A-Rod, Part III: What About 60 Minutes?
If you’re following our coverage of the Alex Rodriguez story at all (See our Part 1, a general primer; and Part 2 on the specifics of the 162-game suspension), you probably watched last night’s 60 Minutes, which contained interviews with Tony Bosch of Biogenesis, who claims that he personally administered banned Performance Enhancing Substances to Alex Rodriguez; MLB executive Rob Manfred; and one of Alex Rodriguez’s attorneys, Joseph Tacopina, Esq.
Concurrent with the airing of the program, sports journalists began reporting that the Major League Baseball Players Association (“MLBPA,” the players’ union) was “furious” at MLB’s participation in the TV program. The MLBPA subsequently issued the following statement:
MLB's post-decision rush to the media is inconsistent with our collectively-bargained arbitration process, in general, as well as the confidentiality and credibility of the Joint Drug Agreement, in particular. After learning of tonight's "60 Minutes" segment, Players have expressed anger over, among other things, MLB's inability to let the result of yesterday's decision speak for itself. As a result, the Players Association is considering all legal options available to remedy any breaches committed by MLB.
Let’s evaluate those two arguments.
First, the MLBPA claims that MLB’s “post-decision rush to the media is inconsistent with our collectively-bargained arbitration process.” Is that true, and if so, what remedies does it provide for the MLBPA?
It’s been taken as an article of faith that the arbitration process with respect to resolving Grievances is confidential, and indeed, the Rodriguez proceedings have been kept confidential so far and not (as far as I know) released to any other party. But as I look through the Basic Agreement and Appendix A thereto, which sets forth the “Rules of Procedure” governing grievance hearings before the arbitration panel, I don’t find any blanket statements that require confidentiality in all Grievance hearings. Instead, what I find is a general framework in which arbitration hearings are private, see Art. VI.E.(7), id. at 19 (salary arbitration hearings are private), as well as a provision (Rule 2) whereby persons having a direct interest in the arbitration process are permitted to attend hearings, and the Arbitration Panel is given the discretion to “determine the propriety of the attendance of any other persons.” Apx. A, Rule 2, id. at 295. And – most relevantly to Alex Rodriguez’s case – Section 6.A.3 of the Joint Drug Agreement specifies that “[d]ecisions of the Arbitration Panel, and the record of proceedings before the Panel in matters arising under the Program, shall not be disclosed by the Parties, other than to their respective constituents (and with instructions that prohibit further disclosure), unless the Parties agree or the Panel directs otherwise.” JDA at 21.
To be honest, this is not the blanket declaration of confidentiality that lawyers often find in contracts like this. I found it somewhat surprising that neither Art. XI (governing Grievances) nor Appendix A (setting forth the Rules of Procedure) contain a statement regarding privacy and confidentiality like that contained in Art. VI.E.(7). There is nothing, for example, that specifically prohibits any party to a Grievance from releasing documents produced in discovery, which is a legal provision one would ordinarily expect in a document like this. Nor is there a procedure regarding the labeling of such documents as “Confidential,” the retention or destruction of such documents upon conclusion of an arbitration hearing, or any of the sorts of provisions that one typically finds in a document in which confidentiality is the paramount concern of the parties thereto. The Basic Agreement does contain a “Confidentiality Agreement” (Attachment 14) – but that explicitly applies only to information disclosed during the collective bargaining process itself related to revenue and expenses associated with MLB. Id. at 182.
In sum, MLB has a long-standing practice and environment in which Grievance hearings are kept confidential, supported by some provisions within the Basic Agreement and a more specific requirement under the JDA that applies only to the “decision” and the “record of proceedings” before the arbitrator. Unless the parties have signed additional agreements that have not been disclosed to the public, this doesn’t seem to establish the kind of policy upon which MLBPA could plausibly argue that MLB’s conduct in participating in the 60 Minutes program post-decision constituted a breach of contract.
