Arbitrator’s Decision On Rodriguez Suspension Leaves Bad Taste

Baseball arbitrator Frederic Horowitz  reduced Alex Rodriguez‘s suspension from 211 to 162 games in an opinion released to the parties today. Now that the arbitrator has ruled, Rodriguez’s suspension takes effect immediately.

The meaning of “immediately” is unclear, though, because we are in the midst of the offseason. Rodriguez’s attorneys told reporters that the third baseman plans to show up for spring training with the Yankees, even if he is barred from playing any regular-season games this year. The Yankees are likely to do what they can to stop that from happening.

At this point, we don’t know why the arbitrator reduced Rodriguez’s suspension to 162 games. His written opinion has not been made public. Rodriguez’s attorneys announced that they plan to ask a federal court on Monday to overturn the decision, despite the long odds (more on that below). If that happens, the opinion is likely to become public as an exhibit to Rodriguez’s complaint.

Until then, we are left to wonder what evidence Horowitz found credible or which provisions of the Collective Bargaining Agreement and the Joint Drug Policy he relied on in reducing the suspension from 211 games to 162.

On those points, let’s take a step back and remind ourselves how we got here.

MLB suspended Rodriguez on August 5 for violations of the CBA and the JDA between MLB and the Players’ Association. MLB charged Rodriguez with using two different banned substances over a period of years (testosterone and human growth hormone) and with attempting to obstruct MLB’s investigation. MLB suspended Rodriguez for the remainder of the 2013 season and all of the 2014 season, which amounted to 211 games.

In the weeks leading up to MLB’s suspension of Rodriguez, there were reports that Bud Selig was considering invoking his powers under CBA Article XI, Section (A)(1)(b) to suspend Rodriguez for life to preserve “the integrity of, or the maintenance of public confidence in, the game of baseball.” If Selig had done so, Rodriguez would not have had the right to appeal the suspension to the arbitrator, as the “integrity of the game” provision gives the commissioner final say on the matter.

I raised concerns about Selig using this provision in a post entitled “Is Selig Preparing To Use The Nuclear Option?” Many others did, too. Ultimately, the threat of a lifetime ban was seen as nothing more than a heavy-handed negotiating tactic to force Rodriguez to accept a lesser punishment if he agreed to forgo an appeal.

Selig was then said to be considering suspending Rodriguez for life under the “best interests of baseball” clause of the CBA. Under that provision, found in Article XII, Section B, “[p]layers may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.”

Reports suggested that Selig leaned toward using the “best interests of baseball” clause because it would give the league flexibility to impose a very long suspension, and one that would keep Rodriguez off the field while he appealed. Section C of Article XII requires “prompt compliance” with discipline imposed under Section B, meaning that the player must serve the suspension even if he files a grievance.

In the end, Selig invoked both the JDA and the CBA, but permitted Rodriguez to play while his appeal was pending — essentially, the remaining 49 games in the 2013 season.

Still, questions remained how Selig arrived at a 211-game suspension.

Section 7(A) of the JDA states:

A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.

Michael Weiner, who was at the time the MLBPA executive director (and has since passed away), suggested last July that suspensions for “non-analytical positives” — i.e., suspensions based on evidence other than a positive drug test — were not limited to the 50-100-lifetime regime, despite the plain language of the agreement.

Some have argued that the phrase “or otherwise violates the Program through the possession or use of a” performance enhancing substance is ambiguous because the terms “use” and “possession” aren’t defined. Others have argued that evidence that a player purchased PEDs merits stronger punishment than does a positive test, because a purchase shows the player intended to use a banned substance. Under the JDA, a positive test leads to an automatic 50-game suspension for a first time violation, even if the player can prove the PED was in his system accidentally.

Section 7.G. of the JDA may also have come into play. That section, entitled “Other Violations” states in subsection (2):

A Player may be subject to disciplinary action for just cause by the Commissioner for any Player violation of Section 2 above not referenced in Section 7.A. through Section 7.F. above.

Section 2 is the provision that outlines all of the Prohibited Substances (Drugs of Abuse, Performance Enhancing Substances, and Stimulants) and details what players are permitted to do and not do with these substances. The first sentence of Section 2 reads:

All Players shall be prohibited from using, possessing, selling, facilitating the sale of, distributing and/or facilitating the distribution of any Drug of Abuse, Performance Enhancing Substance and/or Stimulant (collectively referred to as “Prohibited Substances).

