Law Students

Will Someone Please Sue Major League Baseball?. Pretty Please?

By Casebook Sherpa

I’d love to see a big-time lawsuit over steroids in baseball. I don’t know why. I’m not really a big fan of lawsuits generally. But I think it would make for great theater and there has to be a way to get at the owners who, while not injecting B12 into Clemens’s hindquarters, encouraged d-bags like McNamee to do it for them.

Rick Reilly suggests a way to make my dreams come true. In this interesting column at espn.com, he argues that several minor league prospects - including, most prominently, two players on the U.S. Olympic baseball team - have gotten a raw deal because of steroids and Major League Baseball’s (at best) lukewarm opposition to - if not, tacit endorsement of - their use by the league’s stars.

Mitch Jones is the biggest fish in the puddle, the fastest snail on the beach, the best understudy on Broadway. No active player has hit more home runs in the minor leagues?nearly 200 dingers?without getting a shot at the bigs.

Nine years now, and not even an at-bat. These September call-ups could be his last chance. He’s 30, and 30-year-olds get called up every other pyramid. Why didn’t he make it? Because he was dumb enough to start his career at the exact wrong time in baseball history: during the Pharmacy Era, when old guys got young with syringes and injured guys got well with shipments from Mexico.

He goes to say that because older sluggers took steroids and Major League Baseball turned a blind eye to it (well actually said it was bad, but tacitly endorsed it so that the league could get back on its feet money- and attendance-wise). As a result, these minor league players who otherwise would have made it to “The Show” may have a cause to file a class action for restraint of trade against Major League Baseball:

You think the steroids issue is dead, but it isn’t. These guys live with the fallout every day. Their dreams died in big league clubhouse johns. I’m telling you: lawsuit. Stanford labor law professor emeritus William Gould IV says the idea “is very interesting” but that they’d need to prove three things to win:

1) A correlation between steroid use and better performance. (Please.)

2) That baseball turned a blind eye to steroid use. (Exhibit A: baseball¹s own Mitchell Report. It blames Bud Selig and players association COO Gene Orza for allowing steroids to spread like crabgrass. Mitchell said there was a “code of silence” in baseball. You think? Oriole David Segui told his GM that he wanted to go to Florida to pick up juice, and the GM never reported it. A Twins visiting clubhouse attendant found a used syringe and told manager Tom Kelly, who never reported it. The thing has more conspiracies than an Oliver Stone movie.)

3) “Nonstatutory labor exemption considerations,” Gould IV says. That’s just so complicated it makes our head ache, but a good shark would gobble it right up.

This is like classic law school exam stuff. So can we really develop a theory of the case for these players?

Using the three elements Reilly got from Gould we unpack a theory by making several assumptions (that hopefully could ultimately be proven) and argue that…

There are actual damages here. Those sluggers that took steroids (assumption here, of course) extended their careers several years beyond what would otherwise have been expected from these players. While these drugs did not necessarily lead to better at-bats, they improved the athletes’ ability to build the physical strength and recuperative ability to compete at a level once thought possible for players several years their junior. Consequently, this created fewer vacancies in certain clubs - perhaps most clubs - and prevented younger players from being called up to the Major Leagues.

Additionally, I would seek to show (would have to show) that the members of the class are among the very best prospects in baseball. Over the years, players with worse numbers than they have produced have been promoted regularly. However, starting in the 90’s players of this caliber languished in the minors for no other reason but that the careers of old players were kept alive by steroids and the complicity of Major League Baseball.

Not only does the Mitchell Report confirm that Major League Baseball knew this was happening, but ignored it and, in some cases, covered it up from fans and investigators. During this period, MLB was in trouble. A labor strike had turned fans off to the game and attendance was dwindling. Rather than rely on the normal course of finding new talent (i.e. older players retiring or being traded and younger players promoted from the minor leagues or drafted), the league decided to allow this illilcit drug use to prolong the careers of players it knew would maxmize the league’s, and the owners’, profits.

The strategy paid off. However, people around baseball surely knew that keeping these players around longer would hinder, and perhaps kill, the ability of minor league prospects to make it to the major leagues. In legal parlance, league officials and team owners were substantially certain that their likely to bring about an interference in the prospects of the, well, prospects to enter the major leagues. (See, e.g., Restatement of Torts § 8A, 766B.)

(this is where my argument needs some help…)

Despite all this, baseball has enjoyed certain exemptions from the Sherman Antitrust Act that allow its agreements with the players union to excape antitrust scrutiny, in part, because agreements between players and owners are collectively bargained (discussion of this nonstatutory labor exemption). This exemption is what Congress threatens to revoke whenever controversies about MLB erupt. However, in some cases a player’s contract contains a restraint of trade clause - or noncompete, for the rest of us. Often these are not subject to collective bargaining and not exempt from antitrust scrutiny. Therefore if there is a breach the dispute is settled under contract or tort principles, rather than the CBA. Presumably because we’re out from under the CBA here an individual player could sue the league or owners or, more likely, a class of players could make the case that the league conspired?in the sense of being substantially certain of the results of their actions?to restrain their ability to trade their skills for lots of money.

Full post as published by Fight The Hypo on August 28, 2008 (boomark / email).