Re: OK, Neirpoint...


David M. Nieporent wrote:

Why not???

Well, the legal answer is because no law requires me to do so.

You do realize that there at least were states which required one to
report rape, at the cost otherwise of being charged with an accessory
crime or somesuch.

[Snip irrelevant discourse about medical marijuana]

Hey, you brought up marijuana! I just wanted to clue you in on a few
things in your example.

If you witness a crime and do not report it, there can be legal
ramifications, especially if you are in a supervisory position and harm
comes from the crime you failed in your duty to report.

Leaving aside that I doubt Bud Selig witnessed any crime at all -- I doubt
he hangs out in the bathroom stalls in the locker room or in the private
homes of ballplayers

Wouldn't have to. Knowledge of the problem and covering it up would be
enough.

Your employer is not legally
required to fire you from your job if he suspects you're smoking marijuana.

Then the employer is in violation of the law (and, I would assert, even
the contract he had you sign when you took employment).

This is completely wrong. The employer is not in violation of any law or
any contract in the scenario I described.

I can't come up with any job that I've applied for in the last five
years which does not have a drug testing clause therein, if not in the
contract, in the APPLICATION!

You also have no understanding of "at will" employment either.

Not only are you wrong, but we're not talking about at will employment.
That's the whole problem here: you don't grasp that there's a contract in
place.

You don't grasp the problem that the contract -- or at least the
portion thereof -- is illegal if it allows people to break the law so
flagrantly. Or would you be another in this country who believes that
one can sign away their obligations to abide by the law?

And, if I've contracted with you to do a job, I can't breach it because I
suspect you're smoking marijuana.

That, to me, shows your stupidity, unless you're actually willing to
explain that one to your insurance company if my (hypothetical) use of
marijuana creates a claim with said company.
Come on; you should be smarter than that!

I think my insurance company already understands the concept of breach of
contract. If you'd like to take lessons in it, my hourly fee is $245/hour.

I'm not just talking about breach of contract here, Neirpoint. I'm
talking about, hypothetically, if I'm high and loving it and create an
accident because I'm high, your insurance company may want to know why
you let me continue to work on your site if you knew I was high.

Just like: Who was the biggest bitching in Congress for baseball's
steroids problem reserved for? The Commissioner!

Yes, of course. I write them all the time. As with most legal
terminology you use, that phrase doesn't mean what you apparently
think it does, though.

It simply means that some of the contract can be removed and the rest
left alone.

Yes -- but it's a provision that _must be negotiated into the contract by
the parties._ It's not something automatic about a contract.

It's been automatic in every contract I've ever signed of one form or
another. Unless they'd really like to go the route of nullifying the
whole damn thing for one small fart in the fine print!

I mean, consider: If Congress had the right to nullify the steroid
policy and institute one of their own, and there were no severability
clause, their only alternative would be to wipe out the entire CBA!

(Now, whether Congress has the legal authority to do that is one of the
things we're talking about.)

And in any case, the contract isn't "illegal." Last I checked, playing
baseball was legal in the United States.

... provided that the players act in a legal manner in doing so.

That a person breaks the law does not make contracts he entered into
"illegal." Whether a contract is described as illegal depends on the terms
of the contract.

If the person is conducting themselves in an illegal manner to enter
the contract (misrepresentation), it renders the contract illegal, and,
often, null and void.

In your world, you've already accepted roids as a price of
admission to the game.

Testing showed about 5% of players using banned substances. I guess about
95% of players managed to get admitted to the game without them.

The testing is bull*** and you know it. Don't even pass those off as
legitimate numbers.

He then has ZERO power, especially in the cases where the contract
contradicts Federal Law.

The contract doesn't contradict federal law.

The apparent inability of the Commissioner to police violations of it
does.

False. No federal law requires the Commissioner to police steroid use.
There is no contradiction of federal law.

How about the federal law banning steroids? I, again, assert to you
Congress' bitching-out of the Commissioner last year. They believed he
has a responsibility to police steroid use in the game, therefore they
believe he has the power to do so as well!

Worse, Congress has no power to step in.

That's completely wrong and doesn't follow in the slightest bit from the
discussion we're having. That the commissioner doesn't have power does not
mean Congress does not have power. The commissioner's power is purely
contractual; Congress's power is legislative.

