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Implications of Mitchell report

It may be damning, but will findings hold up in court?

Posted: Monday November 12, 2007 3:32PM; Updated: Monday November 12, 2007 9:24PM
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By releasing the names of players in the Mitchell report, Bud Selig hopes to show Congress his sport is serious about facing its murky oversight of steroids in the 1990s.
By releasing the names of players in the Mitchell report, Bud Selig hopes to show Congress his sport is serious about facing its murky oversight of steroids in the 1990s.
AP
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Former Senator George J. Mitchell will soon produce his much-anticipated report about the use of steroids and other performance-enhancing drugs by Major League Baseball players. As speculation swirls as to which players might be named, the report also poses a number of intriguing legal issues.

First consider the report's underlying motivations. By listing names, MLB hopes to evade further Congressional scrutiny and offer closure on an embarrassing era.

Still, MLB can be criticized for ignoring years of circumstantial evidence. Had the league been more aggressive in policing the use of steroids, some of those named might not have been users.

Listing names may reveal another motivation: fans and media could be tempted to dwell on the individual failings of the named players rather than on the institutional failings of the league (and players' association) to prevent a situation where some players were regularly tempted.

However, though current players will likely be on the list, commissioner Bud Selig may not be able to punish them. The comprehensive drug testing policy agreed to by the MLBPA and MLB in January 2005 established specific rules on the punishment of steroid-using players, including that there be a positive drug test result. Those rules protect players from false suspicions and unpredictable punishments. But the policy did not expressly state that MLB can only punish a player for steroids use when he violated a test, meaning, perhaps, that Selig preserves the power to discipline based on the report's findings.

Just as debatable would be if a team attempts to void the contract of a player named in the report. Many teams regret certain long-term, lucrative contracts. A current player with such a contract could be named. If so, his team might regard it as a stroke of fortuity and seek contractual termination.

It could do so with some legal support. Section 7(b)(1) of Article 3 of the Uniform Player's Contract empowers a team to void a contract if a player fails, refuses or neglects to "conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the Club's training rules." Arguably, being named in such a damning report constitutes poor citizenship and poor sportsmanship, reflects a failure to keep oneself in first-class physical condition, and indicates disregard of a team's training rules.

The manner in which the report was compiled also invites scrutiny. Though impressively credentialed, Senator Mitchell and his team are not acting on behalf of any jury, judge or government agency. Their report will thus not represent a court-sanctioned inquiry, but rather the fruits of a private investigation-an investigation not bound by the federal rules of evidence. Their report could thus rely upon testimony from disreputable persons or hearsay, which are statements made outside of the courtroom that are usually deemed inadmissible because they are prone to fabrication and exaggeration. Considering the ethics of those who make and sell illegal steroids, named players might well question the implicating evidence.

That point lends itself to another: what happens if a player is mistakenly named? Can he sue for libel? He can, but libel, which constitutes a false and defamatory statement published in writing, is very difficult to prove. That is particularly true when the plaintiff is a public figure, who typically must show that the defendant had "actual malice" (that is, knowledge or recklessness) in making the statement. MLB players qualify as public figures and it seems unlikely that Senator Mitchell and his colleagues would knowingly or recklessly include the names of non-offending players, though the quality of their evidence might draw close inspection.

Michael McCann is a law professor at Mississippi College School of Law. He specializes in sports law. McCann can be reached at mmccann@mc.edu.

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