There’s nothing in either Section 2 or Section 7 that says anything about MLB investigations into a player’s use, possession, sale or distribution of PEDs. Yes, Section 7.G.2. gives the Commissioner the power to discipline a player for “just cause” but only when a player otherwise violates Section 2. That’s a much more narrow “just cause” provision than the one in the CBA, which gives the Commissioner the power to suspend a player whose conduct is materially detrimental to baseball.

As a result, we know Selig relied on both the JDA and the CBA, but we don’t know how he reached 211 games. Was it 50 games for using testosterone, 50 games for using HGH, plus 111 games for prejudicing “the best interests of baseball”? Was it 50 games for a first time violation for “use or possession” plus 161 games for prejudicing “the best interests of baseball”? Or something else?

The hearing on Rodriguez’s appeal got under way on September 30 at MLB’s offices in New York. Even though Rodriguez was the complainant — as he was challenging the commissioner’s suspension — MLB had the burden to prove that Rodriguez used substances banned by the JDA, that Rodriguez impeded the investigation, and that the 211-game suspension was justified.

Over the course of several weeks, MLB put on the testimony of Anthony Bosch, the owner of the now-shuttered Biogenesis Clinic; Dan Mullins, MLB’s lead investigator, and Rob Manfred, MLB’s Chief Operating Officer. Rodriguez’s lawyers had the opportunity to cross-examine these witnesses and did so. There were charges and counter-charges of secret meetings, witness tampering, purchasing stolen documents and more. The appeal hearing was adjourned in mid-October, and set to resume on November 18. In early November, the New York Times detailed the aggressive tactics used by both sides during MLB’s investigation and Rodriguez’s appeal in this story.

The appeal hearing before arbitrator Horowitz re-commenced on November 18 for Rodriguez to put on his case. Yankees president Randy Levine was called as a witness, and gave 30 minutes or so of testimony. Rodriguez and his lawyers then argued to the arbitrator that Selig should be ordered to appear, and forced to testify to explain his basis for the 211-game suspension.

The arbitrator denied Rodriguez’s request, which led A-Rod to storm out of the hearing, and take to the airwaves to attack the appeal process. Ultimately, Rodriguez’s attorneys returned to the hearing without their client, completed their presentation of evidence, and participated in post-hearing briefing.

None of the questions we had in August as to how Selig arrived at a 211-game suspension have been answered. And there is nothing we’ve learned since then that explains how the arbitrator concluded that a 162-game suspension was justified under the express terms of the CBA and JDA.

Indeed, the ambiguity of how the JDA applies to a non-analytical positive coupled with the “best interests of baseball” clause in the CBA leave players at the mercy of the commissioner’s office — the exact opposite of what the 50 game-100 game-lifetime ban punishment scheme had intended to accomplish.

If a player fights a suspension based on a positive test, is he acting against the best interests of baseball? If a player seeks evidence to counter a charge of a non-analytical positive, is he impeding MLB’s investigation? These are uncomfortable questions players and the MLBPA are now forced to confront.

So what’s next for Rodriguez? His attorneys plan to challenge the arbitrator’s decision in federal court as early as Monday. Rodriguez already has a lawsuit against MLB pending in federal court in Manhattan and any further filing by him is likely to consolidated with that case.

But he faces a steep uphill battle. Horowitz’s decision is final and binding under the terms of the CBA and JDA. Collective bargaining agreements are governed by the federal law known as the Labor Management Relations Act. Under that statute, judicial review of an arbitrator’s decision is very limited. Courts are not authorized to review an arbitrator’s decision on the merits, even if one of the parties argues that the arbitrator made factual errors or misinterpreted the CBA. A court may intervene only when the arbitrator strays so far from his authority that he “dispenses his own brand of justice,” as the Supreme Court wrote in a recent opinion.

This may be the end of the road for Rodriguez — at least as it relates to this this suspension. But MLB’s conduct, Selig’s reasoning, and the arbitrator’s decision will reverberate for the players and the MLPBA for years to come.

 




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Wendy's baseball writing has also been published by Sports on Earth. ESPN.com, SB Nation, The Score, Bay Area Sports Guy, The Classical and San Francisco Magazine. Wendy practiced law for 18 years before beginning her writing career. You can find her work at wendythurm.pressfolios.com and follow her on Twitter @hangingsliders.


207 Responses to “Arbitrator’s Decision On Rodriguez Suspension Leaves Bad Taste”

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  1. McDuff says:

    Great article! I hope A-Rod doesn’t get blackballed from MLB like Barry Bonds did after 2007. Of course Selig’s golden boy Braun got off the hook.

