A-Rod’s Breach of Contract Claim?

Baseball Caps.jpgInspired by Dan’s post on the tort of breach of confidentiality: can a unionized baseball player win breach of contract claims if information the collective bargaining agreement requires to be kept confidential or destroyed is neither destroyed nor kept confidential?

The issue arises concerning public disclosures earlier this month of 2003 steroid test results for Alex Rodriquez that the CBA required the union and/or the league to destroy or keep confidential. Numerous issues appear, both factual and legal.

First, a threshold factual issue: exactly how was the information disclosed? The information was generated in 2003, kept at a third-party lab through April 2004, when federal agents with warrants seized it. The information is evidence in an ongoing government investigation and appears to be under seal by court order. It does not appear that either the union or the league were responsible for the public disclosure, which was reported by Sports Illustrated earlier this month.

Second: which party made the promise to destroy under the CBA, the union or the league? Some talk suggests that the union undertook this duty and this makes logical sense given its memberships’ particular interest in its destruction. But I’d need to see the CBA to determine that and I have not seen it.

Third, did the promisor (whether union or league) breach the promise to destroy? This will depend on interpreting the contract language and comparing it to any performance steps the promisor took. The information apparently was still at a third-party lab in April 2004. Does that mean that the promise to destroy was breached?

Fourth: did the union or league violate their promises of confidentiality? This does not seem likely. They had to repose the information with the third-party lab, of course. Government officials seized it pursuant to a warrant. Someone, but not obviously the union or the league, made the public disclosure.

Fifth, would the player be able to enforce the CBA provisions against the union or the league anyway? As a matter of common law contracts, no doubt a union member would qualify as a third party beneficiary of the CBA and be able to assert rights under it. But labor law would trump contract law, and it puts limits on members’ rights to sue under CBAs. Members usually are remitted to suits against the union under its constitution for challenges to its representation.

This gets into matters beyond my expertise, but this and the foregoing issues suggest that the possibility of a breach of contract action may be more difficult than appears. And I have only begun to think about the issues I’ve listed. There may be others.

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4 Responses

  1. Larry,

    Regarding your fourth point, I would assume that if the union or league promised confidentiality and then subcontracted with another entity, wouldn’t they be vicariously liable if that other entity breached confidentiality? And wouldn’t the union or league be obligated to include duties of confidentiality in any contracts they make with third parties?

    Of course, if the government leaked, that’s another story.

  2. Lawrence Cunningham says:


    Uncertain. Subject to reading the CBA, its mutual confidentiality provisions probably require any agreement with third-parties, including the lab, to maintain confidentiality. Failure to do so would likely constitute a breach. But I’d be surpised if it did not.

    If the lab contract did contain a confidentiality clause, the first issue is whether the lab breached it. Reportedly, federal agents siezed the information, armed with a warrant, which would probably enable the lab to claim excuse from any asserted breach at that stage.

    Even if the lab breached, it may difficult to sustain a contract-law argument imputing that breach to the union or league. Your viacarious liability theory may work, but not so much as a matter of contract law, but perhaps under agency-principal doctrine, though that may be a stretch.

    As for the lab itself, if it breached, damages may be limited to well less than the kind of reputational and other harm the player may suffer.

    Same upshot as earlier: I think there are difficult issues and learning more about the CBA, the lab contract, and, of course, the leak source, would help!

  3. A.W. says:

    The only problem is that wouldn’t his use of the drugs be the first breach?

    Just sayin’.

    It would be hard to construe any of his contracts to say its okay if he uses drugs.

  4. A.W. says:

    I think these comments I have posted at the first post might be relevant to the discussion. I am not printing everything I said, but just the most useful points, the core of my argument.

    In the law we often say that certain contracts are just unenforceable. A contract with a minor, is unenforceable against the minor. A contract under duress, including a hostage situation, is unenforceable against the person under duress. A contact with an illegal purpose. You can make a deal in confidence to buy drugs or sex, but if you are cheated, well, tough on you. The law will not help you to enforce it.

    The fact is that the practical effect is only to keep drug use secret. If someone had leaked that the Rod had not used drugs, no one would have cared and there would have been no case. I fail to see how it can be okay in the law to say we will not enforce a drug deal itself, but it is over some line to say we will enforce a deal to protect a drug user. The only distinction is I am not sure what he juiced himself up with was illegal, but it certainly was immoral.

    Which is not to say that the precedents directly require this outcome. But as a matter of policy, that is the shape I would like to see the common law take.

    By the way, the sanctity of contracts hasn’t been what it was for years. the further north you go, more or less, the less they are honored when the outcome is disliked. And in general I oppose this trend, but the idea of a rich baseball player who got rich cheating then getting richer because someone revealed his cheating is manifestly unjust. [And it is worth noting that there is a common law principle that a person should not benefit from their own wrong.]

    I will add that this “contractual” privacy, as it is, wouldn’t stand up in a court of law anyway. If the drug records were ever subpoenaed, they couldn’t hold up the contract and assert a privilege. So i see no good reason to say it should nonetheless be upheld if it was revealed by a method less than a subpoena.