Commentary

MLBPA's drug-testing 'win' is flimsy

The Court of Appeals ruled for the union, but the case shouldn't have happened

Originally Published: December 29, 2010
By Lester Munson | ESPN.com

They're using the phrase "significant victory" at the offices of the Major League Baseball Players Association (MLBPA) to describe the latest court decision in the complex litigation that resulted from what was supposed to be confidential testing for steroids in the 2003 season.

[+] EnlargeDon Fehr
Mario Tama/Getty ImagesDon Fehr had an option other than negotiation when the government went after those test results. He didn't take it.

They're overstating their case.

The decision in the 9th Circuit U.S. Court of Appeals -- it decreed in September that government agents violated the rules governing searches and seizures when it took the test results and ordered the return of everything seized in the raids -- does, in fact, qualify as a "significant" chapter in the sad history of baseball's Steroid Era. But it is difficult to find a place for it in the taxonomy of "victory." It's more accurate to classify the episode as a blunder or something rarely seen in the union's remarkable history.

In their attempts to spin and in their press release, the union leaders want us to forget that the mere existence of this litigation puts them in the category of loser. The union initiated this litigation to salvage a situation that it had permitted to careen out of control.

Responding to pressures from the U.S. Congress and the BALCO investigation to do something about the use of performance enhancing drugs, MLB owners and players agreed to a testing survey for the 2003 season. In return for the players' agreement to submit to testing for the first time, ownership promised there would be neither publication of positive tests nor punishment of the players.

But despite mutual assurances of confidentiality by owners and players, the government agents in the BALCO investigation, led by the resourceful and relentless Jeff Novitzky, learned of at least 10 positive tests for players involved with BALCO and demanded the records of the labs that collected and analyzed the 2003 samples.

When the union's lead lawyers, Donald Fehr and Gene Orza, realized that Novitzky was on their trail soon after the end of the 2003 season, there was one thing, and only one thing, for them to do. They had the right to do it under the deal with the owners, and they had the obligation to do it for their players. That one thing was to destroy all the evidence of the tests -- the urine samples, the test results and all the supporting documents and computer files.

In the patois of the legal profession, the immediate destruction of all testing evidence is known as "self-help." Instead of relying on the vagaries of the court system, one takes the action that makes any attempt at litigation impossible.

It isn't a difficult concept. Any reader of Elmore Leonard's crime novels understands it perfectly: Find a way to fix it yourself. Stay away from lawyers, judges and courthouses.

[+] EnlargeJeff Novitzky
AP Photo/Susan WalshThe Court of Appeals issued a stern rebuke for the manner in which Jeff Novitzky and the government obtained the positive test results.

But as brilliant and successful as Fehr and Orza were in their years at the helm of the union, this one got by them -- a grounder through the legs, a called third strike.

Instead of destroying the evidence and eliminating any problems, they found themselves negotiating with Novitzky and his federal prosecutors, arguing about the evidence. It multiplied their problems.

They began talking in late 2003, according to a court opinion issued four years later, and they kept talking into April of 2004. What were they talking about? Novitzky wanted the test results; the union could not possibly agree to it. The players had been promised confidentiality. How long can two sides discuss an obviously irreconcilable impasse?

Fehr and Orza reached a point in the discussions that they began to consider a "motion to quash" the subpoena that Novitzky obtained for the test results. Which sounds more like a successful maneuver -- a motion to quash or sudden and total destruction?

The union went with the motion to quash, and Novitzky responded on April 8, 2004, with lightning raids on the labs, grabbing not only the 10 tests for the players involved in BALCO but also at least 90 other positive MLB tests and test results from many other athletes.

Instead of a pilot-testing program under the control of the owners and the players, the 2003 testing program was the centerpiece of a litigation free-for-all that ultimately involved 17 federal judges, hundreds of pages of judicial decrees and thousands of pages of legal documents.

Once the tests were in the control of Novitzky and his team of agents, the inevitable happened. Positive test results on Alex Rodriguez, Barry Bonds, Sammy Sosa, David Ortiz and Manny Ramirez were leaked to the New York Times and Sports Illustrated. Of that group, only Bonds has been linked to the BALCO investigation.

