Biogenesis

A few more disclaimers before jumping in. While we are expected to learn of suspensions in short order, it is important to remember that among the players mentioned below, only one (Ryan Braun) has been disciplined to date. Even if suspensions are levied, they could be challenged through MLB's grivance process. Accordingly, I do not intend in any way to comment upon the actual truth of any allegations. Likewise, none of the analysis should be mistaken for a suggestion that any particular team is actually considering any litigation against one of its players.

Part III: Potential Litigation Targets

Potential Targets

Needless to say, high-stakes litigation is extremely risky and costly. And it is far from guaranteed to result in a real monetary return. For those reasons, as well as others noted below, it seems likely that a team would only pursue a suit against a big-money player.

While other names could always surface, a look at the latest list of possible suspension targets reveals relatively little to gain outside of two players: Alex Rodriguez (ten years, $275MM) and Ryan Braun (13 years, $150MM over two contracts). Clearly, Rodriguez and Braun represent real money.

Next on the list is Jhonny Peralta, who is playing on a $6MM option year on the same deal that paid him $5.5MM last year and $5.25MM in 2011 (for a total of $16.75MM). Nelson Cruz is on a two-year, $16MM deal that expires after this year. Not one of the remaining players currently earns more than $1.275MM this year or is guaranteed any salary after 2013. I think you can safely scratch off everyone on the list beneath Peralta and Cruz.

Looking at those two players, it remains difficult to see how litigation would be worth pursuing, even before you get to the non-economic risks. Peralta and Cruz were paid relatively modest sums on their current deals and are owed nothing beyond the time period that they are expected to be suspended for (the rest of this season). If suspended, then, they would already stand to lose the remaining value of their contracts. Neither player is among its team’s most marketable assets. From a common sense perspective, the stats are in the books and the games have been won and lost; there has been no discussion of retrospective forfeits due to the use of ineligible players. In sum, there is far too little to gain to make a lawsuit against these players a realistic consideration.

Let’s turn, then, to the two players whose prominence and contract size make a lawsuit at least a hypothetical possibility.

Ryan Braun

At this point in time, Braun is not only the best player involved in the Biogenesis scandal but is also probably most important to his team’s brand and market. He also signed a big extension (five years, $105MM) in April of 2011, which does not kick in until 2016. In addition to pursuing direct contract remedies through an MLB arbitration forum, the team could potentially go to court in an effort to avoid that extension and/or recover for broader harms arising out of Braun’s conduct.

At the time of Braun’s extension, agent Nez Balelo of CAA Sports acknowledged that “the commitment on the club’s part is huge.” Balelo also characterized the deal in an interesting manner: “we basically view it as a partnership between Ryan and the organization moving forward.” Brewers GM Doug Melvin, meanwhile, explained that Braun had “already reached extraordinary milestones that are comparable to many of the great players in baseball history” and had “shown a tremendous commitment to the Milwaukee market.”

While obviously intended only as a positive reflection on a mutually-agreeable extension, such statements could come up in litigation. Balelo’s statements lend fodder to the concept that contracts of this magnitude include salary considerations for far more than just on-field performance. They also potentially speak to the reasonableness of the team’s reliance on any assurances on PED non-use it may have received. Finally, the statements could help to prove the foreseeability of consequential damages (because the player was aware of the nature of the commitment that was being made) and support damages arguments regarding the degree of harm sustained (certainly, a “partnership” implies a great deal of mutual reliance and mutual risk). This also points to an avenue for investigation during the discovery process: was anything said or done in private to assure the team it was safe to make such a major, distant commitment?

Two other aspects of Braun’s situation are also worth addressing. First, he tested positive for a prohibited substance not long after inking his big extension. The positive test that led to his suspension occurred on October 1, 2011 –- after he had already inked his deal. Of course, he ultimately challenged that suspension through MLB’s grievance process, resulting in the suspension being overturned. He reportedly testified that he had never used PEDs in the course of that proceeding. Braun later told the press that “this substance never entered my body at any point” and said that he had told the player’s association that “I have not done anything that could have possibly led to this test result.” Braun also made many statements regarding his upright personal character and gave assurances of his pure intentions as a ballplayer. Arguably, Braun’s actions in the wake of the suspension led the team to double down on its star attraction.

