Avoiding Contractual Liability to Baseball Players Who Have Used Performance Enhancing Drugs: Can We Knock It out of the Park?

By Gottlieb, Bryan | Albany Law Review, Winter 2013 | Go to article overview

Avoiding Contractual Liability to Baseball Players Who Have Used Performance Enhancing Drugs: Can We Knock It out of the Park?


Gottlieb, Bryan, Albany Law Review


INTRODUCTION

In 2007, Alex Rodriguez signed a $275 million, ten-year contract with the New York Yankees, setting the record at the time for largest sports contract in history. (1) Since then, he has faced many allegations of performance enhancing drug ("PED") use, one of which he confirmed through a public admission. (2) Regardless of these allegations and admissions, Rodriguez continues to reap the benefits of his record deal despite the fact that his performance has been rapidly declining in recent years. (3) When Rodriguez initially received his massive payday, he was one of best players in the game, having previously won three American League Most Valuable Player awards. (4) By most accounts, his PED usage contributed greatly to the many successes early on in his career.

Rodriguez is not alone in his transgressions. Baseball's drug problem came into the light in the now infamous Mitchell Report, (5) in which ex-senator and prosecutor George Mitchell was asked by Baseball Commissioner Bud Selig to examine the history and prevalence of PED use in the league. (6) This independent report drew back the curtain on the drug culture in Major League Baseball ("MLB"), and quantified steroid use in baseball as widespread. (7)

Baseball is far from the only professional sport that has had to deal with the PED issue. (8) Seven-time Tour de France winner Lance Armstrong now faces a lifetime-ban from cycling handed down by the United States Anti-Doping Agency, and has been stripped of all seven of his victories. (9) He has recently drawn the ire of no less than the United States Department of Justice, which has expressed a desire to see Armstrong prosecuted for his lies about PED usage. (10) In the National Football League ("NFL"), All-Pro linebackers Shawne Merriman and Brian Cushing have both faced suspensions for PED usage. (11) The National Basketball Association's ("NBA") Rashard Lewis demonstrated that PEDs had a place in basketball as well, even though basketball is a game where brute strength is not often thought of as a required attribute. (12)

As PEDs continue to make their presence felt throughout professional sports, owners and sponsors find themselves paying out large sums of money to athletes who have used the drugs to bolster their performances at the expense of their sport's reputation. (13) In addition, after an athlete discontinues use of performance enhancers, sharp statistical declines appear to be the norm. (14) Do teams have any hope of avoiding contractual liability to these "lemon" players, or are they stuck footing the bill?

This paper seeks to identify the availability and relative strengths and weaknesses of various legal safeguards that MLB teams and sponsors of players have at their disposal for avoiding contractual liability to athletes who have been discovered to have used PEDs. Part I will seek to answer the question of whether MLB is actually attempting to remove steroids from its game or is simply "going through the motions" to appease disgruntled onlookers. Part II will discuss a longstanding bastion of contract law, the morals clause, and its ineffectiveness under the governance of MLB's collective bargaining agreement ("CBA"). Part III will discuss the assertion of fraudulent misrepresentation to challenge the validity of the formation of MLB employment contracts. Part IV will discuss why prompt rescission of the employment contracts upon discovery of previously undetected PED usage is critical to avoid a later argument of ratification as a counter-defense to fraudulent misrepresentation. Part V will conclude why MLB teams should shift away from current drug policy protections and start voiding contracts on the ground of misrepresentation if they are truly desirous of cultivating a PED-free game environment.

I. CIRCLING THE WAGONS: DENYING THAT WE HAVE A PROBLEM

In a discussion of PED-related contract avoidance, one question that is naturally raised is whether MLB actually cares about removing PEDs from the game. …

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