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Monday, August 31, 2009
U.S. v. Comprehensive Drug Testing and The List of 97
Last week, I had a column on SI.com on United States v. Comprehensive Drug Testing, where the United States Court of Appeals for the Ninth Circuit held that the federal government's seizure of computer files which implicated 104 major league players as steroids users violated those players' Forth Amendment rights (Howard discussed this case as well). The names of 97 of those players remain unknown, while through leaks, we now know that Alex Rodriguez, Sammy Sosa, David Ortiz, Manny Ramriez and a few others are on it.
Here is an excerpt from my column.
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MLBPA could eventually seek a court order that would enable it to divulge the remaining names. The MLBPA could reason that while disclosure might harm the interests of 97 players, it would serve the best interests of the far more numerous number of other MLB players, who would be cleared from suspicion. MLBPA, however, would pursue such a strategy under the peril of being sued by the 97 named players for breach of fiduciary duties. As a labor union, the MLBPA and its officials owe duties of trust and competence to each of the players. Releasing the names would undoubtedly harm the reputations of the named players and possibly jeopardize their player contracts and endorsement deals. Named players could also file a grievance with the National Labor Relations Board.
Unlike the MLBPA, Major League Baseball is not a party to the litigation. If MLB has the list, it could theoretically release it, but doing so would likely trigger a legal action commenced by the MLPBA. As part of the 2003 testing, MLB agreed to an arrangement whereby the players' names would be kept confidential and any records containing their names would be destroyed. MLB's willingness to partake in such an arrangement is significant because the collective bargaining agreement between MLB and the MLBPA imposes duties of confidentially. Although commissioner Bud Selig has not expressed a desire to release the list, the MLBPA would, in all likelihood, immediately file a grievance with the National Labor Relations Board should he do so. It may also argue that the court sealing of the names should effectively extend to MLB, since it co-coordinated the survey testing.
Commissioner Selig could nonetheless argue that the "best interests of the game" authority, as vaguely contained in MLB's constitution (a document originally drafted in 1921 and not one collectively bargained with the MLBPA), accords him sufficient authority to release the remaining names. In Selig's defense, the list has embarrassed baseball and prompted unwanted speculation as to who might be on it. Even worse for Selig, the list returns to the public spotlight every time a name or two is leaked. Selig might understandably feel that the only way the game can move on from the Steroid Era in Baseball would be to release the entire list, a move recently endorsed by Hall of Famer Hank Aaron.
In releasing the names, Selig would encounter a problem: the collectively-bargained CBA likely trumps baseball's constitution in this context. Expect the NLRB or possibly a court to dimly view any use of the best interests of the game clause to justify releasing the names, particularly since the list remains otherwise sealed and also because, according to the Ninth Circuit, the list should never have been obtained by federal agents.
The remaining 97 names may nonetheless become known through leaks. It appears that attorneys familiar with the list, or former law clerks or staff of those attorneys, are selectively divulging names to the media. By doing so, they violate both a court order and their professional and ethical duties. If caught, the leakers would be subject criminal charges for contempt of a court order and the loss of their license to practice law (or, if they are law clerks, the likely loss of the chance of being certified to practice law in any state). While the 104 players who purportedly tested positive damaged the game of baseball, attorneys and law clerks who leak names inflict the same, if not more, damage upon the practice of law and our system of justice.