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Posted: Tuesday February 10, 2009 6:41PM; Updated: Tuesday February 10, 2009 7:59PM
Michael McCann Michael McCann >
SPORTS LAW

Now that Alex Rodriguez's name is out, will 103 others follow?

Story Highlights

Alex Rodriguez is one of the 104 players who tested positive for steroids in 2003

The players union has clear legal incentives to keep those players' names private

Federal agents seized test information in conjunction with the BALCO investigation

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Alex Rodriguez
Alex Rodriguez is the only name that has become public of the 104 players who tested positive on a survey test in 2003.
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Now that Alex Rodriguez has confirmed that he is one of the 104 players who tested positive for steroids in 2003, will we learn the identities of the other 103?

For the foreseeable future, the answer is likely no. Each of the parties who know of the names is restrained by both legal and practical considerations.

First, consider the Major League Baseball Players' Association. It has clear legal incentives to keep the information quiet. Pursuant to federal labor laws, the MLBPA owes both a duty of fair representation and a fiduciary duty to each of its member players. These duties require union officials to offer competence and trustworthiness to players. Players, in fact, are entitled to bring a private cause of action for an alleged duty breach. They could also pursue remedy through the National Labor Relations Board.

The 104 players undoubtedly trusted the MLBPA and its leaders, who promised that the names of those players would remain confidential and the players would suffer no repercussions. The MLBPA, in fact, pledged to destroy the list of names, since the '03 survey testing occurred solely for a quantitative, as opposed to qualitative, purpose: to determine if a sufficient number of players failed a sample test in order to trigger mandatory drug testing in 2004. In other words, the names of the players were immaterial but the sheer number of players who tested positive was essential.

For the MLBPA to now release the remaining 103 names would violate the trust placed by players in union executives. Such a violation would possibly expose the MLBPA to liability for breach of its duties. After all, those 103 players could suffer serious reputational damage if identified as a steroids user.

A named player, for instance, might find a company which he endorses decline to renew his endorsement contract, an experience that swimmer Michael Phelps recently encountered with Kellogg following Phelps' appearance in a damaging published photo. Alternatively, if the endorsement contract includes a morals clause, a company could seek to terminate any remaining financial obligations under the contract. Indeed, a morals clause normally enables a company to opt out of an endorsement contract if a player engages in unethical or otherwise unbecoming behavior.

Far less likely, an MLB team which employs a named player could seek to void his contract under Section 7(b)(1) of Article 3 of the Uniform Player's Contract. This clause empowers a team to void a player's contract if the 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." While being among the 103 names appears unlikely to satisfy 7(b)(1)'s requisite conduct, no player would want to risk that presumption.

In short, then, a player could suffer measurable economic damage if his name is among 103 released to the public. He thus might seek to hold the MLBPA responsible should his name be divulged.

The MLBPA releasing the list of names would also undermine, if not altogether sink, its legal argument in U.S. v. Comprehensive Drug Testing, Inc., a case that is presently before the U.S. Court of Appeals for the Ninth Circuit. In that case, the MLBPA contends that federal agents, acting on a search warrant, violated the named players' 4th Amendment protection from unreasonable search and seizure when agents found testing information on those players intermingled with information on 10 players who had been connected to BALCO and who were the actual subjects of the search warrant. Granted, should the MLBPA release the names of 103 remaining players, it would probably not indicate all of the information seized by the government. The steroids for which those players tested positive, for instance, would likely be omitted from any disclosure. Nonetheless, such a disclosure might signal to the Ninth Circuit that the MLBPA does not view those named players' 4th Amendment rights with as much meaningfulness as previously claimed.

While there are multiple rationales for the MLBPA to preserve the confidentiality of the 103 names, there is at least one justification for it to release the information: Doing so would cease the skepticism directed toward numerous players who, over the last 48 hours, have become the undeserving targets of Internet and sports radio speculation as to whether they are among the 103.

Along those lines, a player or group of players could attempt to persuade, even force, the MLBPA to release the list. A plausible device would entail exerting suasion on MLBPA executives through internal MLBPA procedures, such as voting procedures for union action or the use of lobbying by player representatives from each of the 30 teams. This group of players might also receive outside advocacy, such as from interested members of Congress, including those who may feel that baseball and union officials were not entirely forthcoming in prior Congressional testimonies. In addition, should this group of players enjoy widespread support among MBLPA members, they could even threaten to demand new union leadership, with the "nuclear option" -- decertification -- always on the table. Decertification refers to when union members vote to revoke the certification of the union, meaning the union no longer represents the players in employment relations, including collective bargaining. Decertification is extremely rare, however, particularly in the sports context, with the National Football League Players' Association decertification in 1987 a notable exception. It seems highly unlikely that the MLBPA would implode over the 103 names, though it remains at least theoretically possible.

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