Calling their shots: miffed minor leaguers, the steroid scandal, and examining the use of section 1 of the Sherman Act to hold MLB accountable.

• Author: Gillerman, Jonathan D.
• Position: Major League Baseball

1. INTRODUCTION

   In the seasons that followed Major League Baseball's (1) ("MLB") notorious 1994-95 players' strike, (2) professional baseball received a much needed injection of fan enthusiasm via a surge of homerun hitting that revived the sport (3) and would forever define the period as baseball's "homerun era." (4) Such awe-inspiring performances captivated both fans and journalists (5) alike, but the wonderment would prove fleeting; the collective naivete shattered by the growing revelation that the majestic homerun boom they were experiencing was attributable to perhaps nothing more (6) than the rise of performance-enhancing drug (7) use in the game.

   It wasn't long before federal investigators substantiated underlying suspicion (8) with discoveries of links between major domestic steroid suppliers and MLB players. (9) An alarmed Congress responded to the growing scandal, most notably in 2002, demanding that MLB and the Major League Baseball Players Association ("MLBPA") (10) implement stricter drug testing policies, (11) and again in 2005, (12) when the Committee on Government Reform subpoenaed (13) several prominent ballplayers and MLB executives to testify (14) about the use of performance-enhancing drugs in the game. (15) By the time MLB finally (16) commissioned an independent investigation (17) to assess its steroid problem, the highly anticipated findings confirmed what many already believed to be true: The decade once declared by baseball's Commissioner (18) to have been its "greatest" (19) was tainted by rampant steroid use (20) among its most celebrated athletes. (21)

   With records and reputations sullied (22) and the integrity of the game in shambles, the fallout from the Mitchell Report embroiled MLB in arguably its most prolific scandal ever. (23) Even now as baseball attempts to move beyond its tainted past, new details of steroid use continue to emerge, serving as a constant reminder of the era MLB would like to sooner forget. (24)

   When the dust finally settles, it seems clear that MLB, the MLBPA, and the growing list of "confirmed cheaters" (25) will be amongst the biggest losers of the steroid debacle. And yet, there is one segment of the baseball populace that lost long before the Mitchell Report made "steroid use in baseball" (26) a household name. I refer to the Minor League players who never made it to the professional level, simply because they played during an era of uninhibited steroid use. (27)

   For these players, their decision meant consciously falling behind the competition, and it may have ultimately cost them millions of dollars in professional contracts and endorsements. (28) Since the Mitchell Report's publication, at least one former Minor League player has proposed organizing a class action lawsuit with the hopes of forcing MLB to adopt stricter drug testing rules. (29) Similarly, Rick Reilly, a columnist for ESPN The Magazine, has also suggested a class action suit for the Minor Leaguers, but has taken it a step further by proposing an actual cause of action against MLB under an antitrust law restraint of trade theory. (30) While Reilly's aim is humor, (31) the column nevertheless presents an interesting idea for potential litigation. Still, it may be one unlikely to effectuate an actual lawsuit because of the novelty of the claim, the costs associated with litigation, and the underlying legal hurdles it would encounter, most notably, MLB's prized exemption from federal antitrust laws. (32) Navigating this exemption, as well as establishing the other elements of the proposed claim, would prove exceedingly more difficult than Reilly surmises in his column, (33) if it is even possible at all. (34) But the question remains: Could former non-steroid using Minor League players, who were competing at the highest level of Minor League Baseball and were denied an opportunity to play professional baseball because of competitive disadvantages caused by performance-enhancing drug use, successfully sue MLB and its club owners in an antitrust restraint of trade action, claiming that MLB's permissive allowance of steroid use during the homerun era constituted a conspiracy that unreasonably restrained trade in violation of section 1 of the Sherman Antitrust Act?

   The purpose of this comment is to examine this question by discussing the elements and issues that would need to proven, and the likelihood of the Minor Leaguers succeeding on the merits of this claim.