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    • KB says:

      How did Braun get off? He accepted a suspension, admitted his guilt, and in one way or another, has been apologizing since. I will be surprised if he ever wins a BBWAA award again and his HOF status is bleak based on current voting practices. I dont condone anything he did, but he has been penalized sufficiently barring future indiscretions.

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      • Bob says:

        What Braun did was just as bad once you factor in his lies and the slander of those involved in his testing. There is no way you can reconcile Brauns 65 games and A-Rods 162 and not say there wasn’t a specific agenda. Don’t get me wrong A-Rod deserved a suspension just not one nearly 3 times as severe as Brauns.

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        • Daniel says:

          You forget, Braun ultimately admitted what he did, apologized, and DID NOT APPEAL. That is why he got off so easy. It is the equivalent of a plea deal. And he was the first to take the deal, so he got the best one. That’s how things work.

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        • bob says:

          @Daniel: What a crock. He lied right up until he couldn’t deny it any more. When the Biogenesis story broke he tried to deny it by saying they were using them as a “consultant”. The documents showed that was a lie. The only difference between the two was that Braun or his team of lawyers were a little more astute at knowing when to cut their loses. There’s a distinct case of bias here. Braun failed a test, then lied about and tried to cover it up through legal means by discrediting an honest person. He’s no different than A-Rod or Armstrong imo.

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        • pft says:

          Also, Braun, unlike Arod, tested positive

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        • Erik says:

          @bob – There’s another difference between the two that you tangentially touched on. Only Braun has failed a test.

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        • Tim says:

          If you’re allowed to punish people for taking advantage of the appeals process, it rather reduces the point of having one.

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        • Cidron says:

          actually, if memory serves correct, A-Rod DID fail a drug test. But, it was back in the “no punishment” year of 2003(?), and he stated it was when he was with the Rangers. Granted, that isn’t actionable (as it was stated to be a non-punish test)

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        • Brian Cartwright says:

          ARod was said to be impeding the investigation, which we can assume was the basis for the suspension which fell outside of 50-100-lifetime. But what about Bruan and the others? Instead of what is spelled out in the JDA (50 games), Braun and other got “the remainder of the season” – and if they dared to appeal, the suspension would be made longer. Where is that in the contract?

          I’m generally not much of a fan of unions, but how does Michael Weiner, then head of the MLBPA, basically endorse Selig’s position that 50-100-lifetime doesn’t always apply? Isn’t Weiner’s job to represent the players interests to the bitter end?

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        • Simon says:

          Given that Braun got 15 for impeding investigations, making MLB look inept and generally being an arsehole, and Melky got 0 for actually trying to seriously impede an investigation, A-Rod must have killed someone to get the extra 112 on top of the 50 for a first offence.

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        • JMo37 says:

          Remember that one of Braun’s initial arguments was that he was a Jew and this was anti-Semite.

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      • pft says:

        Braun makes significantly less money than Arod, so while he got 65 games it was the equivalent of 20 games for Arod. He was of course caught lying about his innocence and going to arbitration and smearing the collector

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        • FH says:

          Right, so lets go back and recalculate the suspension of every other player in the biogenesis scandal based on their pay vs. Brauns.

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      • derp says:

        with any luck by the time Braun retires a good portion of the morons voting today will have dropped dead on account of their own egos.

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    • Ian R. says:

      Bonds was a free agent. Braun and Rodriguez are still under contract. It’s hard to blackball someone who’s already under contract.

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      • pft says:

        Of course, but if Arod does get released by the Yankees what are the odds of anyone offering him a contract. My money is on 1 billion to 1 against.

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        • ankle explosion hr celebration says:

          that’s part of what’s so clever about the “2-year ban” that Selig imposed. Effectively, I think it’s going to become a lifetime ban. Who wants to hire an ancient, now injury-prone player, who was out of baseball for about 2 years and recently off PEDs for the first time in what, a decade?

          As pft said, I doubt anyone will, with or without collusion. So Selig effectively eliminated the rest of A-Rod’s useful career, without doing so de jure.

          On the other hand, A-Rod is one of the great talents in baseball history, and he seems pretty motivated by this whole mess, so who knows..

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        • LaLoosh says:

          the Yankees need A-Rod. Maybe not at 25M per but they certainly are better with him at 3B than whatever other options they have. They most certainly are not going to release him with 3 yrs left to pay him.

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        • Jay29 says:

          Who says A-Rod will be off PEDs in 2015? Maybe he has other sources and other methods of beating tests.

