Can the Players in Mitchell's Report Sue?

Dec. 14, 2007 — -- Former Sen. George Mitchell released his report Thursday on the use of performance-enhancing drugs in baseball. The release of Mitchell's report was followed by news conferences and statements by MLB Commissioner Bud Selig and MLB Players Association executive director Donald Fehr. Mitchell's report raises a number of questions on legal issues. Here are some of the questions and their answers:

Although Mitchell names players who allegedly used performance-enhancing drugs, he suggests that these players should not be fined or suspended. He says it is better to focus on the future than to waste effort on "contentious disciplinary proceedings." Are there legal reasons for Mitchell's recommendation?

Yes. There are two powerful legal reasons for the recommendation, reasons that might be the real rationale for his suggestion. First, if Selig tried to suspend players named in Mitchell's report, Selig would face instant demands for arbitration from the players union. MLB officials would face serious problems resulting from the rapidly evolving policy on steroids and HGH, and would have serious legal problems for suspending a player for something that was not yet a violation of the rules. It would be difficult for MLB to navigate the thicket of rules changes and produce a winnable case on any discipline. Second, and more importantly, Mitchell's recommendation will avoid any legal test of his evidence and of his conclusion that a particular player used these drugs. Without suspensions or fines, the union would be unable to attack Mitchell's evidence, cross-examine his witnesses and test his conclusions. Without arbitration over a suspension, Mitchell's allegations remain in force and in effect without anyone's ever testing them.

The recommendation against suspensions or fines insulates the commissioner from embarrassing difficulties in arbitrations with the union and avoids what could be an embarrassing test of the sufficiency and legality of Mitchell's evidence.

Mitchell places heavy reliance upon the word of Kirk Radomski, a former New York Mets clubhouse attendant. What is the legal value of Radomski's evidence?