   Part II of this comment will discuss the underlying factual predicate for the claim: that there is a positive correlation between steroid use and improved performance, and that MLB and its individual clubs knowingly allowed steroid use to continue during the homerun era. These two elements are necessary in order to demonstrate under the words of section 1 of the Sherman Act that a "conspiracy" existed, (35) and that this conspiracy unreasonably restrained trade. (36)

   Part III will discuss the legal merits of the restraint of trade claim. Part III.A will begin with an overview of Antitrust Law and the tests used to prove a section 1 restraint of trade claim. Part III.B will analyze the issues that must be proven for the present claim to succeed. Part III will conclude that despite numerous obstacles towards making a prima facie claim, the claim is still viable.

   Part IV will discuss additional legal hurdles that the Minor Leaguers must overcome to state their claim. These include issues posed by MLB's presumed exemption from the antitrust laws, (37) the Nonstatutory Labor Exemption, which immunizes employers and unions for agreements in restraint of trade which were bargained for in good faith by employers and union representatives, (38) and finally, the statute of limitations for a section 1 antitrust claim. (39) This Part will conclude that the Minor Leaguers have a good chance of overcoming these three hurdles as well.

   The comment will conclude that despite baseball's near obvious culpability, this claim would be difficult to establish because of the lack of any concrete evidence to support the Minor Leaguers' claim, and the significant legal hurdles the plaintiffs must subsequently overcome even if a court were to accept their prima facie claim. Yet, despite the numerous obstacles, with the right plaintiffs and a lenient judge, the claim could succeed.

2. ESTABLISHING THE FACTUAL PREDICATE FOR THE ANTITRUST CLAIM

   1. Steroid Use and Improved Performance: The Proof Is in the Juice

      The first step towards proving that steroid use by Major Leaguers created an unreasonable restraint of trade is to demonstrate that there is a positive correlation between use and performance. Establishing this connection is about as close to a slam-dunk as it gets for the plaintiffs' claim.

      The now infamous term "performance-enhancing drugs" is no misnomer. These substances have earned their namesake by providing players with a physical edge (40) that can dramatically (41) improve their on-the-field performance. (42) Fantastic results have been realized by hitters and pitchers alike. (43) Indeed, it is their overwhelming effectiveness that created the culture of widespread use, (44) eventually transforming the game into a "[p]harmacological [t]radeshow." (45) It was clear to players who did not use that they were placing themselves at a significant disadvantage as compared to their counterparts. (46) Thus, in any hypothetical suit, MLB would likely concede that a direct correlation exists between use and performance, rather than risk losing credibility arguing a point many now consider to be moot. (47)

   2. Putting Meat in the Seats--Baseball's Permissive Stance on Steroids

      The second factual element that must be proven is that MLB and its owners committed a conspiracy or agreement amongst themselves. This conspiracy requirement can be met, this comment argues, through evidence of MLB's and the club teams' permissive allowance of steroid use by players. While this element is not quite the "slam-dunk" the former was, there is still substantial evidence that proves such a conspiracy existed, if only in implicit form.

      To illustrate, in his 2005 groundbreaking tell-all book Juiced, former MLB MVP and admitted steroid user Jose Canseco recounts how MLB allowed steroid-infused homerun hitters to resuscitate the game. (48) It was at this time, according to Canseco, when the game was experiencing a renaissance thanks to the power surge, that baseball's leadership "made a tacit decision not only to tolerate steroid use, but actually to pretend it didn't exist among baseball players" (49) MLB players have long been known to keep their teammates' legal indiscretions under wraps. (50) It's just that this time around, the owners and league officials were in on it too.

      Call it willful blindness or conscious ignorance, MLB exemplified an unmistakably "laissez-faire" approach towards steroid use during the homerun era. (51) It is easy to understand why. The league had become more popular than ever before, and there wasn't anyone affiliated with the game who wanted to risk derailing the momentum. (52)

      At best, it seems MLB is guilty of turning a blind eye while players cheated their way into the record books. (53) At worst, they are guilty of protecting, (54) and in some instances, even promoting the use of performance-enhancing drugs. (55)

      In the Mitchell Report, Senator Mitchell defends MLB's inaction by noting that after the work stoppage of 1994, pressing bargaining issues persisted, and this is why "the use of steroids and other illegal performance enhancing substances in professional baseball received a lower priority than economic matters." (56) The Senator's assessment seems most generous though, considering that any attempts by MLB to curtail steroid use have come only on the heels of pressure from Congress, the FBI, and the media. (57)

      In sum, it is not known whether there were ever secret meetings or memos where owners and league officials expressly...