Commentary

Legal challenges to Mitchell report would prove troublesome

Updated: December 13, 2007, 9:38 PM ET
By Lester Munson | ESPN.com

Former Sen. George Mitchell released his report Thursday on the use of performance-enhancing drugs in baseball. The release of Mitchell's report was followed by news conferences and statements by MLB Commissioner Bud Selig and MLB Players Association executive director Donald Fehr. Mitchell's report raises a number of questions on legal issues. Here are some of the questions and their answers:

Although Mitchell names players who allegedly used performance-enhancing drugs, he suggests that these players should not be fined or suspended. He says it is better to focus on the future than to waste effort on "contentious disciplinary proceedings." Are there legal reasons for Mitchell's recommendation?

Yes. There are two powerful legal reasons for the recommendation, reasons that might be the real rationale for his suggestion. First, if Selig tried to suspend players named in Mitchell's report, Selig would face instant demands for arbitration from the players union. MLB officials would face serious problems resulting from the rapidly evolving policy on steroids and HGH, and would have serious legal problems for suspending a player for something that was not yet a violation of the rules. It would be difficult for MLB to navigate the thicket of rules changes and produce a winnable case on any discipline. Second, and more importantly, Mitchell's recommendation will avoid any legal test of his evidence and of his conclusion that a particular player used these drugs. Without suspensions or fines, the union would be unable to attack Mitchell's evidence, cross-examine his witnesses and test his conclusions. Without arbitration over a suspension, Mitchell's allegations remain in force and in effect without anyone's ever testing them.

The recommendation against suspensions or fines insulates the commissioner from embarrassing difficulties in arbitrations with the union and avoids what could be an embarrassing test of the sufficiency and legality of Mitchell's evidence.

Mitchell places heavy reliance upon the word of Kirk Radomski, a former New York Mets clubhouse attendant. What is the legal value of Radomski's evidence?

Radomski offered testimony and information only after he was charged with serious crimes. He is offering names and evidence in an obvious attempt for leniency and a shorter jail sentence. Mitchell says he tested Radomski's veracity and even interviewed him four times personally. Mitchell asserts that he found corroborating evidence. The information that supports Radomski's word includes checks from players, mail receipts, phone records and e-mails. Mitchell, a former federal prosecutor, and his staff concluded that the documentary information that supported Radomski was sufficient. Mitchell might be right in his assessment, but we will know more about Radomski's veracity and reliability when and if a player challenges Mitchell's conclusion in a lawsuit.

What if Mitchell is relying on a single interview or a single statement from someone without corroboration?

Allegations made on the unconfirmed word of a trainer, a team official or anyone else are the flimsiest of allegations. A player named on this basis could easily decide to challenge the allegation in a lawsuit. Union officials will examine these single-source, unconfirmed allegations very carefully and might use one or two as a challenge to the Mitchell report.

What is the effect of Mitchell's report on the Barry Bonds perjury prosecution?

It has no serious effect. The publicity and the furor pose difficulties in selecting a jury in San Francisco. Because of the now pervasive notion of a steroid era in baseball, many potential jurors might be biased against Bonds. But in a criminal trial involving a celebrity, impartial jurors are found. It is always surprising to learn how many citizens have little or no knowledge about what is viewed as a major public issue.

Can players such as Roger Clemens and Miguel Tejada sue Mitchell and MLB because of what was said about them in the Mitchell report?

Yes. Anyone can file a lawsuit any time they want. But any player who files a libel lawsuit over the allegations made in the report would be in for a host of difficulties. He would have to show that Mitchell was wrong and that he formed his conclusion because of malice toward the player. It is a burden of proof that is always difficult, and can be impossible. If Clemens, for example, were to file suit, he would have to be able to destroy the credibility of his own former trainer, Brian McNamee. Clemens would have to persuade a jury that McNamee lied about him in an effort to avoid a jail sentence. MLB would fight vigorously against any challenges to the Mitchell conclusions. Any player who wants to sue faces a major litigation war.

Mitchell frequently relied on people who told him what other people said -- for example, someone told Mitchell that someone else knew something about steroids. Is that hearsay? Is it legal?

Yes, it is hearsay. And, yes, it can be legal. Hearsay evidence is used in United States courtrooms thousands of times each day. Although there is a rule that prohibits the use of hearsay evidence, there are many exceptions to the rule. Law students spend weeks learning these exceptions. The rules are designed to prohibit unreliable evidence. The rules are not perfect, but they're the best we have. If Bonds told someone he used steroids, and then that person told Mitchell about it, then, yes, Mitchell could use the evidence. Bonds' statement is an exception to the hearsay rule. The legal term for it is "admission against interest," a statement that is likely true because it is contrary to the interest of the person making the statement. Someone might question the weight and value of such evidence, but it is evidence that can be used.

If Selig punishes players named in Mitchell's report, will that action lead to criminal prosecutions of the players?

Probably not. As Mitchell explained in his press conference, most law enforcement agencies, whether state or federal, are not always focused on just prosecuting the user of drugs. They want to devote resources to prosecuting sellers or wholesale distributors of drugs. There is, as Mitchell said, no record anywhere of any player in any sport being prosecuted for use of performance-enhancing drugs.

Mitchell said the owners and players were slow to diagnose and respond to the use of performance-enhancing drugs. Do their failures result in legal limitations on what they can do now?

No. There is no doubt that the owners and players were slow to respond to the scandal. But their late reaction does not change the legal landscape. Both are free to do whatever the law allows to protect their interests. If the union wants to legally challenge the findings in Mitchell's report, it is free to do so. Some would argue that the owners and the union are somehow "estopped" from taking actions. "Estopped," in this context, would mean that the law would prevent them from going to court with issues. No one is estopped. There is no estoppel. They can do what they want despite their tardy recognition of the problem.

Selig says he will decide player punishments on a case-by-case basis. Is this fair to players? How could he discipline one player and not another? What standard would he use?

Using the evidence described in detail in the pages of the Mitchell report, Selig could decide things on a case-by-case basis. The evidence on each player varies both in quality and quantity. If the evidence consists only of a statement from one witness of doubtful veracity, Selig could rule that there will be no punishment. If the evidence is powerful and corroborated by phone records, checks, e-mails and other documents, he could rule that the player would be disciplined. He would decide on the evidence and not on the importance of the player.

Lester Munson, a Chicago lawyer and journalist who has been reporting on investigative and legal issues in the sports industry for 18 years, is a senior writer for ESPN.com.