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Baseball's record book could be next victim of steroid report, expert says

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

Michael Leroy
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Michael LeRoy, a law and labor expert, predicts Major League Baseball officials will be reluctant to consider asterisks that note the records were set under the cloud of alleged steroid use that swept through baseball in the ’90s.

12/13/2007

CHAMPAIGN, Ill. — Major League Baseball’s record book will likely come under fire in the wake of a long-awaited report released today linking Roger Clemens and other superstars to performance-enhancing drugs, a University of Illinois law and labor expert says.

But Michael LeRoy says MLB officials will sail into uncharted waters if a public outcry sparks efforts to discredit records set by Clemens, a seven-time Cy Young Award winner, and others named in a 311-page report on steroid use issued by former U.S. Sen. George Mitchell.

LeRoy, who specializes in employment and labor law, predicts MLB officials will be reluctant to consider asterisks that note the records were set under the cloud of alleged steroid use that swept through baseball in the ’90s.

“After all, there is nothing new about cheating in baseball – why start here when other cheaters have unblemished records?” he said. “But this will stain baseball unlike any other scandal. Conceivably, public pressure could rise to the point of forcing baseball to consider its stewardship of the record book.”

 But an edict from the commissioner to discredit tainted records could face a myriad of challenges from the baseball players’ union or even in court, LeRoy said.

The union could file grievances, forcing MLB to prove that players used performance-enhancing drugs – and used them at time when they were included on baseball’s list of banned substances.

“Unless a player made a blanket admission of guilt, the commissioner would have a very challenging time proving when banned substances were taken, whether a rule was in effect and, possibly, whether the substance led to the record-breaking achievement,” LeRoy said.

“After all, many of these players are, or were, great to begin with and their natural talent cannot be discounted too steeply.”

Another tricky legal question, LeRoy says, is whether grievances could be filed by both current players and retirees named in the report, such as former St. Louis Cardinals slugger Mark McGwire.

“If not, a retired player would have no direct recourse under the labor agreement and therefore no remedy would exist for a possible violation of this collective bargaining agreement,” LeRoy said.

Those questions could go to an arbitrator, he said, with the union arguing that asterisks are a form of discipline while the commissioner counters they are a management prerogative to set standards for competition.

 An arbitrator likely would find the question tough to answer, LeRoy said. The sanctity of the game would have to be weighed against damaged reputations and reduced endorsement income that could support arguments that asterisks are disciplinary.

“But this is only the beginning,” LeRoy said. “As private citizens, the players might have recourse for civil damages for defamation. The commissioner would defend the sport by contending that truth is a defense in a defamation lawsuit.”

“All that is clear for now is that baseball has sailed into murky and choppy waters,” he said.

Editor’s note: To contact Michael LeRoy, call 217-244-4092; e-mail: m-leroy@illinois.edu.