There is much we don’t know. What has Braun said to the Brewers’ brass (including owner Mark Attanasio, with whom he is reportedly close), or others that could be called upon to testify? Is there any evidence that his early-career successes were procured by illicit drug use, and supported by his protestations of innocence, leading the Brewers to rely on an essentially falsified performance history in signing his new deal? Such hypothetical facts are among the kinds of evidence that would be needed to support a claim that Braun fraudulently induced the Brewers to ink him to a long-term extension that kicks in well down the road. Standing alone, Braun’s statements could aid a potential claim for fraudulent misrepresentation during the performance of his original extension, which might seek recovery for damage to the team’s brand, wasted marketing expenditures, or other harms.

Second, let’s turn to Braun’s more recent suspension, which took quite a different path. After reportedly being presented with “overwhelming” evidence, Braun apparently agreed to accept an immediate 65-game suspension rather than challenging a potentially lengthier ban. Reports also indicate that the evidence against Braun demonstrated that he had “used ‘a sophisticated drug regimen’ for an extended period of time.” The timeline of PED use, which is not publicly known, would (as noted above) be critical in assessing any fraudulent inducement claim. Looking forward, of course, his admission and suspension (along with whatever more detailed information is ultimately culled) could be utilized in a fraudulent misrepresentation claim.

One key piece of information that remains unreported is the actual agreement (if any) that was entered between Braun and the league (and/or the Brewers). We know that Braun is accepting his suspension and foregoing a direct challenge through the grievance procedure, but did the parties negotiate any other terms, such as disclaimers of legal claims? It is certainly possible that Braun’s representatives sought (or will seek) to limit his exposure by getting the team or league to bargain away any rights to pursue contract or tort remedies. Of course, it could be forced to make concessions on future salary obligations as a price for doing so.

At present, Brewers owner Mark Attanasio has expressed that the team’s “full expectation is to keep” Braun in the team’s fold. He also noted, however, that he has yet to learn the full details of the allegations that Braun was faced with. While it seems far more likely that a final resolution will be accomplished without resort to the courts, that possibility could at least be something of a bargaining chip in the team’s pocket.

Alex Rodriguez

Finally, let’s turn to the pink elephant in the room: Alex Rodriguez, who re-signed with the Yankees as a free agent on December 13, 2007. While Braun is the better player at this point and is more central to his team’s brand, Rodriguez is the highest-paid player of all-time and plays for baseball’s most valuable and marketable franchise.

Rodriguez’s current deal includes the remainder of this year’s $28MM salary, as well as $86MM in obligations over 2014-17. The contract also provides for a $30MM marketing agreement, with a series of $6MM bonuses for various home run milestones. (Rodriguez is just 13 long balls away from triggering the first of those, for 660 homers.)

Immediately after signing that contract, Rodriguez was interviewed by Katie Couric of CBS News. When queried for his reaction to the just-released Mitchell Report on the use of PEDs in baseball, Rodriguez said he was “disappointed” and called it a “huge black eye” on the game. Rodriguez directly and unequivocally denied that he had “ever used steroids, human growth hormone, or any other performance enhancing substance.” Of course, just over a year later, he went on to admit to ESPN’s Peter Gammons that he had used a banned substance while playing with the Rangers over 2001-2003. Since joining the Yankees in 2004, he said, he had “been clean.”

While we do not know what (if any) assurances Rodriguez gave to the Yankees before signing his extension, the timing of his statements to Couric certainly places his denial right at the time that the deal was reached. It is not outside the realm of possibility, then, that a fraudulent inducement claim could be made out. Of course, unlike Braun, Rodriguez has already performed for much of the duration of that contract, which would make it more complicated to parse out damages relating to salary.

Another interesting facet of the Rodriguez situation relates to the fact that, as noted above, he admitted in 2009 that he had previously used PEDs. On the one hand, his insistence that he had not used since that time (again, potentially accompanied by any currently non-public information) could support a claim that Rodriguez made fraudulent misrepresentations that led the Yankees to continue to market him and associate him with their brand.

On the other, that prior admission could function (in a somewhat perverse way) to limit any argument that a (still-unannounced) suspension caused additional harm. For one, there may be statute of limitations issues, which bar claims after a certain amount of time elapses. (There is far too much we don’t know to assess that possibility at this point.) It could also be argued that, having already identified himself as a player who had relied on PEDs, any new PED revelations have a more limited impact. Rodriguez could claim that the Yankees chose to market him in spite of the known badge of PED use, choosing to associate themselves with an already-tarnished brand. This could go to several ends: for instance, disproving that the Yankees reasonably relied on any assurances Rodriguez may have given regarding continued PED use, disrupting the connection between a suspension and damages, or driving down the damages in a potential award.

