The next steps
What's in store for those named in Mitchell Report?
Posted: Thursday December 13, 2007 1:10PM; Updated: Thursday December 13, 2007 4:14PM
With the release of the Mitchell Report today, here are some key legal questions facing Major League Baseball and the players named in the report.
1) Can commissioner Bud Selig discipline current players named in the report?
Yes, but not without a fight from the Players' Association, which would likely challenge any punishments as violating the MLB-MLBPA collective bargaining agreement. Chiefly, the MLBPA would cite the limits of the comprehensive drug testing policy that it, along with the MLB, agreed to in January 2005. The policy specified punishment for steroid use would come as a result of a failed drug test or a conviction for possession. On the other hand, the policy did not expressly state Selig could punish a player only in those specific instances.
The Players' Association will also object to the nature of evidence compiled in the report, which reflected a private investigation and not one bound by the federal rules of evidence and other safeguards that often constrain governmental inquiries. Parts of the report rely upon the testimony of disreputable persons, such as those who sold illegal steroids. Other parts rely upon hearsay, which are statements made outside of the courtroom that are usually deemed inadmissible because they are prone to fabrication and exaggeration.
Selig's authority to discipline players may ultimately rest on what arbitrator Shyam Das decides in regard to Kansas City Royals outfielder Jose Guillen's 15-day suspension. Last week Guillen, along with Baltimore Orioles' outfielder Jay Gibbons, was suspended by Selig for allegedly receiving human growth hormone after it had been banned by baseball in January 2005. Guillen hasn't been charged with a crime nor (apparently) has he failed a drug test, meaning his suspension for steroid-related activities is not based on the criteria outlined in the comprehensive drug-testing policy. The MLBPA quickly filed a grievance, claiming Selig's suspension lacked legal support. Das' decision may well set precedent for whether Selig can punish players for merely being named in the report.
2) Can Selig discipline retired players named in the report?
Yes, though more through stigmatization than actual punishment. Selig could, for instance, attempt to exclude such players from consideration for the Baseball Hall of Fame, move to qualify their statistical achievements with asterisks or exclude them from commemorative events. Such maneuvers, however, could seem unnecessary and incite rebuke.
An interesting scenario could emerge if a retired player named in the report presently works for an MLB organization, perhaps as a coach or scout. Selig has the authority to punish employees of MLB teams. It is less clear whether he could punish employees for past transgressions while playing. The nature of their employment has changed considerably from their playing days, though they still represent the game.
Retired players' MLB pensions -- often among those players' most valued assets -- are not touchable.
3) Can a team void the contract of a player named in the report?
A team could attempt to use Section 7(b)(1) of Article 3 of the Uniform Player's Contract to void a contract. It 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." The Players' Association, however, would argue that being named in a report should not trigger any of those conditions, since, as noted above, the report is based in part on the commentary of disreputable persons and hearsay.
4) What if a player has been falsely named?
There would be at least two significant consequences. First, a false naming would deeply embarrass Selig and George Mitchell and undercut the report's credibility.
Second, it would create the potential for a libel lawsuit against Mitchell and MLB, which has reportedly indemnified Mitchell against any personal liability. Libel constitutes a false and defamatory statement published in writing. It is very difficult to prove, however, particularly when the plaintiff is a public figure, such as a major league baseball player. A public figure must show the defendant had "actual malice," meaning knowledge or recklessness, in making the false and defamatory statement. In the absence of a probably non-existent "smoking gun," actual malice seems exceedingly unlikely with Mitchell and others on his investigation team.
5) Is Mitchell conflicted by his role as director of the Red Sox?
While leading baseball's steroid investigation, Mitchell has reportedly removed himself from any active involvement with the Red Sox. It has also been reported, however, that he will return to a paid, active advisory role with the team soon after the report is issued.
On one hand, Mitchell would seem to have an incentive to refrain from naming any star Red Sox players, particularly those who contributed to the team's World Series victories in 2004 and '07. On the other hand, Mitchell has been entrusted by U.S. presidents and world leaders to negotiate some of the most important peace deals in the 20th century. It seems unlikely he would endanger his extraordinary reputation in order to protect a few baseball players. This is a guy with a lot on the line, perhaps more so than any player.
6) Is it possible that Congress could get involved again?
Politically, it would be good to bring the topic of steroids in baseball back up. Congress could say baseball needs tougher policies than those recommended and that the extent of the problems suggests baseball wasn't capable of handling it itself, and that given that players are role models, there's a public health interest in seeing baseball cleaned up. If baseball is incapable, then Congress might feel it's their responsibility to do so. Remember, they have the subpoena power that Mitchell lacked.