Inside Baseball: MLB Dares A-Rod to Waive Confidentiality on Drug Testing. Can He?

Inside Baseball: MLB Dares A-Rod to Waive Confidentiality on Drug Testing. Can He?

I hate writing this, but Alex Rodriguez’s attorney is right.

When Major League Baseball issued its surprise challenge to A-Rod’s attorney Joseph Tacopina on the Today Show that A-Rod could discuss the facts of his suspension provided MLB could publicly disclose all of its evidence in the case, it made for a great “gotcha” moment on live TV.

Tacopina had been, for several days, stating in interviews that A-Rod would love to discuss MLB’s case against him but could not because of the confidentiality clause in the league’s Joint Drug Prevention and Treatment Program (the “Program”). It was a no-risk situation: Tacopina could profess A-Rod’s innocence knowing the public cannot evaluate any of the underlying evidence. By agreeing to waive the confidentiality provisions to discuss the case, MLB upped the ante.  Not only did it say that it is unafraid for the evidence to be seen by the public but MLB showed it was unafraid by agreeing to a means to actually release the evidence, thereby winning this PR battle.

But Tacopina rightly called the challenge a “publicity stunt” because MLB almost certainly knew that A-Rod and MLB can’t waive the confidentiality provision without the MLB Players Association’s consent because the Players Association is a “necessary party” in the relationship and had to waive confidentiality as well.

The Program is a contract between Major League Baseball and the Major League Baseball Players Association to deter and punish prohibited substance use. It includes a list of banned substances, provides testing procedures and prescribes certain penalties for violations. The confidentiality clause expressly provides that MLB and the Players Association (as well as others involved in the process such as medical testing personnel and individual team employees) are “prohibited from publicly disclosing information about an individual Player’s test results or testing history, Initial Evaluation, diagnosis, Treatment Program prognosis or compliance with a Treatment Program.”

Although A-Rod, as a member of the Players Association, can waive his individual right to enforce the confidentiality clause against MLB, the Players Association can still enforce confidentiality in the collective interests of its members. And it makes sense that it would do so.  The whole point of confidentiality is to prevent the arbitration of a drug suspension from being tried in the media beforehand.

Opening the floodgates to the type of battle being waged between MLB and A-Rod would set bad precedent for the Players Association to waive confidentiality in other circumstances. So, as much as I am dying to know what evidence the MLB has on him, I understand and agree that it should not be made public.  I guess opposing fans will have to settle for the joy of seeing A-Rod plunked by opposing pitchers for the rest of the season.

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