Mickey Mantle's Liver

Baseball Death Watch, Day One: The Day After

exhale.......

Here it is, the day after the release of the Mitchell Report, and wouldn't you know it, the world is still turning, the sun is still shining (except here in Oregon) and baseball is still America's Pastime (although football may have something to say about that).

Those of you who follow the Liver know that I started the Liver because of my outright disgust with the use of performance enhancing drugs by Major League Baseball Players, and in particular, Barroid and McSteroid.  The flagrant use of these substances by Barroid and McSteroid, and others, in my opinion, is and was nothing short of a slap in the face to the rest of baseball, the players and most importantly from my perspective, the fans.

Now we have the Mitchell Report.  I have read the report cover-to-cover now -- twice (my wife says I have no life) -- and I have come to the conclusion that the Report isn't exactly the smoking gun so many of us hoped that it would be.  Sure, the Mitchell Report names names.  But many of the big names in the Report are players that the public already had a good idea about.  And the other players mentioned in the Report are marginally talented big leaguers who used performance enhancing drugs just to stay in the majors.

Like I said in this earlier article posted here on the Liver, most (if not all) of the attention on the Mitchell Report is being focused on the 86 or so names found in the Report.  Even I posted the names I found in the Report immediately after the Report was made public.  But the Report itself is short on real substance, and long on innuendo and unsubstantiated conclusions, which is unfortunate, because the Report had the potential to be so much more.

Aside from the players names found in the Mitchell Report, the most curious aspect of the Report is the obvious disdain Senator Mitchell holds for the Players Association.  Don't get me wrong, the MLBPA certainly deserves much of the credit for baseball's current drug problem, but the Report seems to shift much of the blame onto the MLBPA, I think somewhat unfairly.

Why?  Well, the Report points out that players (and therefore MLBPA) made a considerable amount of money during the offensive explosion that has become known as "the Steroids Era".  The Report infers that the MLBPA resisted serious efforts by Major League Baseball to institute comprehensive drug testing -- testing of all illegal drugs -- for reasons such as "due process" and "right to privacy" concerns.  Apparently Major League Baseball bought into these concerns and never pushed harder until the Congress held Major League Baseball's feet to the fire.

But to shift all the blame for a lax drug screening program on the players' union is revisionist in its own right.  The Mitchell Report includes a lengthy discussion (over 20 pages) of the history of drug testing in baseball.  The Report explains that drug testing was a topic of bargaining in 1994, and the two sides (the MLBPA and MLB) were in serious discussions about a comprehensive drug screening system.

Of course, there were other issues the two sides could not agree on in 1994, and the infamous strike occurred in 1994, canceling the rest of the 1994 season, the World Series, and part of the 1995 season.  Only after MLB and the players were losing money did the two sides reach a tentative agreement in order to start the 1995 season.  Drug testing and/or screening was not a part of that agreement.

The Report tries to place the blame for not having any drug screening provisions in the 1995 agreement upon the players and MLBPA.  But let's be serious here, the owners were losing money as well.  Baseball was on life-support, and something needed to be done in order to revive the sport.  Steroids meant the likelihood of more home runs, more scoring and more excitement - which equates to more money in the owners pockets.  The owners knew this in 1995, which is why drug screening fell off the bargaining table.

The point is this:  the Mitchell Report is lacking in any serious review of Major League Baseball and criticism of the baseball clubs.  While there is harsh language in the Report criticizing Major League Baseball as a whole, that criticism is often tempered by the Report by also pointing out the players unions shortcomings on the issue of performance enhancing drugs.

I agree with Commissioner Selig on this point:  the Mitchell Report is "a call to action".  But not a call to action by MLB or the MLBPA.  It is a call to action to the Congress, to institute its own investigation, where players and baseball officials can be subject to subpoena and compelled to testify truthfully about the problem of drugs in baseball.  That is the only way the public - and millions of baseball fans everywhere -- will get a full and fair report on the prevalence of steroids, HGH, amphetamines and other drugs in America's Pastime.

Anatomy of a Hold Out

Now that NFL training camps are opening, and veterans are starting to report to camp, we   are also learning about veterans who have not reported to camp because they are "holding out".  Even the most casual fans know that a hold out is when a player, usually one of the really good players on the team, doesn't show up to camp and refuses to play for his team until he gets more money.

You may wonder: "How can a player do that, didn't he sign a contract?  Isn't he breaking that contract?  Why doesn't the team sue the player?"