Wrong. You (or one of the other apologists) asserted that the power of
the contract overrides the Federal laws against steroid use --

False. You misunderstood. Nobody said that. What we're trying to explain
to you is that the power of the contract _limits what the commissioner can
do about it._

I was going, more, back further to the argument you make about NLRB
labor laws having the same standing as Federal Law. In fact, in this
case, the NLRB rulings you assert limit the Commissioner from being
able to do much of anything about anything (Hell, they're even
appealing a $5K fine for Bonds about his *wristbands*!) would trump the
federal law against steroid use.

at least
vis-a-vis baseball. How can Congress legally step in unless it wants
to run afoul of the NLRB in court, under that assumption?

The NLRA governs relationships between employer and union. It has nothing
to do with Congress.

You said the NLRB rulings have the same standing as Federal Law...

Worse still, the players' union could go to court and say the entire
steroid policy is the fruit of an illegal tree (force by Congress
outside THEIR bounds).

That is complete gibberish. Those are all English words, and they're
basically used in order to construct grammatical sentences, but the content
makes no sense.

Why not? You do understand "fruit of an illegal tree", do you not?

Actually, no. The phrase you're looking for is "fruit of the poisonous
tree," but it has nothing whatsoever to do with this context. It's the

Why not? You have to answer the question, otherwise (and I've heard it
said as a "fruit of an illegal tree", but now we're just parsing words
in the specific sense), as to whether Congress would have the right to
throw out the portion of the CBA regarding steroid penalties and the
level of testing which the game must abide by.

If the answer to that question is "no" (again, it would be a question
of NLRB stuff as Federal Law vs. Congressional jurisdiction), then one
can easily conclude that 50/100/life, as a direct result of that
pressure from Congress ("Either you do this or we institute
2-year/life) last year, then they can throw out the whole policy.

doctrine that says that if police conduct a search in violation of the
fourth amendment, any evidence later developed as a result of that search
is inadmissible

Specific to criminal cases, yes -- but there are other applications.

If I were to take your stand in the steroid fight, I would be wanting
Don Fehr to do the following:

1) The steroid investigation (itself, not just Selig acting upon its
results) is illegal, as it oversteps the bounds of the Commissioner
with respect to the CBA. It uses evidence from beyond what baseball
has legislated with respect to steroids, and hence has no force of law.

.... or would you assert, Neirpoint, that "Game of Shadows" is within
the bounds of the CBA and the steroid policy, when it goes back to late
1998-99 for Bonds, as well as implicates other players as well.

2) The entire steroid policy is _now_ illegal, since it was negotiated
under duress from an entity with no legal right to step in and
invalidate a collective bargaining agreement (talking Congress here).

Neither of which argument makes sense. You confuse "illegal" with
"violation of contract" left and right, and you misunderstand the powers of
Congress.

See above. Answer the question as to whether Congress has the power to
nullify (at least a portion of) the baseball CBA (and get away with it
with the NLRB).

Saying that "the steroid investigation is illegal" simply illustrates
another one of your problems: your tendency to make incorrect sweeping
statements when more specific ones might be right. What is an
"investigation"? It could consist of asking questions, or conducting
searches of private property, including urine or blood tests.

I am talking the entirety of the Mitchell investigation. I can't
answer the question further before I know what he's going to do.

The commissioner can ask questions. The question is what he can do if people
don't answer. If they're major league players, the answer is nothing. If

Why can the commissioner even do that and NOT do more? (This probably
is covered somewhere in the bowels of the CBA...)

they're minor leaguers, coaches, managers, or team executives, then he can
punish them. The commissioner can request that people consent to searches.
The question is what he can do if people don't consent. If we're talking
about major leaguers, the answer is that he can do what the collective
bargaining agreement says. If we're talking about minor leaguers, coaches,
etc. then he has more power.

So he, effectively, is the Commissioner of Minor League Baseball.

Of course he does. He just can't use it in ways that constitute breach
of contract.

Then he has no power to administrate the game.

Of course he does. He just can't use it in ways that constitute breach of
contract.

If the only way he can do that is to override the contract in the best
interests of the game, then he has no power to administrate the game.

You asked earlier
whether I felt the Commissioner was a dictator. Perhaps you need to
read your baseball history and know that was the only way the office
was even CONSTRUCTED.

Actually, I don't think I asked whether you felt that; I pointed out that
you seemed to feel that, but that it was wrong. This isn't 1920.

The entirety of the power of the Commissioner was that he was the final
and undisputed word. Take that away, he has little else...

Mike

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