Second, the MLBPA asserts that MLB’s participation in the 60 Minutes program “undermines the confidentiality and credibility of the Joint Drug Agreement in particular.”
The JDA contains two sections related to confidentiality: Sec. 5 (“Confidentiality”) and Sec. 6 (“Disclosure of Player Information”). Sec. 5 prohibits all parties to the JDA (except the Player himself) from “publicly disclosing information about an individual Player's test results or testing history, Initial Evaluation, diagnosis, Treatment Program prognosis or compliance with a Treatment Program.” JDA § 5.A, id. at 19. Although the transcript for last night’s episode of 60 Minutes is not yet available – the video is here – my recollection is that neither Rob Manfred nor Bud Selig discussed any information regarding Alex Rodriguez’s test results. The only mention I recall during the program of test results was by A-Rod’s lawer, Joseph Tacopina, who insisted that Rodriguez had never failed a test. (That claim also does not violate Sec. 5, because the Player is free to disclose his own test result).
Section 6.A.2 contains the language upon which the MLBPA is most likely to rely. In relevant part, it states:
Any and all information relating to a Player’s involvement in the Program, including, but not limited to, the fact or the results of any Prohibited Substance testing to which the Player may be subject, and any discipline imposed upon the Player by the Commissioner’s Office shall remain strictly confidential.
JDA § 6.A.2, at 21. Again, we will have to compare the things said by MLB representatives against this clause, but my recollection is that the most inflammatory statements made by MLB were Manfred’s assertion that A-Rod had uniquely impeded MLB’s investigation into Biogenesis. MLB can plausibly argue that it was not disclosing information about A-Rod’s “involvement in the Program” when it issued those criticisms. The phrase “involvement in the Program” is not defined in the JDA.
Moreover, Section 6.A.4 explicitly permits any party to “disclose publicly details of a Player’s test results, testing history, and/or the Player’s challenge to discipline … to the extent necessary to respond to any inaccurate or misleading claims by that Player that could undermine the integrity and/or credibility of the Program.” Id. MLB will almost certainly argue that, to the extent that it disclosed any information pursuant to § 6.A of the JDA, it was doing so in response to claims being made by Alex Rodriguez that could undermine the integrity and/or credibility of the Program. Given the wide-ranging language of this exception coupled with the additional likely responses outlined above, I suspect that MLBPA will ultimately be unlikely to file a lawsuit or otherwise prevail on allegations that MLB breached the JDA.
Ultimately, what really appears to be bothering the MLBPA is that representatives of Major League Baseball appeared on a program with Tony Bosch, who claimed repeatedly and in vivid detail that it is trivially easy to evade MLB’s testing for performance enhancing substances. I think this makes perfect sense from an emotional standpoint. Unfortunately, as far as I can tell, this sort of conduct is not prohibited by the JDA. Bosch, of course, is not a party to the agreement and MLB is not responsible for his statements. More critically, neither the JDA nor the Basic Agreement (nor any other document I can find) contain a general non-disparagement clause that would prohibit the parties from speaking or otherwise lending their appearance and authority to individuals or situations that would tend to undermine public confidence and support in MLB’s drug testing program. Nor does the JDA contain a general clause requiring the parties thereto to exercise “good faith” or “all reasonable efforts” to promote the program – which might also cast doubt on the reasonableness and/or legality of MLB representatives appearing in a TV show alongside Tony Bosch as he bashes the testing process.
Again, I find these omission somewhat curious; it is typical for lawyers to include non-disparagement clauses in contracts where the parties don’t want anyone bad-mouthing anyone else, and similarly typical for lawyers to include “best efforts” clauses within contracts that require the parties to work cooperatively in the future.
In sum: MLBPA is understandably angry over last night’s episode of 60 Minutes, but – subject to the caveats described above – is unlikely to prevail in a claim that MLB violated either the Basic Agreement or the Joint Drug Agreement by participating in the show.