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        • Ian R. says:

          Granted, but if the Yankees release him they’ll still be on the hook for his salary. As long as he’s above replacement level, that’s unlikely.

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  2. Franco says:

    Thanks MLB for turning me into a big ARod supporter.

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    • Boris Chinchilla says:

      I agree with the sentiment. But as a Mariners fan who was really bummed out when Aroid went to Texas…FUCK HIM

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      • The Typical Idiot Fan says:

        Fellow M’s fan here: get over it. We just did the same thing to New York. We don’t have a right to complain anymore.

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    • Llewdor says:

      Agreed.

      I never liked A-Rod. I always thought he was just a terrible human being. But on this on I’m totally on his side.

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      • chuckb says:

        Agreed.

        Which person is acting more “against the best interests of baseball” — the person who injects steroids into his body or the person who arbitrarily and capriciously suspends players without explaining his justification publicly and then doesn’t even show up in court to justify his suspensions because he would either be forced to tell the truth or commit perjury?

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        • DRW says:

          Don’t forget, ARod also did not testify. Why do you think that was?

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        • Jiveballer says:

          Arod didn’t testify because his was not the burden of proof.

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        • DRW says:

          ARod did not testify because, in chuckb’s words, he would be required to tell the truth or commit perjury.

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        • chuckb says:

          @ DRW,

          I don’t think there’s one person here who believes that ARod didn’t use PEDs — or at least attempt to purchase and use them.

          Many of us just want a transparent process, that punishes violators according to the rules that MLB and the PA have established through the JDA and the CBA. ARod, in my view, broke the rules and should be suspended 50 games for a 1st time violation, in according to the rules and procedures that have been established.

          Just don’t forget that Bud Selig is now also breaking the rules and he’s doing it with impunity.

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  3. Jay L says:

    Was it simply that Selig didn’t want A-Rod to play in 2013 or 2014? I could see him picking 211 as being 162 plus whatever was left of 2013.

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    • TADontAsk says:

      Yeah, that’s where I thought the 211 games came from. It was 162 games for the 2014 season, and then at the time the suspension was ruled on, there were 49 games left in the 2013 season. So the suspension was really the rest of 2013 and 2014, and that happened to be 211 games.

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      • Wendy Thurm says:

        Of course that’s where it came from, in reality. The question is what legal basis Selig had for imposing it, given the language of the CBA and JDA.

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        • Sparkles Peterson says:

          The legal basis is the CBA section, which you referenced in your article, that allows the commissioner to impose a suspension of unspecified length in the “best interests of baseball” clause.

          You clearly disagree with MLB and the arbitrator that the A-Rod situation qualifies, but playing rhetorical games like this is annoying.

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        • WMT says:

          But your question seems to assume that Selig’s choices were either to impose a penalty under the 50-100 regime or to impose a lifetime ban. But presumably inherent in the ability to impose a lifetime ban is the discretion to impose a lesser ban. Seems likely that Selig just used that discretion to impose the season-and-a-part ban he ultimately chose.

          And, of course, arbitrators have the power to, and very, very often do, split the baby. The arbitrator doesn’t have to either uphold the suspension in full or overturn it.

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        • Wendy Thurm says:

          I’m not playing semantic games. I’ve analyzed these provisions on several occasions, and with great care. I do not believe the Commissioner has the authority to ban a player for life for violating the JDA. Otherwise, the JDA punishment scheme has no meaning at all. For the “best interests of baseball” clause to be used in this way raises the potential for the 50-100-lifetime regime to be meaningless, as well.

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        • GilaMonster says:

          That is one problem. If this is under “best interest of the game”, then it makes the 50-100 meaningless. All suspensions should just be at Commissioners digression, but that also for bias,which is unfair.

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        • I totally disagree with you that the suspension leaves a bad taste.

          Baseball is taking big steps towards cleaning up the game, allowing clean players to excel.

          And you think it was done somehow wrong?

          I am surprised.

          ARod was given an appeals process, which was agreed on under the Agreement with the PA.

          Look at from another perspective, guys who plays clean gets their money essentially stolen from them by the likes of ARod. I think a proper punishment would be to pay back the salary he earned during time they can prove.

          I think ARod got off easy. He should be banned for life, and from ever entering a baseball arena.

          MLB is being a pioneer. Like in the Armstrong case, they are using other methods than the traditional urine sampling to catch cheaters.

          You have a law degree, so you should be well aware of that people can be found guilty without DNA evidence, urine tests.

          There was nothing wrong with this ban, maybe that it was way too short.

          Good day to you mam.

