Selig's reasoning on his possible ability to punish players absent a positive indication of drug use through a drug test. The report, which I don't doubt has been conducted by credible individuals; has based some of its results on hearsay and people with questionable reputations. If I was a player dismissed from a team for a contract violation stemming from the results of these findings, I would want a more credible explanation for their findings other than testimony of potentially biased persons associated with steroid distribution.

Blogger Jordan Bird -- 11/13/2007 1:36 PM  


It seems that it could be difficult to void a player's contract as the result of being named in this report. The elements provided in Section 7(b)(1) of Article 3 are ambiguous. The language lacks a concrete meaning.
In particular the use of steroids arguably can be seen as a way to stay in "first class physical condition" (steroids are performance enhancing drugs) to compete at the Major League level. If the player used steroids before the MLB steroid policy was implemented, then the player has not disobeyed team training rules, as I would venture to say that most if not all teams did not implement pre MLB steroid policies. There also seems to be a large amount of leeway in determining whether private steroid use constitutes poor citizenship or poor sportsmanship. All of these terms seem highly debatable.

Anonymous Chuck Tveite -- 11/13/2007 2:24 PM  


Again, the fact that a player used illegal synthec hormones (steroids) before the MLB steroid policy was implemented does not make the use ok... the fact that MLB did not specifically prohibit the use of steroids did not make it permissable, as MLB could not permit an activity contrary to public policy or federal law in the CBA.

As far as using steroids to stay in "first class physical condition", that argument is creative but seems rather weak to me for the following reasons:

Arguably, you can throw the ball faster or hit the ball further if your body responds well to the addition of synthetic hormones...

BUT

Steroid use has MANY unwanted side effects that seriously impact the "first class physical condition" of the athlete...

Consider these side effects and see if you still think steroids promote "first class physical condition":

enlarged prostate
swollen feet and ankles
trembling
liver damage
high blood pressure
various cancers
aching joints and increased joint injuries
reduction in HDL (good)cholesterol
psychological disorders such as insomnia and agitation
increased weight gain

I'm not saying it's not a decent argument, but it just does not sit well with me.

Blogger Jimmy H -- 11/15/2007 10:44 AM  


There is a major question of timing here. Most of these ill effects do not reveal themselves until years after the player has required (and the contract is over). And even if steroids cause the player to break down somewhat early (think of how Mark McGwire's body gave out by 2000-01), the team still got the benefit of his steroids-enhanced top-physical-condition performance. Would the Cardinals (any many teams) take the 3 huge years they got even if it meant his health declined more quickly?

Blogger Howard Wasserman -- 11/15/2007 2:30 PM  


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