MLB The Murky Waters of MLB's Latest Steroid Case By Jonah Keri on June 5, 2013 10:24 AM ET
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Major League Baseball has reportedly compelled former Biogenesis proprietor Tony Bosch to testify in the league's case against roughly 20 players accused of performance-enhancing drug use. The list of accused players includes Alex Rodriguez, Ryan Braun, Melky Cabrera, Nelson Cruz, Bartolo Colon, and Jhonny Peralta.
The report from ESPN's Outside the Lines marks the latest development in a scandal first reported by the Miami New Times in January. The New Times wrote that Rodriguez, Cabrera, Colon, and Yasmani Grandal headed the list of players who allegedly bought PEDs from Biogenesis. All four of those players had either admitted to using PEDs in the past (Rodriguez) or been suspended for PED use (Cabrera, Colon, and Grandal) when the report came out. Two other major league players not previously linked to PED use, Gio Gonzalez and Cruz, were also named in the report.
Now there are three major, new items in play.
The first is a sharp jump in the number of players named as being in MLB's sights. The full list of players being investigated by the league has Rodriguez, Braun, Cabrera, Colon, Cruz, Grandal, Peralta, Everth Cabrera, Francisco Cervelli, Jesus Montero, Fernando Martinez, Fautino de los Santos, Jordan Norberto, and Mets minor leaguer Cesar Puello. The OTL piece noted that MLB is still sorting through various player codes allegedly recorded by Biogenesis, which could yield even more names. Meanwhile, both the initial New Times report and the latest OTL report cited sources claiming Gonzalez could be exonerated, since the substances he allegedly purchased from Biogenesis were legal.
The second is the strategy MLB plans to deploy in its efforts to get some of these players suspended. A source told OTL that the league might seek 100-game suspensions for Rodriguez, Braun, and others. The argument for assessing the penalty for a second-time offense (first-time offenders get 50 games) is that the players' connection to Bosch would amount to one offense, while denying any connection to Biogenesis or PED use would be another. MLB has had Braun in its crosshairs since he reportedly tested positive for a performance-enhancing substance in late 2011, only to have that suspension overturned on appeal.
The third is Bosch's reported cooperation. In late March, MLB filed a lawsuit in Miami-Dade Circuit Court against Bosch, Biogenesis, and other associates of the now-defunct clinic. Writing for FanGraphs, Wendy Thurm, a former litigator specializing in complex civil and white-collar cases, explained the basis for the complaint, which you can view here. Baseball relied largely on reports done by the New Times, ESPN, and Yahoo in forming the basis for the suit. The league tried, and failed, to get the New Times to turn over the documents it used in its investigation as a way to build its case against the players it was targeting. By going after Bosch instead, the league hoped to find a weaker link, someone who would crack under the threat of a lawsuit and thus play ball. Three weeks after MLB filed its suit against Bosch and Biogenesis, the New York Times reported that baseball had bought documents from Biogenesis employees. With Bosch reportedly teetering on the brink of financial ruin and fearing criminal prosecution, he now appears ready to cooperate. That cooperation could include authenticating the Biogenesis documents that MLB possesses and possibly offering additional testimony to implicate the already-named players, and maybe others, too.
So many questions and variables remain in this case that we're going to break this down with a Q&A:
MLB apparently hopes to suspend multiple players for PED use, with the sum total of evidence being unverified records provided by Biogenesis and Tony Bosch's testimony. Is there a precedent for that kind of suspension — one without any positive tests — in baseball?
Yes. As I wrote in January:
Baseball's Joint Drug Agreement [PDF] does allow the league to suspend suspected PED users based on "just cause." Five years ago, MLB suspended Braves outfielder Jordan Schafer for HGH use without a failed drug test. At the time, MLB spokesman Mike Teevan justified the suspension by saying, "We have non-analytic means of identifying players. He falls under that category."
In the current case, MLB expects Bosch to verify the authenticity and accuracy of documents linking the named players to the use, possession, sale, and/or distribution of PEDs. OTL's report implies that Bosch's testimony could be enough to further or maybe even clinch the league's perceived attempt to issue multiple suspensions.
One thing MLB seems determined to do is suspend multiple players twice for actions relating to the same offense, namely taking PEDs and then lying about not having taken them. Could that strategy work?
It's probably going to be extremely difficult. For one thing, baseball has never tried this. For another, the union will likely mount a hellacious challenge to that approach. More on this in a bit.
Melky Cabrera, Colon, and Grandal have all already served suspensions for violations of the league's drug policy. Is this kind of double penalty covered anywhere in the Joint Drug Agreement? If not, on what grounds would the league propose to have a double penalty (i.e., 100 games for first-time offenders rather than 50) stick?
This strategy could also become problematic. As Thurm explains, unless authenticated and verified Biogenesis documents link a previously suspended player to use, possession, sale, or distribution of PEDs separate from the drugs that had triggered earlier positive tests, a second suspension could amount to a second punishment for the same, initial violation. If MLB were to adopt the A-Rod–and–Braun approach, it could seek both the PED-use penalty and the lying penalty against Cabrera, Colon, and Grandal. All three have already been suspended once, and two more suspensions would equal three, which, according to MLB's drug policy, would trigger a lifetime ban. Since it's not at all clear if Cabrera, Colon, and Grandal violated the league's policy in an incident separate from the one for which they've already been nailed, there's an absurd scenario by which they could be forever stripped of their ability to play in the majors as a result of, essentially, a single transgression.
