Now that A-Rod's name is out, will 103 others follow? (cont.)
It is also possible that players could pursue direct legal channels to force the MLBPA to reveal the names. The Landrum-Griffin Act of 1959, for instance, regulates internal union decisions. It offers members a private cause of action in the event of a breach of fiduciary duty. Although the fiduciary duty normally relates to the handling of finances and funds, it also embodies a general concept of trust. Players within the MLBPA might argue that the current state of affairs necessitates disclosure of the names. In addition, Section 301(a) of the Taft-Hartley Act, which pertains to the duty of fair representation, may offer a device to compel disclosure: Players could argue that it is in the overwhelming majority of players' interests for the other 103 names to be revealed, and the union's failure to do so may comprise gross negligence. These and similar types of claims would be unlikely to prevail, however.
The MLBPA is not the only party that knows of the 103 names. Those names have also been seen by judges, clerks, investigators, prosecutors, paralegals and other persons entrusted by the legal system to resolve related matters, including the BALCO investigation and the constitutionality of the seized evidence. All of these parties, however, are bound by a professional duty of confidentiality and some of them can be exposed to criminal sanction for leaking material information. There is, for instance, an extensive body of law on prosecutorial misconduct, which, while difficult to establish, can entail prosecutors leaking sensitive information to the media.
Should the prosecutors prevail in U.S. v. Comprehensive Drug Testing, Inc., however, they would be poised to legally reveal the list of players. While the ultimate disposition of the case is unlikely to be determined soon, a government victory would mean that Jeff Novitsky and other agents lawfully seized the 104 names. Based on privacy concerns, as well as concerns that release of their names would unduly prejudice them in potential legal action, the remaining 103 players could seek a court order requiring that their names be kept under seal indefinitely, or at least until the government has completed its investigation into BALCO and steroids. Even with such an order, however, the agents would have reason to interview the 103 players as material witnesses to the steroid scandal, and news of such interviews would likely become public. In short, if the government wins in U.S. v. Comprehensive Drug Testing, Inc., there is a good chance the public would learn the 103 names.
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.
Fans and media might attempt to use the legal system to uncover the 103 names. A request could be made under the Freedom of Information Act, though it is not one that would likely work. For starters, the Act only provides access to government documents found in executive branch agencies and related entities, but not federal courts, such as the Ninth Circuit. In addition, the scope of the Act contains a number of exceptions based on privacy considerations, including for personnel and medical files (for which steroids tests could apply), as well as exceptions for records compiled for law enforcement purposes, which in this case would likely refer to those prepared in the ongoing BALCO-related investigation.
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.
SI.com legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.