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Wednesday, February 11, 2009
 
A-Rod Aftermath: What about the 103 Other Names?

I have a new SI.com column on how the legal process intersects with possible disclosure of the names of the 103 Major League Baseball players (plus Alex Rodriguez) who tested positive for steroids. Here is an excerpt:

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Through various means, player agents may likewise be aware of at least some of those names, and they could publicly reveal those names over time. Rival agents or agents for rival players might, for instance, leak damaging information about the other's clients. Legal and ethical responsibilities for agents remain a murky area of law, particularly since while agents who are attorneys are normally bound by provisions in the American Bar Association Model Code of Responsibility, non-attorney agents are not. Agents of MLB players must be certified by the MLBPA and are expected to follow the MLBPA's rules for agents. Still, leaks by agents do occur and are difficult to police.

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One party not mentioned above may be the one with the greatest interest in the 103 names: Bud Selig, the commissioner of MLB. As commissioner, Selig possesses the "best interests of the game" authority, a purposefully vague concept, found in baseball's constitution (the Major League Agreement, originally drafted in 1921) and one that has been interpreted in various ways over the years by different commissioners. Selig might conclude that the 103 unknown names will hang over baseball like a black cloud, damaging the game and endangering its credibility with fans, many of whom, due to the economy, may already be inclined to attend fewer games and buy less merchandise. Although it would likely lead to legal objection by the MLBPA, Selig could release the 103 names (if he is aware of them) or demand that the MLBPA does so. Such moves would likely trigger a dramatic showdown between the league and the players, a provocative, though ultimately sad situation that could only exist in this Steroid Era of baseball.

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For the rest, click here. My thanks to Brian Packney of Bleacher Report for his kind words about this column. I also discussed the A-Rod situation on The Fox News Channel and with Lou Dobbs.





4 Comments:

As usual, the press has provided us with all of their "opinions" about what the union and MLB did and did not do in the past, and what they should or should not do in the future. But there is only one fact here, and that is that somebody, somewhere, told SI that Rodriquez was one of the 104 on the list.

A discussion regarding the disclosure of the names of the other 103 by MLB and/or the union assumes that either of them even has the names, which appears very doubtful.

But even if the union has the names, it would be a clear violation of fiduciary duty owed to those players if the union were to disclose their names. I don't even think that's debatable.

Even if MLB has the names, it can't disclose the players' names or discipline them (under the "best interests" clause) because that would violate its confidentiality obligation under the CBA. MLB would likely lose that "showdown" (as you put it) in front of the NLRB.

Blogger Rick Karcher -- 2/11/2009 7:38 AM  


Mike:

I am going to echo -- and expand upon -- much of what Rick said in his final paragraph. My understanding is that, as a matter of law, Selig CANNOT release these names without breaching the CBA, as well as risking colossal tort liability in states where tort and contract theories may overlap.

My understanding is that the terms of baseball's 2003 confidential drug testing program were reached pursuant to the CBA (an agreement amongst players and teams). Moreover, this "confidentiality" requirement was not just a minor term of this agreement. It was its essence. (There are all sorts of statements that Donald Fehr had held out on past drug testing because of confidentiality concerns).

You mention the "best interests of baseball" clause as a possible exception to allow the release of player names. However, the "best interests of baseball” clause comes from the league agreement, and not from the CBA. In the context of disputes amongst players, terms of the CBA trumps the league agreement. The CBA even explicitly states as much.

Finally, it is important not to lose sight, with respect to the "best interests of baseball," that Selig may be in a different legal position from past commissioners given two factors: (1) the presence of a players union which brings labor law into the scope, and (2) that the MLB Constitution no longer requires the commissioner to be a neutral.

Sorry for the length of this response; however, a number of my students tipped me off to your post and asked for my thoughts. So, I thought I would try my best to provide them. Hopefully, we can debate further next time we cross paths.

All the best,
Marc

Anonymous Marc Edelman -- 2/11/2009 9:54 AM  


I am troubled by the release of the 103 other names. Additionally, why was A-rod the only name released?

The players agreed to testing on the condition that the players names would remain confidential (which was reached pursuant to the CBA). I think their are several means to revealing the remaining names as Prof. McCann pointed out.

I would like to believe that the MLB would lose the "showdown" as Rick stated, but what about the fact that it is illegal to use steroids without a valid prescription?

It is not clear who has the list, or who has seen it. I am fairly certain that Selena Roberts and David Epstein will not disclose their confidential sources. How would these the legal or bargaining methods reach these unknown individuals?

Anonymous william -- 2/11/2009 2:54 PM  


One point can't be ignored here: The Commissioner and/or the MLBPA may have no choice in the matter if the Feds prosecute and the list is introduced into evidence (if it hasn't already been subpoenaed, and if a court hasn't ordered the list turned over). Once that happens it seems that the cat will be out of the bag; while someone who is only accused if taking roids (Mark McGwire) may get his name cleared--or not--how can players not on the list clear their names ("Where do I go to get my reputation back?") if they don't know whether their names are on the list or not?

Anonymous Anonymous -- 2/20/2009 12:30 PM  


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