The union's motion to quash metastasized into three lawsuits filed by the union in San Francisco, Los Angeles and Las Vegas. The union's attorneys put together impressive arguments about search and seizure, probable cause and various other legal doctrines that are more typically applied in the prosecution of drug dealers and other criminals.

[+] EnlargeMichael Weiner
AP Photo/Richard DrewMichzel Weiner, now the MLBPA executive director, is claiming a win regardless of the union's mistake.

When the 90-day period for the federal government to ask the Supreme Court to review the 9th Circuit Court's September decision expired this month and it finally came to an end, the current leader of the union, Michael Weiner, said in a press release that it is a "significant victory." But Wiener's assertion that the union and its strategy are somehow vindicated falls into a category that author and journalist Christopher Hitchens has labeled "dexterous casuistry," a category he uses when he catches someone like Henry Kissinger revising history and making a loss into a win.

If the union scored a victory, it was an expensive victory. Aside from enormous legal fees, the legacies of union members Rodriguez, Sosa, Ortiz and Ramirez are forever tarnished. And none of it would have happened if Fehr and Orza had simply destroyed the samples, the tests and the results.

There was a time when the people at the MLBPA were winning victories that did not require claims and explanations in press releases, much less dexterous casuistry. These victories came again and again at the expense of team owners, a group that must have watched with some amusement as the union struggled through six years of litigation over the 2003 test results.

Under the leadership of the immortal Marvin Miller, the union won a string of breathtaking triumphs -- an impartial arbitration of player grievances, the elimination of the reserve clause, the establishment of free agency, the installation of high-low salary arbitration and a ban on collusion.

No one had to spin these victories. Players moved from a form of indentured servitude to freedom and wealth that few could have imagined. Miller's win streak transformed the game and, as owners found themselves competing for players, established the basis for the growth and prosperity that baseball has enjoyed ever since.

If there is any doubt that Miller pitched a near-perfect game for the union during his tenure, consider the collusion clause. Unlike any other group of American business owners, the Lords of Baseball were legally entitled to indulge in collusion. A series of decisions by the U.S. Supreme Court bestowed on them immunity from the nation's antitrust laws, allowing them jointly to control everything from ticket prices to the color of a player's skin.

[+] EnlargeSteroids
Al Bello/Getty ImagesIf nothing else, a quicker resolution to the 2003 testing issue might have ameliorated some of the bad steroids publicity.

Collusion was something the owners did well. They did it particularly well regarding salaries. For years, there was an unwritten (and collusive) agreement among owners that no player, even great stars such as Ted Williams, Joe DiMaggio and Stan Musial, would be paid more than $100,000 a season. But in the negotiations that led to a historic collective bargaining agreement in 1976, Miller somehow convinced the owners to give up the right to collusion that had been sanctified by the courts and gave them significant leverage over the players.

Owners feared teammates combining into small negotiating units as they bargained their individual contracts. Don Drysdale and Sandy Koufax, two of the greatest pitchers of their era or any other era, told the Dodgers several years earlier that the team must bargain with them as a unit, giving the pitchers additional leverage.

When the owners told Miller they wanted an agreement that would prevent players from collusive combinations in negotiations for their individual contracts, Miller quickly replied that the players would agree to a ban on collusion if the owners would promise never to collude on salaries.

The language of the resulting collusion clause was simple and direct: "Clubs shall not act in concert with other clubs."

The measure of Miller's collusion clause triumph became obvious when, under former commissioner Peter Ueberroth, the owners in 1985 began a collusion conspiracy that killed the market for free agents. Miller and Fehr used the collusion clause to defeat the owners in three arbitrations and collected a settlement for the players of $280 million, a humiliating outcome for the owners.

The players' victory in the collusion litigation & that was a "significant victory." If the outcome of the 2003 drug testing litigation is a victory, it is a technical victory only. In this case, it's as if a union that has achieved win after win, year after year, had to convince itself that it won first and then find a way to explain the so-called victory to the rest of us.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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