Those are all good questions, because for us ordinary joes if we break a contract we can usually expect to see a process server handing us a summons because we are getting sued.  So why don't any of these teams sue the players into honoring their contracts?

There are two answers to that question: one legal and one political.

Here is the legal answer.  You see, contracts that athletes sign are characterized as "personal services contracts".  That is, a person is offering his special services in return for equal consideration.  Given the nature of the contract, and the special relationship between the player and the team, in order for the team to "win the case" the team would have to get a court to order the player to go out on the court or field and play.

Think about that for a second.  You are the GM of a team, and you get an order from a court ordering the player out on the field of play.  Now, you have a disgruntled player (to say the least) out on the field.  Chances are he isn't going to give his 100%.  And a court cannot force the player to give 100%.

As a result, courts will not issue such an order against a player who is holding out.  The only relief that a team may have is some form of specified money damages.  Usually those specific money damages are spelled out in the player's contract.

So, a team's hands are tied, practically and legally speaking, if a player decides to hold out.  The most the team could hope to recover is money damages, but the team cannot force the player to get into camp.

What about the political answer?  Well, it is pretty simple.  Think about it for a moment.  If you sued a player for holding out, what are the chances that you are going to be able to get other players to come and play for your team?  Not very good.

So, when a player holds out, the only practical (and legal) recourse for a team is to either (a) wait out the player and hopes he eventually shows up for camp once he realizes he isn't going to get paid, or (b) re-negotiate the players' contract.  Each option has its benefits and drawbacks.  Option (a) saves the team money, but will scare off players from signing with your team.  Option (b) will cost your team more money (which could be a problem if you have salary cap problems) but will generate goodwill with other players who may want to come sign with your team.

No Credible Evidence.........

Because I am a lawyer in my real life, I try to stay away from commenting on the legal aspects of contract disputes, holdouts, criminal complaints and the like simply because that is what I do for a living, I write on this Blog for fun.

But a story crossed the wire yesterday that bothers me so much that I feel I should broach the wall of separation I have built between my professional life and my Blogging life.  Yesterday, Michael Nifong, the former district attorney who prosecuted the Duke Lacrosse team admitted that he had "no credible evidence" to indict the three Duke lacrosse players.

Think about that for a moment.  He admitted that he had NO CREDIBLE EVIDENCE.  And yet Nifong still used the awesome power of his office to bring felony criminal indictments against these three men.

First, a lesson on evidence in the practice of law.  You see, everything in the world around  us is "evidence", in the abstract, when a crime is committed.  The question is whether the  evidence is relevant.  Let me give you an example.  In the Duke case, I imagine the house where the party was a  rental house.  Ok, house is that fact relevant to the case?  It isn't.  The only evidence that a court will consider is evidence that is relevant to the charges being levied against the defendant.

So let's assume another fact - the stripper (the alleged victim) says that her attacker had brown hair and blue eyes, even though the attacker allegedly attacked the stripper in the dark and from behind.  The stripper's statements are certainly relevant to the charges, but are they credible?  That is, can you trust her statements, and what are the chances that her statements are wrong.  A statement that is wrong is simply not credible.

When Nifong admits that he had no credible evidence, he is saying that he had absolutely no evidence that anyone would believe!  None whatsoever!  Put another way, he may have had evidence that the stripper was at the house, and maybe even evidence that puts the stripper in the room with one or more of the accused lacrosse players, but that is it.  Nifong admits he had no evidence that anyone would believe.

And yet he still went after these three men.

That is a scary thought.  These three men were facing the possibility of losing their freedom.  They (and their families) had to hire expensive attorneys, and endure months and months of public ridicule, scorn, and hatred from bigoted professors at Duke University.   Not to mention the intense media scrutiny these men and their families were under, even though these lacrosse players never did anything wrong.

And Nifong knew they didn't do anything wrong, and he let it go anyway.

What kind of evil person subjects a fellow human being to that kind of terror, stress and humiliation?  Worse yet, as a lawyer, I cannot imagine for the life of me how a person who is supposedly committed to the law could wreck such havoc on the justice system.  For years to come, every indictment handed down by a DA in Durham County is going to be scrutinized to make sure others are not wrongfully accused.

Apparently the most time Nifong can get in jail is 30 days for contempt of court.  I hope he gets all 30 days.  He deserves many, many more.