In his Monday morning column, ESPN’s Buster Olney presented the possibility that MLB teams could look to use the traditional legal system — rather than processes under the CBA — to recoup salary paid (or owed to) players that are suspended for their involvement in the Biogenesis scandal. With the trade deadline over and Biogenesis squarely atop the agenda, it is worth taking a closer look at this suggestion.
Should any teams wish to pursue such an option, the first step would likely be to engage legal counsel for an evaluation of the possible claims that could be made, the risks and benefits involved, and a breakdown of how a hypothetical lawsuit might play out. I will sketch out some of these issues in three segments over the next few days. Click below to read the first part, an overview of the general considerations facing a team and its advisers in this situation.
Part I: Overview
Given the high level of publicity and scrutiny that would surely accompany any suit against an MLB player, legal action will likely not be undertaken absent a real possibility for a substantial return.
First and foremost is the pure economic return that might be expected. A hypothetical suit would surely aim to recover salary paid to a player and/or to avoid future salary obligations. Obviously, any potential recouping or avoidance of salary would boost a team's bottom line and potentially increase payroll flexibility.
There are two basic legal remedies that could accomplish this. Depending upon the player’s contract status and the timing of the lawsuit, a team would likely seek a judgment for damages related to paid salary (i.e., an entitlement to recover money from the defendant player) and/or a declaratory judgment voiding future salary obligations (i.e., relief from paying some or all of the remainder of the player’s contract). It is also possible that a team could assert theories of recovery that would allow it to seek damages that are not tied to salary, though there would likely be more barriers to such claims. (The range of possible claims will be discussed in more detail in Part II of the series.)
Secondly, there are some non-monetary benefits that a team could hope to gain. Beneficial legal rulings could help set the stage to help win (or avoid) future conflicts of this nature, although the precedential value of any rulings could easily be marginalized depending upon a variety of factors. Certainly, there are potential deterrent and public relations benefits as well.
Generally, these purposes would seem to flow more to the league as a whole than to a particular team. In the aggregate, I doubt that they would move the needle far enough to warrant a suit that was not economically justified (particularly given the risks discussed next), unless the league was somehow frustrated in utilizing its own internal processes.
Putting aside the cost of a suit (see below), any initiation of legal action brings risks along with it. Of course, there is a serious PR risk involved in losing the suit, either at an early stage or after a trial.
Less obviously, bringing suit always carries the possibility of instigating your opponent to raise a counterclaim that might otherwise have lain dormant. Here, for instance, a suspended player that had been content not challenging their punishment could bring their own claims against the team (or the league as a whole) in response to the lawsuit. The player could potentially attempt to recover pay lost to suspension or challenge the legality of the suspension itself (by arguing it was somehow unjustified procedurally or in substance), seek legal fees for action taken outside of the parameters of the CBA and its arbitration processes, or dream up other creative ways to go on the offensive.
The counterclaims and defenses that might be anticipated highlight another concern. Any lawsuit that goes to the relationship of player and league carries the possibility of stirring up labor relations and antitrust issues that the league would surely prefer not to litigate unless absolutely necessary.
Another form of blowback is perhaps even more concerning –- and more certain to occur. There is little doubt that the attorneys of any player sued would seek to utilize the discovery process aggressively. Discovery allows for each party to acquire information from its opposition (and third parties) through methods such as requests for documents and depositions. This process can be highly invasive, as MLB itself demonstrated in utilizing the court system to get access to the very documents it is now using to support these potential suspensions.
Given the nature of the hypothetical suit being considered here, it is entirely possible that both the team and the league would ultimately be required to turn over large amounts of sensitive, internal information and make top officials available to be brow-beaten under oath in depositions. It can be quite difficult, moreover, to overcome doctrines favoring open access to the court system and prevent such information from being disclosed publicly.
Particularly given that it is hard to imagine any MLB club utilizing cut-rate legal services, the cost of a potential lawsuit would certainly weigh heavily in the decision. Merely investigating and filing a lawsuit of this complicated and sensitive nature could well run up to the hundreds of thousands of dollars, and litigation would likely cost well into the millions.
Discovery, as noted above, is time-consuming and expensive. High-priced experts could be required on subjects ranging from the CBA, baseball performance and contract value, MLB marketing and economics, and PEDs. (Remember, the possible claims and counterclaims could relate to the suspensions themselves as well as the extent to which contracts go beyond simply playing baseball.) Then, there is motions practice, which would demand gobs of legal research, briefing, and argument at various stages. (This is especially true in this context, where layers of contracts, collective bargaining, state and federal law, and legal doctrines regarding arbitration and jurisdiction could create a multitude of complex issues.)
All said, these aspects of litigation could eat up thousands of hours of attorneys’ and their consultants’ billable time. And all that takes place even before the trial itself, which could easily double the bill.
Keep an eye out for Part II, which will look at possible legal claims and remedies that could be pursued. Part III will follow by applying these considerations to the individual players potentially involved.