Finally, let’s turn to the unique marketing aspect of Rodriguez’s deal. Unlike most baseball contracts, the $30MM in marketing incentives are somewhat analogous to the Lance Armstrong situation discussed in Part II. This clause helps to substantiate an argument that Rodriguez was paid for services beyond simply showing up to the ballpark, and reflects Rodriguez’s unique status as the game’s biggest name at the time he signed his extension.

Further, the clause itself could be subject to attack, either on an unjust enrichment theory (as in the Armstrong case) or other basis. Rodriguez has already acknowledged that at least some of his earlier home run tallies were tainted, and a suspension could discredit future long balls. Of course, it remains to be seen whether Rodriguez will even have the chance to notch the various milestones. And unlike Armstrong’s vacated titles, A-Rod’s past and future home runs will presumably stay in the Yanks’ scorebooks.  While the team’s ability to market those milestones has undoubtedly been greatly impaired, finally, the overall value at play here seems likely to be relatively limited as a practical matter. Still, if the team chose to go after him at all, I’d expect a claim along these lines to show up.

Conclusion

We’ve covered a lot of ground, but this preliminary look at a team’s creative legal option serves primarily to highlight the vast complications, costs, and risks involved. By pursuing litigation, even if successful, teams would risk further damage to their (and the league’s) brand through the discovery process, to say nothing of runaway legal costs, labor issues, adverse legal rulings, or even government intervention. Those concerns very likely outweigh the potential benefits, after discounting any potential returns based upon the likelihood of success. If claims along these lines come up at all, it will likely be in private negotiations rather than a public forum.

Litigation (along with the underlying legal relationships that it addresses) is far more uncertain and variable, I think, than many people realize. My purpose here, then, was to take a somewhat real-world (but admittedly non-expert) look at the suggestion that litigation was a potential option, and to provide MLBTR readers with a sketch of how an attorney might approach the investigation and research of such a proposition. While I certainly do not claim to have been correct or exhaustive in all accounts — and heartily discourage anyone from relying in any way on what I've written! — I hope it has at least been an interesting thought experiment. I look forward to addressing any criticisms or observations in the comments.

Before we begin, a few disclaimers are in order. First, and most importantly, all discussions of hypothetical facts and claims are just that: hypothetical. Of course, I have no knowledge of any facts (actual or alleged) beyond what has been publicly reported. Second, while I have endeavored to flesh out the considerations to the extent possible, I have not performed anything close to complete legal research and analysis. What follows is merely a suggestive starting point, and certainly does not constitute legal advice.

Off we go …

Part II: Claims, Remedies, and Defenses

Barriers to Entry

Before we reach individual claims, it is necessary to address a potentially preclusive barrier to any lawsuit. Baseball, like most things in life, is governed by contract. The paper is the place to start. In the MLB context, that would include the Basic Agreement (commonly referred to as the CBA). The CBA incorporates by reference the Uniform Player Contract (UPC), which in turn incorporates by reference both the CBA and the Joint Drug Prevention and Treatment Program (often called the JDA). As it turns out, as with most contracts these days, the CBA provides for an arbitration process (what it terms the Grievance Procedure) for dealing with disputes between team and player.

Baseball’s Grievance Procedure is distinct from its better-known salary arbitration process. Arbitration, for our purposes here, refers to the system of resolving disputes outside of the court system. (Generally, arbitration is intended to provide a cheaper and more time-efficient means of doing so.) While a full treatment of the topic would consume MLBTR’s pages, suffice to say that there is a strong policy of courts enforcing arbitration clauses broadly. Typically, then, any disputes between player and team will run through the MLB grievance process rather than a court.

That being said, it is worth taking a closer look at baseball’s arbitration provisions. Contract disputes plainly fall within their ambit. There seems to be room to argue, however, that tort claims –- which may relate to a contract but do not rely upon its terms as a vehicle for recovery –- do not. If that were the case, teams would be free to assert those claims in a traditional court. Since I could not find any sources staking a position on this topic, and lack the resources to pull off a fully researched and vetted treatment, we’ll have to settle for a sketch of the possible argument.

