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

Albany Law ReviewVol. 73 Nbr. 2, January 2010

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Major League Baseball

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


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"...

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