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A-Rod, Rihanna, and Confidentiality

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9 Responses

  1. A.W. says:

    I have to admit I was surprised that baseball’s testing rules were so toothless. “Hey, as long as less than one out of twenty people cheat, it’s okay.” Well, glad you cleared that up. As for the issue, A-rod better not have me on the jury because he would never get a recovery of more than $1 for this if I had my say.

    Seriously, why on earth should we respect the “confidentiality” of baseball cheaters? Why should the law see a public interest worth protecting with damages to the Rod?

    As for Rhianna, I don’t know. Shouldn’t the other women of the world know what might happen to them if they date Chris Brown?

    I guess I am the kind of guy who prefers to know these kinds of things, across the board. I am not saying there are no private facts, but where there is a plausible public interest in knowing, I prefer to know.

  2. Why should we ‘respect’ confidentiality? Because that was the condition under which the sample was given. If you agree to something under certain conditions, you should expect those conditions to be fulfilled. In addition, morally, I believe it diminishes our dignity as human beings. Sure, Rodriguez’s actions diminish his own dignity but that does not in mean ‘anything goes.’ My take on this and a couple of other connected stories here: http://ubisurv.wordpress.com/2009/02/16/the-loneliness-of-personal-data/

  3. Why should we ‘respect’ confidentiality? Because that was the condition under which the sample was given. If you agree to something under certain conditions, you should expect those conditions to be fulfilled. In addition, morally, I believe it diminishes our dignity as human beings. Sure, Rodriguez’s actions diminish his own dignity but that does not mean ‘anything goes.’ My take on this and a couple of other connected stories here: http://ubisurv.wordpress.com/2009/02/16/the-loneliness-of-personal-data/

  4. A.W. says:

    > Why should we ‘respect’ confidentiality? Because that was the condition under which the sample was given. If you agree to something under certain conditions, you should expect those conditions to be fulfilled.

    Except that 1) the cheating represents a breach of contract more than likely nullifying the contract in question and 2) if baseball had any, um, balls, they wouldn’t let them play unless they submitted to the testing. Seriously, why should this multi-millionaire cheater get one red cent from anyone over this?

    > In addition, morally, I believe it diminishes our dignity as human beings. Sure, Rodriguez’s actions diminish his own dignity but that does not in mean ‘anything goes.’

    To know he cheated? Um, no. We should know who cheats and throw them out, so our children are not taught that it is okay to behave immorally.

    Really, morality is against the big Rod on this one.

  5. Is it okay to cheat to catch a cheat? Is it better to have ‘the truth’ however you obtain it? It seems to be your assumption, AW, that it is. But why is it any better as a lesson to teach children that they have no privacy and that agreements made in confidence mean nothing?

    I remember a long time ago when I lived in the States there was a case, I think in Virginia, in which someone had made a secret video recording of their neighhours engaging in a sexual act that happened to be illegal in that state. They sent the video to the police and the couple got prosecuted. I don’t recall the outcome.

    Now my view is that the people who spied on their neighbours should have been utterly shunned by everyone. It was an action utterly against the spirit of privacy and human dignity. Do you also think that this action would be justified? How far do you thing surveillance and spying should be allowed to go so long as the outcome is something with which you happen to agree? Where is the line drawn?

    The point of the sampling inthe Rodriguez case was to gain a general idea of the level of substance abuse in baseball, it was not to catch individual cheats. I am not making any comment on the issue of drugs or drug-testing of individuals in sports, which is not really the issue here. Neither my nor your opinions on that are really relevant to the case in hand.

  6. Kaimi says:

    The document in question is under seal (and the subject of litigation about its confidentiality). The people with access to it are people who have a very serious professional obligation *not* to talk to an SI reporter about it.

    The original SI story reported on people (A-Rod) who broke serious rules, thinking that they would not be caught.

    Under the same standard, the reporters should name their own confidential sources for the story. Those sources also broke serious rules, thinking they could get away with it. (Unless the reporter’s sources are people other than those required to keep the information confidential.)

  7. A.W. says:

    David,

    > Is it okay to cheat to catch a cheat?

    First breach is one of the most basic defenses to breach of contract. And it bears a psychological similarity to the clean hands doctrine. As is the doctrine that one should never profit from their wrong.

    > But why is it any better as a lesson to teach children that they have no privacy

    A-rod has a much a right to privacy as a worker at Target (they drug test there, you know).

    > and that agreements made in confidence mean nothing?

    In the law we often say that certain contracts are just unenforceable. A contract with a minor, is unenforceable against the minor. A contract under duress, including a hostage situation, is unenforceable against the person under duress. A contact with an illegal purpose. You can make a deal in confidence to buy drugs or sex, but if you are cheated, well, tough on you. The law will not help you to enforce it.

    The fact is that the practical effect is only to keep drug use secret. If someone had leaked that the Rod had not used drugs, no one would have cared and there would have been no case. I fail to see how it can be okay in the law to say we will not enforce a drug deal itself, but it is over some line to say we will enforce a deal to protect a drug user. The only distinction is I am not sure what he juiced himself up with was illegal, but it certainly was immoral.

    Which is not to say that the precedents directly require this outcome. But as a matter of policy, that is the shape I would like to see the common law take.

    By the way, the sanctity of contracts hasn’t been what it was for years. the further north you go, more or less, the less they are honored when the outcome is disliked. And in general I oppose this trend, but the idea of a rich baseball player who got rich cheating then getting richer because someone revealed his cheating is manifestly unjust.

    Like I said the first time, if I was on the jury his maximum recovery would be $1.

    > Now my view is that the people who spied on their neighbours should have been utterly shunned by everyone.

    Well, how did they do it? how did they find out this was going on? What was the nature of the conduct? Without some details, its really hard to analyze your example.

    Kaimi

    > Under the same standard, the reporters should name their own confidential sources for the story.

    I think there should be zero legal recognition of a “reporter’s privilege.” As the court noted in the Nixon executive privilege case, every privilege defeats the ends of justice, allowing the guilty to go free, and the innocent to suffer.

  8. A.W. says:

    David

    I will add that this “contractual” privacy, as it is, wouldn’t stand up in a court of law anyway. If the drug records were ever subpoenaed, they couldn’t hold up the contract and assert a privilege. So i see no good reason to say it should nonetheless be upheld if it was revealed by a method less than a subpoena.

  9. A.W. — At the time of the contract, it was known that those testing positive were “cheaters.” Note that at the time of the contract, the league was explicitly agreeing that those testing positive would remain confidential, and this was put into the contract to entice the players to agree to the testing.

    If such contracts would be unenforceable, I wonder whether the union would have agreed to the testing. The very arrangement under which the testing took place was premised on the contract. If such contracts are unenforceable under your moral theory, then it would severely impair such testing and might have resulted in an impasse in the bargaining. Although some contracts are held unenforceable because they are unconscionable, most are not. Your approach to contract law would radically alter the law of contracts, allowing courts to decide, based on their own sense of morality, which contracts they like and which they don’t. I wonder whether your regime would really be preferable to the one we have where contracts are generally enforced with only a few narrow exceptions.

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