A contract's arbitration clause delineates the disputes that fall within it. As the United States Supreme Court reasoned in Granite Rock Co. v. International Brotherhood of Teamsters, 130 S. Ct. 2847 (2010), “a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute.” Article XI of the CBA holds that only “certain grievances and complaints” must be arbitrated, with “Grievance” defined as “a complaint which involves the existence or interpretation of, or compliance with, any agreement, or any provision of any agreement … between a Player and a Club.” While any dispute between team and player arguably “involves the existence” of their agreement in its most literal sense, that phrase seems intended to cover a potential dispute over whether player and team ever actually entered a contract.

Importantly, moreover, another provision of Article XI seems to limit the arbitration panel’s powers and clarify the meaning of the phrase “involves the existence.” While there is a strong presumption in favor of reading arbitration clauses broadly, in Granite Rock the Supreme Court looked at other portions of the arbitration agreement in interpreting the core arbitration clause itself. Here, Subsection B of Article XI sets forth the arbitration panel’s powers, providing that “the Arbitration Panel shall have jurisdiction and authority only to determine the existence of or compliance with, or to interpret or apply agreements or provisions of agreements … between individual Players and Clubs” (emphasis added).

While it would take a fully developed contract argument to stake out a clear position, that sounds like a promising starting point to keep tort claims out of arbitration. Ultimately, an arbitrator or a judge (that’s yet another open question) would decide whether some or all tort claims would be heard by an arbitration panel or a court. Either way, any contract claims would certainly need to be arbitrated. (Yes, that means that the claims could be split into two forums. See KPMG LLC v. Cocchi, 132 S. Ct. 23 (2011).) And either way, a team could in theory vindicate its legal rights; that's why we allow arbitration in the first place.   

So why does this potentially matter? Some of the reasons will become clear as we look at the possible actual claims that could be raised.

Possible Claims

While I will spare you the painful details to the extent possible, it is important to look at the actual causes of action that might be trotted out. Generally, to win a lawsuit as a plaintiff, you bear the burden of proving a series of elements –- factual propositions –- that add up to entitle you to some action by the court.

Olney references the Lance Armstrong litigation as a potential model, and I am more than happy to piggyback on the Justice Department’s reliably thorough work. There, are, however, several important distinctions to be made. The Armstrong case originated as a qui tam action (brought by the inimitable Floyd Landis) and was joined by the government. In turn, the government’s complaint against Armstrong et al. included False Claims Act counts along with claims of breach of contract, fraud, and unjust enrichment. Claims under the False Claims Act were only available there because the contractual relationship was with the government (the U.S. Postal Service).

The other three types of causes of action present in the Armstrong case, however, largely cover the gamut of standard claims in this arena. Unjust enrichment and fraud, in this context, constitute alternative methods (to breach of contract) to avoid past or present contract obligations, and to seek other recovery. We’ll look at each of those theories, along with one other claim that occurred to me as a possibility.

Contract Claims

As Michael McCann recently explained in a piece for SI.com, Section 7(b) of the UPC generally forms the basis for MLB team efforts to void future contract obligations. That clause permits clubs to terminate a contract if a player should fail to “conform his personal conduct to the standards of good citizenship” or “render his services hereunder or in any other manner materially breach this contract.” As McCann explored in depth in an earlier piece, however, teams have struggled to apply these clauses successfully in MLB’s arbitration system.

Generally, the best a club can do is to work out a settlement to recoup some relatively small portion of past or future salary obligations. Remember, barring some major shift in the law, any action by a team to void a player contract based on a breach is definitely going to go through the arbitration process, not a court. While our primary focus here is not on this more traditional approach, we'll use the opportunity to take a brief look.

Let’s first consider the possibility of voiding the contract going forward. (In Part I, we discussed this in terms of the legal remedy of a declaratory judgment.) Violation of the JDA has its strengths and weaknesses as a basis for a traditional contract claim. On the one hand, it seems to go to the heart of a player’s contract, which hires him “to render … skilled services as a baseball player.” By signing the UPC, the player represents (Section 4(a)) that his skills are “exceptional and unique” and that his services as a ballplayer have a “special, unusual and extraordinary character.” Arguably, a team should not have to pay the rest of the salary owed a player whose purported abilities were procured in part through the use of substances clearly prohibited by the JDA.

Of course, there are some problems here as well. For one, the JDA provides for suspensions without pay; if nothing else, that pay could not be recovered twice. And the JDA also contains a clause (Section 7(M)) holding that “[n]o club may take any disciplinary or adverse action against a Player (including … any adverse action pursuant to a Uniform Player’s Contract) because of a Player’s violation of the Program.” While this clause would surely present a hurdle, I think there are ways around it. It could be argued that the kind of “adverse action” contemplated is disciplinary or punitive action for the violation, not the protection of a team's other legal rights. A team could contend that it is not pursuing litigation “because of a Player’s violation of the Program,” but rather because of the underlying action that happened to lead to a violation of the JDA. The JDA deals with a variety of drug types and situations. Some of them, it would be argued, also constitute material breaches of the entire contract or violate other aspects of the contract, including those noted by McCann.

