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.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. PD Shaw says:

    The problem here is that A-Rod has suffered a reputation injury. That is a rather different kettle of fish than improper disclosure of a business idea; something that can be readily monetized, if not by looking at the profits of the business that got to use the leaked confidence.

    What is a man’s reputation worth? What is his character worth? Is disclosure of A-Rod’s habit worth more than a minor-leaguer? Does A-Rod’s own conduct suggest that he didn’t value his own reputation that much?

  2. tom p says:

    I just don’t see it happening… This is a PR matter. Yes he was damaged, but suing somebody for telling the truth is not good PR.

  3. tom p says:

    Now, if the Union sued….

  4. Triumph says:

    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.

    I’m not following this story too closely, so I may have it wrong; but, I think the story is that the tests weren’t really “anonymous” in the first place–but that the results were to be destroyed. MLB claims that shortly after the tests were taken–but before the results were destroyed–the feds issued an order forbidding them from destroying any evidence pertaining to steroid use.

    This order may have been in relation to the Balco case.

    I think it was the Union–actually–which was supposed to keep the confidentiality sacred.

  5. DL says:

    Has MLB damaged A-Rod’s reputation has A-Rod and no one else cause it? Haven’t we yet understood this game of being a guilty victin is destructive of all of society. If you did it -there’s a cost coming.

    Adam’s line to God ….It was that woman YOU MADE for me…..

    Things never change.

  6. tom p says:

    I think it was the Union–actually–which was supposed to keep the confidentiality sacred.

    Triumph, now that you mention it, I think I recall something along the same lines. Admittedly, I have not followed this all that closely either.

  7. Steve says:

    Yes, it was the Player’s Union that screwed up. Here’s a good column that explains what happened.

  8. Rick Almeida says:

    Steve’s SI link is very informative.

    Assuming it’s true, it seems like Orza might have committed a tort against Rodriguez by choosing not to destroy the list for the purpose of subverting the test results.

  9. Ben says:

    The problem here is that A-Rod has suffered a reputation injury. That is a rather different kettle of fish than improper disclosure of a business idea; something that can be readily monetized, if not by looking at the profits of the business that got to use the leaked confidence.

    What is a man’s reputation worth? What is his character worth? Is disclosure of A-Rod’s habit worth more than a minor-leaguer? Does A-Rod’s own conduct suggest that he didn’t value his own reputation that much?

    People sue for slander and libel all the time, and these are also crimes that primarily damage reputation and future earning potential. I’m sure there are standard values for calculating the damages

  10. Eneils Bailey says:

    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.

    Who cares?

    I have not watched or attended a major league baseball game in over twenty years.
    And this is from a person who used to wait for the morning and afternoon paper so I could scissor out the box scores of the NY Yankees.
    Mantle, Maris, Berra, Ford etc.; I lived and died by their stats.
    They never took drugs, all they did was go out the night before a game and get pissy-ass drunk. Gotta love baseball players that would wake up in the morning, could not find their ass with both hands, and then puke on the first-baseman’s shoes when they beat out an infield single.