It's been brought up a lot lately: can a team like the New York Yankees or Milwaukee Brewers terminate the contracts of Alex Rodriguez or Ryan Braun because of PED use?
It's a good question to ask. A lot of baseball fans are upset and disappointed that a number of players have gained an unfair competitive advantage by taking substances that make them better, stronger and faster. As Tony Kornheiser once said, PEDs make good players great and great players immortal.
PEDs can also make players rich. At about $450 million, admitted PED user Alex Rodriguez has earned more money than any other major league ball player. Ever.
Braun is still owed $122 million through 2020, with a $15 million mutual option for 2021. Rodriguez is 38-years-old and has $86 million due over the next four years. Presumably, these teams would love nothing more than to get out from under these contracts. It doesn't help that fan backlash has a negative brand impact.
Starting With Player Contracts
So back to our question: Can a team terminate a contract on the basis that a player is found to have done PEDs?
It would be tough - very tough. It doesn't mean, though, that a team can't try. There are things a team could rely on when terminating a player contract.
They would start with the language in the player contract. It provides at Paragraph 7(b)(1) that a team can terminate a contract if a player, "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules."
Also, Paragraph 7(b)(3) of that same contract allows for termination if a player, "fails, refuses or neglect to render his services hereunder or in any manner materially breach this contract."
This language is broad and could allow a team to argue a few things. For example, the team could allege that by doping, a player failed to "obey the club's training rule." The team could also point to PED use as not being in keeping with "standards of good citizenship and good sportsmanship." The team would then take the position that the termination of a player's contract is warranted since the player failed to discharge the obligations under his contract (or put another way, breached his contract).
While not unreasonable, these arguments probably wouldn't be successful. Punishments for PED use are handled by the collectively bargained Drug Policy. That means that both MLB and the Major League Baseball Players Association (MLBPA) negotiated the Policy and agreed it would be used to govern punishments related to testing positive for PEDs. So that's why the Drug Policy is there in the first place. If the sides had agreed to tougher sanctions for PED use and put them in the Drug Policy, then those tougher sanctions would govern. However, they aren't in the Drug Policy. And one more thing - courts don't like it when a business has a specific policy in place dealing with a specific offence and that business then elects to ignore that specific policy and does its own thing. Finally, terms like "good citizenship" and "good sportsmanship" are open to interpretation.
I'm Not Who I Said I am
A team could also claim that a player misrepresented himself at the time he signed his contract. So in the case of the Yankees, they could say that when Rodriguez signed his 10-year/$275 million contract in 2008, they weren't getting the player they thought they were getting; Rodriguez wasn't being truthful about the nature of his abilities and how he achieved such a high level of success. The Yankees could argue that had they known Rodriguez was cheating they would not have signed him. Once again, though, the Drug Policy is in place to deal with PED use. So this argument would be a real uphill battle for Yankees.
A team could also allege the use of PEDs has had an adverse impact on a player's health resulting in serious injuries (for example, according to some experts, the use of PEDs can weaken connective tissue and make athletes more prone to certain types of injuries). So the team could say that the player did not keep "himself in first-class physical condition" since his use of PEDs resulted in injury. However, unless a team can show a direct link between PED use and a player's injury (which is hard to do), they would fail in their bid to terminate or fire a player.
There is another reason that an attempt to kill a contract would be a challenge: the strength of the union.
The MLBPA has a long history of being a strong advocate for its players and vigorously contesting sanctions or punishments imposed on its members. Indeed, players have enjoyed very good success at arbitration on appeal. The MLBA is widely considered the strongest union in sports and one of the strongest unions in North America.
Voiding Contracts: From Drug Trafficking To Strangulation
Case in point: Lamarr Hoyt. In 1987, the San Diego Padres voided his contract after he was sentenced to jail following multiple drug charges, including intent to distribute cocaine and attempting to smuggle drugs from Mexico into the U.S. This would seem to be specifically the type of conduct that would justify voiding a contract - right? Wrong. The Players Association filed a grievance and won.
Back in 2004, the Colorado Rockies' tried to void Denny Neagle's contract after he was charged with soliciting a prostitute. The MLBPA stepped in, and ultimately Rockies agreed to pay him $16 million of the $19.5 million left on his deal contract.
In 2005, the Baltimore Orioles voided Sidney Ponson's contract for driving while intoxicated (as well as some other stuff). The MLBPA grieved, and the sides ended up settling. According to reports, Ponson got a sizable chunk of his $11.2 million salary.
As a member of the Red Sox in 1997, Wil Cordero was charged with assault and battery with a dangerous weapon. Cordero pled guilty to criminal charges for beating his wife and threatening to kill her. Still, the Red Sox decided not to void his contract.
There is, however, an instance where a player contract was successfully terminated. In 2008, Shawn Chacon refused to leave the team dining room to speak with Houston Astros GM Ed Wade in his office. This confrontation ended with Chacon grabbing Wade by the neck and throwing him to the ground. Each time Wade tried to get up, Chacon knocked him back to the ground. Chacon's contract was terminated with cause. The move was appealed by the MLBPA, but the appeal was unsuccessful.
So short of strangling your employer, it can be tough to successfully terminate a contract (even then, Latrell Sprewell only got 68 games for choking NBA coach P. J. Carlesimo).
Overall, a team would have a difficult time terminating a contract if a player was found to have used PEDs. It doesn't mean a team can't try with the end game being a favourable buyout. It just means that a team would have an awfully tough time terminating the contract.
Eric Macramalla is TSN's Legal Analyst and can be heard each week on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.