Further, while it is highly fact-dependent, PED use could play a role in a violation of the medical provisions of the UPC. The player must warrant (Section 4(b)) that he “has no physical or mental defects known to him and unknown to the appropriate representative of the Club which would prevent or impair performance of his services.” Some (or, perhaps arguably, all) PED use surely involves hiding or masking such impairment from the club. Even more directly, pursuant to Article XIII (G) of the CBA and Paragraph 6(b)(1) of the UPC, a player must authorize the disclosure of medical and health information, as well as provide advance notice of most medical treatment. And clubs take a Medical History Questionnaire from all incoming players (Attachment 6 to the CBA), which asks players to identify whether they are “taking medicine or pills” and to list treatments for injury or illness. Ultimately, if a team was bold enough to pursue it, there are plenty of arguments to be made that PED use constitutes a material breach and supports voiding a contract.

It is also possible that a team could focus on the broader harms of PED use. Such an approach would draw on Olney’s suggestion that teams could look beyond the aspects of a contract that relate to showing up and playing baseball. To be sure, this is not the Armstrong case, which involved a sponsorship agreement where marketing and public relations were the predominant, and perhaps the exclusive, purposes. But a MLB player’s compensation (UPC Section 2) is tied to other promises beyond playing, including the requirement (UPC Section 3(b)) that the player “participate in any and all reasonable promotional activities.” And some individual players’ contracts expand upon the standard provisions through performance or milestone bonuses.

Ultimately, however, there are limits to the recovery that might be anticipated from such a claim based purely on the contract. The player may well have been violating his contract while using PEDs, but what is the measure of the harm to the team? There has been no suggestion that a team (or player) will forfeit past wins, statistics, or awards. More contentiously, it could be argued that past PED use even benefitted the team so long as it went undiscovered. And of course, any knowledge on the part of the team would be explored in discovery and potentially quite problematic. This makes past salary a difficult target. While a team could conceivably argue that it should recover at least the portion of the contract that was allocable to marketing, promotional, and branding purposes, that would be challenging to quantify and would have obvious limits in scale. Finally, it is generally much more difficult to obtain recovery for harm beyond the four corners of the contract on a contract theory (as explored further below).

Given the historical limits of the MLB arbitration setting and legal and practical limits to breach of contract, then, a truly substantial recovery might require pursuit of non-contractual legal theories. Let’s turn to those.

Fraudulent Inducement

Of the two alternative approaches suggested by the Armstrong case, fraudulent inducement is more difficult to allege and to prove, but also offers more in potential remedies. While it is often possible to get past the motion to dismiss stage and into discovery by doing little more than restating the elements of a claim, fraud counts require specific allegations. And fraud must generally be proven to a higher standard than other civil claims.

For the reasons given above, there is at least a possibility of avoiding arbitration on a fraudulent inducement action if a team decides it prefers the forum of a court. But it will certainly be tricky to do so, as the claim would relate directly to the formation of the contract but not to the validity of the arbitration clause itself. (I never said there were going to be any clean answers!)

In this situation, you’d be looking for actual misrepresentations made by a player to a team around the time that a contract was agreed upon. A team could allege that, in agreeing to a contract, it relied to its detriment on a player's assurances that he had not used, was not using, or would not use PEDs. As a general matter, to be actionable, a misrepresentation must be one of present fact; thus, the lie that “I am not using banned substances” is more likely to support a claim than the lie that “I do not intend to use banned substances in the future.” The latter is generally categorized as a mere promise, although there can be some wiggle room for arguing that it constitutes a knowing misstatement of present fact. (E.g., a player was in the midst of placing an order for PEDs on the very day he said he had no intention to use them in the future.) 

Proving a representation (as well as its falsity) can also be a challenge. Teams could point to recorded media interviews, emails, or even non-recorded verbal statements. (If a player made a verbal misrepresentation to a club official, would that official's testimony on the statement be admissible in evidence? Quite possibly: the statement could be deemed a “verbal act” that does not constitute hearsay.)

