Should A-Rod Sue?
Daniel Solove argues that Alex Rodriguez has a very good basis for a lawsuit against Major League Baseball for failing to safeguard information about his positive steroids test:
Professor Neil Richards and I have written extensively about breach of confidentiality. The tort is recognized in most states, and it provides for liability whenever one owes a duty of confidentiality and breaches that duty. We observed, however, that the tort has remained “relatively obscure and frequently overlooked” in American law. In contrast, in England, the tort is robust and applies quite broadly.
I believe that A-Rod would have a strong case for breach of confidentiality. The A-Rod situation demonstrates why an action under the tort of breach of confidentiality might be preferable to an action for public disclosure of private facts. The public disclosure tort doesn’t apply to newsworthy information, and the fact A-Rod took steroids is newsworthy. The breach of confidentiality tort doesn’t have a newsworthiness limitation. The reason why it doesn’t is that the tort remedies a different kind of harm than the public disclosure tort. Breach of confidentiality protects confidential relationships, which often involve highly newsworthy information. Businesses hire workers and depend upon their keeping information confidential. Doctors, lawyers, accountants, and others form confidential relationships with patients and clients. In a lot of cases, the information is newsworthy, such as when it involves public figures. The law protects patient confidentiality even when the patient is a public figure because of the value of protecting the patient-physician relationship. The public disclosure tort ensures that people’s private information which is not of legitimate concern to the public be protected from disclosure. On the other hand, breach of confidentiality is not only about shielding one’s private life — it is primarily about ensuring trust in relationships and ensuring that promises and expectations of confidentiality are maintained and respected.
I’ll take Solove’s word on the legal merits, in that this is an obscure tort and I’ve got only an interested layman’s knowledge fo the law. As a pure matter of equity, however, A-Rod certainly has a grievance.
Yes, he’s a cheater. But the Player’s Union agreed to comprehensive testing in 2004 only on the basis of absolute confidentiality. Major League Baseball violated its trust, both to A-Rod’s detriment and its own, having severely tainted arguably its most marketable star.
Why MLB didn’t conduct the testing anonymously and/or destroy the records after having gotten the desired aggregate level results, I don’t know. But they’ve certainly damaged A-Rod’s reputation and future earning power as a result of its misfeasance.