newjerseynewsroom.com

Share this Digg Del.icio.us Slashdot Furl Blogmarks Diigo Technorati Newsvine Blinklist Facebook Wikio Export PDF Print E-mail Tags canseco baseball class canseco’s hall fame steroids book league major action claims defamation testimony whistleblower federal mlb books generally courts

BY AVI FRISCH

NEWJERSEYNEWSROOM.COM

Jose Canseco, the former slugger and author of two books about steroid use in baseball, has announced his intention to sue Major League Baseball in a class action for his inability to get work and for “defamation of character.”

Does he have a case?

From a procedural perspective, it is pretty clear that this cannot really be a class action lawsuit. Canseco and his attorneys apparently do not understand the meaning of the class action concept.

The federal courts (and state courts, generally) allow lawsuits to proceed as class actions when one of three conditions is met:

1. There is a limited pool of money available to all of the claimants;
2. Separate adjudications would result in inconsistent obligations on the defendant;
3. The class as a group has at least some issues in common which would best be decided for the group.

The third condition is the classic class action, the one where we all get notices in the mail promising one dollar while the lawyers take home millions in fees.

Those interested in the minutiae can check rule 23 of the Federal Rules of Civil Procedure, here.

Does Canseco’s case fit into any of these groups? In a word, no.

The primary problem with Canseco’s description of his case is that it is almost entirely personal to him. There is no class of authors who wrote books negatively discussing Major League Baseball and its association with steroids, and certainly no group that has been generally blackballed from the game for their involvement with steroids, as most players who have been caught with steroids or admitted their involvement are still playing.

In addition, defamation claims are generally quite personal to each individual (for example, Canseco’s reputation would be at issue in his claims of defamation) and courts would not really see any benefit in treating his personal reputation as a class.

Now to discuss Canseco’s actual underlying claims. For each, he has to show that someone has violated a legal right and caused him some damage. His defamation suit appears to have serious problems on its face. Canseco had a poor reputation following his 17-year career in MLB before writing his first book, and then wrote a book describing himself as an avid user, distributor and advocate for illegal steroid use. Even accepting the notion that someone has defamed Canseco, it is unclear what the damage award would be for one who has written self-defamatory works.

In terms of the suit being a tactic to help fulfill his desire to get into the Hall of Fame, which is technically not affiliated with Major League Baseball or any of MLB’s teams, it is unlikely to succeed. As a baseball matter, with or without steroids, almost everyone who follows or writes about baseball would probably reach the same conclusion: Canseco is not worthy.

Considering that the Hall of Fame has a history of regarding character as an issue for enshrinement, and that steroid use clouds the value of Canseco’s achievements, it will be hard for him to prove that the Hall of Fame is retaliating for his book.

Say, however, that MLB and the Hall of Fame were retaliating directly for his book, would that matter? Federal law grants whistleblower protections in a number of cases, and the most important one here is probably the Occupational Health and Safety Act (See OSHA’s page discussing whistleblowers here).

This law grants protections for whistleblowers who protest unsafe practices in the workplace. Use of steroids is unsafe and possibly a violation of the Act if Major League Baseball facilitated their use.

As the law prohibits discrimination by employers, The Hall of Fame is in the clear, as Canseco wants to be honored, but not hired by the Hall of Fame. Major League Baseball and its teams probably are employers, and are prohibited from discriminating against whistleblowers, even if he is not a current employee and is seeking employment. But what sort of MLB job can he prove himself competent to hold? Even Babe Ruth, likely the best player ever, could not get a job in baseball after his playing days.

There is a question as to whether Canseco is a whistleblower. Writing a book is not a protected activity under federal whistleblower laws, so Canseco would have to rely on his congressional testimony as the basis of his claim. The regulations and laws do not mention congressional testimony as an action that would trigger protections, although testimony in other locations would allow a whistleblower claim.

Canseco might have a point that his congressional testimony was a covered activity, since it was designed to improve workplace conditions. Yet, having gone public primarily in books, Canseco’s claims are weak. Finally, Canseco would have to show that he was literally blacklisted from MLB, and not that he just has not gotten phone calls for jobs he hasn’t applied for.

All in all it would seem the suit is most likely to achieve only the result of additional publicity for Canseco, which might be beneficial to the sale of his existing books and any others he might be coming forth with. In legal terms, however, Canseco has a weak case on both his defamation and claims regarding employment.

Avi Frisch is a lawyer in Paramus and Manhattan. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or at his website, www.avifrischlaw.com.