Fraud in the inducement is appealing, in spite of its difficulty, because it reaches back to the beginning of the contract and opens the possibility for different kinds of remedies, including potentially more advantageous measures of damages. As a general matter, contract damages seek to put the plaintiff in the position it would have been if the contract was performed appropriately, while damages for fraud –- a species of tort law -– attempt the somewhat more expansive and expandable purpose of returning the plaintiff to its pre-transactional state (and to deter future malfeasance). Hence, consequential damages (compensation for harms that the violating party knows are likely to flow from its actions) are easier to come by on a tort claim such as fraud. Some have put the distinction this way: contract remedies are preferable when seeking to make a good bargain better, while tort remedies are best for ameliorating a bad bargain.

Discerning what precise damages would potentially be available is complicated, fact dependent, and variable by jurisdiction. But fraud puts more on the table. Stated generally, it is easier to imagine creative arguments for damages based upon a successful claim that a player connived to sell a team damaged and unmarketable goods than it is for a claim that a player merely failed to comply with one aspect of their contract while otherwise performing.

It is also worth noting that there is one potentially game-changing factor at play in any hypothetical fraud claim. A player’s legal team would surely explore through the discovery process whether there was prior knowledge of and acquiescence to PED use by the team (and/or the league). Evidence of such knowledge would likely kill the fraud claim, and presents a massive public relations risk. Surely, a team would need to be very confident in its internal affairs before wading into these waters.

Unjust Enrichment

Unjust enrichment, on the other hand, is a bit of an odd fit to the MLB situation. Armstrong was entitled to a hefty promotional bonus for winning the Tour de France, which he did several times. The argument, so far as I can surmise, is that he essentially faked his way to a title that he was later forced to forfeit, so as to render his performance valueless to his sponsor. Hence, when the Postal Service paid him, Armstrong received a contractual benefit that exceeded the value of the services he provided. It could be that this cause of action was asserted there because the contract argument posed some difficulties.

For our purposes, a baseball contract with statistical or team performance bonuses could be somewhat analogous. But lacking even an asterisk, let alone the vacation of any records or titles, the theory seems less promising in the MLB context.

Fraudulent Misrepresentation 

A team could hypothetically assert another variety of fraud claim: fraudulent misrepresentation based on statements made during the performance of the contract. All of the difficulties that apply to fraudulent inducement are present here as well. Of the claims we have considered, however, this one is the most likely to dodge arbitration and make it into a courthouse.

To take a straightforward example, assume that a team is considering whether and how to market a high-profile player. The team asks the player or his representatives specific questions about PED use to determine whether to commit money and reputation to marketing featuring that player. Perhaps the team even advises him of what is at stake (damage to the brand, etc.) if he lies. The player steadfastly denies any PED use to a team official (and/or the media), and the team goes on to feature that player prominently in its promotional materials. It could be alleged that the player stood to benefit from the fraud by inducing the team's promotional efforts and hiding the PED use, which functioned to avoid discipline, enhance the player's brand and image, and attract private sponsorship opportunities. A fact situation like this could potentially provide the basis for a fraudulent misrepresentation claim, though of course things are rarely so cut and dry in the real world.

Why pursue this claim? Once more, the idea would be to open additional avenues to creative damages options. The team could in theory allege monetary harm ranging from actual funds expended, devaluation of its brand, lost ticket sales, and/or expenses incurred in public relations efforts required to deal with the PED controversy. The gist of the claim, and its potential for enhancing recovery, might be best understood in simple terms: What about all the baseball cards, jerseys, and programs the team printed — sold and unsold — featuring a PED user’s name or likeness alongside the team name and logo? 

Of course, it remains a very difficult task both to value these harms (damages must generally be proven to a reasonable certainty) and to connect them to the actions of the player. Once more, it is not really possible to handicap the likelihood and magnitude of success, even if we did have a firm grasp on the competing facts.

Summary

As we might have expected, it turns out that there are a wide range of risks and barriers to a team pursuing any kind of legal action against a player. Indeed, just getting outside of the MLB arbitration system and its historical limits to recovery (assuming that is the purpose) would be a significant challenge. On the other hand, there are somewhat plausible avenues to a real recovery, depending upon the actual facts.  Accordingly, in the next segment, we will take a closer look at the actual player contracts involved to see whether there is enough meat on the bone to entice a team to pursue this somewhat radical approach.

Part I of the series provided an overview of the litigation process and its potential costs, risks, and benefits to a team. Part III will follow by applying these considerations to the individual players potentially involved.