A Lesson for Contract Drafters from the A-Rod Dispute

Via prolific tipster Steven Sholk, I learned of this post, by Nathaniel Grow, on Sports Law Blog about baseball player Alex Rodriguez’s legal maneuvering in response to his being suspended by Major League Baseball for having taken performance-enhancing drugs.

Here’s the part that caught my eye (hyperlinks omitted):

However, as the arbitration decision reveals, Rodriguez’s suspension was not based on Section 7.A, but instead on Section 7.G.2, under which a player is “subject[] to disciplinary action for just cause” for “any violation … not referenced in Section 7.A through 7.F.”

As Fangraph’s Wendy Thurm has pointed out, this reliance on Section 7.G.2 is somewhat curious.  Based on its express language, Section 7.G.2 only applies in cases where there has not been a violation of Section 7.A.  Section 7.A, meanwhile, expressly applies in cases where a player “tests positive for a Performance Enhancing Substance, or otherwise violates the program through the use or possession of a Performance Enhancing Substance,” the latter half of which seemingly would apply to the facts of the A-Rod case.  Arbitrator Horowitz concluded that Section 7.A did not apply to Rodriguez, though, because A-Rod was not accused of using a single prohibited Performance Enhancing Substance, but instead of using three different banned substances.  In such a case, he determined, punishment pursuant to Section 7.G.2 was warranted.

Horowitz’s reading of the JDA runs contrary to normal rules of interpretation, under which singular nouns are typically assumed to include the plural form, and visa versa, unless the context indicates otherwise.  In other words, the term “a Performance Enhancing Substance” would normally refer not only to the use of a single banned substance, but the use of multiple prohibited substances as well.

Horowitz’s decision justifies his unusual interpretation of Section 7.A as follows:

MLB, the MLBPA, and the Player agree that Section 7.G.2 of the JDA supplies the governing framework for this case. The record establishes that cases such as this, involving continuous and prolonged use or possession of multiple substances (as opposed, e.g., to a single positive test), were intended to be handled under Section 7.G.2 rather than Section 7.A.

Welcome, friends, to ambiguity relating to whether singular means plural.

If Nancy tells Little Joey, “I’ll spank you if you eat a cookie,” presumably neither Nancy nor Little Joey would countenance that eating two or more cookies would allow Little Joey to escape punishment.

But in the world of contracts, a disgruntled contract party, or anyone looking to achieve a particular goal, won’t hesitate to bring to bear a narrow literal-mindedness. That’s might be what happened here.

So MSCD 13.752 recommends as follows:

Whenever you’re drafting a provision that refers to a thing or an unnamed person, consider whether you want that provision to apply (1) regardless of the number of things or persons, (2) only with respect to one thing or person, or (3) only with respect to more than one thing or person. More often than not, the first meaning is the one you’ll want to convey. In that case, make it explicit. Whoever drafted the language at issue in Coral Production could have accomplished that by using the phrase one or more, as in “one or more non-affiliated persons.”

To make it clear that it conveyed meaning (2) in the MSCD extract (that’s the meaning attributed to it by Horowitz), I would have had section 7.A refer to “no more than one Performance Enhancing Substance.” To make it clear that it conveyed meaning (3), I would have had it refer to “two or more Performance Enhancing Substances.”

Posted in Ambiguity | 5 Comments

  • Chris Lemens

    Ken:

    I think, in your last sentence, you intended to say:

    To make it clear that it conveyed meaning (3), I would have had it refer to “more than one Performance Enhancing Substance.”

    If not, I’ve missed your point.

    Chris

    • http://www.adamsdrafting.com/ Ken Adams

      Actually, that’s the one meaning not permitted in the original.

      • Mark Bembnowski

        I’m with Chris on this one… Your last sentence does not appear to agree with meaning (3):

        “(3) only with respect to *more than one* thing or person”

        • http://www.adamsdrafting.com/ Ken Adams

          Aaargh, you’re right! Thanks. I switched my brain on and fixed it.

  • AWrightBurkeMPhil

    The quotation from MSCD3 says: “More often than not, the first meaning is the one you’ll want to convey [that is, "one or more" persons or things]. In that case, make it explicit.”

    Agreed. But adding “one or more” before every occurrence of the noun is not the only way to make the meaning explicit, and maybe not always the best way, especially if the noun occurs frequently in the contract.

    Another way is to include a rule of interpretation (example: “singular means ‘one or more'”). This eliminates the clutter of frequent “one or mores” (since that’s the default meaning), but requires occasional on-site clarifications when the drafter intends a non-default meaning. The net effect should be clarity without clutter.

    The converse is also true. If the term (say, “Performance Enhancing Drug”) occurs seldom, say “one or more” at each occurrence and avoid the need for a provision governing interpretation of the singular.