In light of MLB's investigation and the suspensions that might follow, what would be the logical legal step for the players' union to pursue?
The collective bargaining agreement leaves little room for legal attacks in the courts by either side, outside the process created by the CBA itself. MLB reportedly considered a legal attack on arbitrator Shyam Das's decision that Braun's positive drug test had not complied with the process established in the Joint Drug Program for the collection, maintenance, and testing of urine samples. The league didn't pursue this in the courts. Instead it simply canned Das after 13 years of service in arbitration cases.
Still, as Thurm added in an e-mail sent to Grantland last night: "I could envision a legal attack by the players' union that, by suspending several players at the same time based on documents but not positive tests — MLB acted ultra vires — beyond the powers granted to them under the CBA."
Who is Cesar Carrillo and why should we care about what happened to him?
He's a prospect in the Tigers system who was suspended for 100 games without pay in March because his name reportedly appeared in documents compiled by Biogenesis. Since neither the MLB Players Association nor any other union offers protection for minor leaguers, Carrillo was forced to simply accept the punishment without any recourse for fighting it. Puello, the Mets prospect named in OTL's latest report, could face a similar punishment without any ability to challenge it.
There are many reasons for minor league players to consider forming a union, ranging from many players' sub–minimum wage pay to their lack of protection from any MLB rulings against them. But it's likely that parent teams would attempt to crush any attempt by minor leaguers to unionize, thus condemning rank-and-file non-prospects to making a few hundred bucks a month at the lower levels without the benefit of significant signing bonuses, while ensuring that neither non-prospects nor future Mike Trouts have any kind of bargaining power as long as they toil in the minors.
What does Major League Baseball hope to accomplish here?
As noted in the OTL piece by T.J. Quinn, Pedro Gomez, and Mike Fish: "If the suspensions are upheld, the performance-enhancing drug scandal would be the largest in American sports history."
Baseball shifting from a see-no-evil, hear-no-evil approach to PED use in the '80s, '90s, and early aughts to a more vigilant method today is generally a welcome change. There's certainly merit in fostering an environment in which everyone, from fans to non-using players, can feel confident that some players aren't seeking some kind of forbidden competitive edge. But as I wrote in January, there's a difference between respectable vigilance and taking unsavory shortcuts in an effort to mount players' heads on the wall. The lawsuit that MLB filed against Biogenesis alleged that the clinic had caused harm to baseball's finances and its reputation by supplying PEDs to major league players. There's no evidence to support either of those claims. Rather, the suit was a naked and specious attempt to get Biogenesis and Bosch to turn over the documents it reportedly had linking various players to alleged PED use. That's leaving aside the merit of testimony from a man who appears to be rather unreliable, if the sequence of events reported by various media outlets is accurate.
Overall, it appears that this investigation is an overzealous reaction to all that has happened before. Fifteen, 20 years ago, the league and mainstream media were both content to let players smash home runs and fire 97-mph fastballs while said players consumed performance-enhancing substances; the league hadn't properly codified which substances were allowed and which ones were not, while the media wrote fawning profiles of players who were later found to have used. No one likes to get duped, especially publicly. So we got an onslaught of hysterical articles slamming the league and its players for the spread of PED use. And now we have a league determined to beat back any criticism of its policies, even if it means suspending minor leaguers with flimsy evidence because they can't defend themselves, firing arbitrators for making honest decisions with which the league didn't agree, and building cases based largely on the testimony of a broke alleged drug dealer.
All of this reads like a man who seems determined to change his legacy from being the commissioner under whom everybody took steroids to the commissioner who cleaned up baseball. Which would be ironic, considering that Bud Selig's accomplishments actually look pretty damn good in other areas, all things considered. Baseball's total revenues are expected to hit $9 billion next year. We've seen a gigantic boom in franchise fees and TV revenue, with many owners also securing sweetheart deals from local governments for pretty, new stadiums (a morally distasteful tack, maybe, but one that certainly benefits the sport's financial health). Baseball has parity, it has exciting, new superstars swimming into our lives seemingly every other day, and it has fans who are supporting all of it. But instead of talking about all the great baseball being played on the field, we're heading back to more public hand-wringing over what's happening off it — not necessarily with just cause.
What's the worst-case scenario here?
Other than trampling on due process and casting a stain on the game? The answer could be an end to 20-plus years of labor peace.
The league and the players' association might disagree a bit here or there on some solvable issues. But if the union believes MLB is using shady means to railroad some of its most prominent members, things could get ugly. The last time baseball had a labor stoppage was also the worst such instance in the sport's history. In 1994, a player strike triggered by the unwillingness of high-revenue teams to share money with their lower-revenue counterparts led to the cancellation of the final seven weeks of the regular season, as well as the playoffs and the World Series — the first time in 90 years that baseball didn't stage its Fall Classic. At a time of labor peace and unprecedented wealth, no one wants to think about the possibility of another strike, let alone the threat of missed games — let alone postseason games. But if MLB continues down this path, the chance of that happening could go from essentially zero to "not impossible."
Assuming he keeps his word this time, Selig is set to retire after the 2014 season. The current collective bargaining agreement is due to expire two years after that. Even if all the currently accused players do get nailed, baseball, like every other sport, will likely still have some players continue to use PEDs — thus nullifying the dream of a commissioner who sought to stamp out steroids. Instead, Selig's final legacy could be that of a commissioner who caused a labor war that never should have happened, thus thrusting the sport's well-being into doubt for no good reason.
Well, unless you think skinning Ryan Braun's hide makes it all worthwhile.
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