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        • LaLoosh says:

          BigBubba:
          Do you even know what the evidence was against ARod? It’s interesting that people have such strong feelings w/o even knowing what the evidence was. At least knowledge of the details and one could make some judgment about whether or not the length of the suspension was appropriate or not.

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        • Brian Cartwright says:

          @BigBubba – I’m for cleaning up the sport, and there is a jointly agreed process in place that is one of the toughest in professional sports. What I object to is Selig & MLB ignoring that contractual process and just doing whatever he pleases. We even bother to negotiate if the other side will violate it whenever they wish?

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        • Copperweld says:

          The problem here is you’re clearly writing as an advocate, and not just as a sharer of information, and that’s a shame because the information provided was quite insightful in its own right, and was sufficient. Your advocacy bias is why you spent time wondering aloud from which agreement the severity of the punishment was derived, later acknowledging you know its source, and you were simply using the exercise-in-wonderment to illustrate your distrust of the use of “the best interests of baseball” clause, even going down the fallacious slippery slope of capriciously bestowed lifetime bans.

          All facts not being known, at this point, it’s impossible to say how things will shake out going forward and in the instant case, but the reasonable interpretation here seems to indicate that 50-100-lifetime progression still exists and will be utilized for typical and straightforward plain letter violations. Beyond that, case-by-case analysis will determine the appropriateness of further and alternative punishments.

          The exact boundaries of this not being knowable due to the aforementioned factual cloudiness. But that does not lend itself to a necessary advocacy of abuse of process.

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        • Llewdor says:

          I think the problem is that, because of the “best interests of baseball” clause, the punishment limits in the JDA were always meaningless.

          The commissioner has incredible power to do basically whatever he likes. It’s a shame it had to take this sort of over-reach from Selig for people to realise it.

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        • Birdman says:

          Re: Llewdor (and others)

          This is a genuine question, as I’m not sure of the answer: What if MLB has evidence of three or more discrete violations of the JDA? If we accept non-urine tests as evidence, and if MLB has evidence that he was injected with banned substances on three discrete occasions, then couldn’t this be treated as three violations of the JDA, resulting in 50, 100, and lifetime bans simultaneously? If that is the case, then any lesser penalty handed down by Selig could potentially be viewed by the defendant as a compromise. This could also account for 150 of the 162 games left in the suspension.

          …Right?

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        • Simon says:

          There are details in the JDA about what can be regarded as a separate offence (basically so MLB can’t say you took PEDS on three consecutive Saturdays in a row, so that’s three offences, and thus a life ban). I think, although I’m not an expert, that this would preclude MLB from getting A-Rod for more than one PED violation.

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        • RC says:

          “I think ARod got off easy. He should be banned for life, and from ever entering a baseball arena.”

          Fine. Then why hasn’t Braun also been suspended for a year+?

          He did everything ARod did.

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      • Chicago Mark says:

        I agree with you that using the “best interests…” clause is dangerous for all. But wasn’t this all part of the legal maneuvering by Selig? And isn’t that simply the way the legal system works? Selig simply offered 65 games if accepted or a much larger amount if they went to court. That amount turned out to be 211.

        And although it makes for great reading which is what you do. I agree with Sparkles to a certain extent. All the grey area in our lives is annoying. We don’t need to worry about “prohibited from using, possessing, selling, facilitating the sale of”, on and on. This stuff is all grey area to me. And you too probably. It’s primarily used by the guilty and their lawyers. So in the end it is all very annoying.

        And if you and I were walking down the street and thought of going into an establishment for a Coke but were told it is a drug house or maybe housed terrorists we would probably move on and find our Coke elsewhere. We don’t need to take the risks. Arod, Cruz, Cabrera, Braun and all others knew the risks associated with going to Biogenisis. They probably all figured they could get away with it with the help of their lawyers and the grey area. Otherwise they simply could have been helped by their team trainer. No risk. No grey area.

        In conclusion, I know some smarty will say something about guilt (more likely innocence) by association. I repeat, grey area. Arod deserves everything he gets.

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        • Chicago Mark says:

          Sorry, totally forgot a sentence in para 2. After “and you too probably” should be; We need only be told “don’t do drugs”.

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        • Tim says:

          Selig simply offered 65 games if accepted or a much larger amount if they went to court.

          Isn’t that extremely illegal?

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        • ankle explosion hr celebration says:

          “Isn’t that extremely illegal?”

          isn’t that basically a plea bargain? Plea bargains aren’t illegal.

          (I ask actually from the perspective of ignorance, not being a lawyer)

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        • isavage30 says:

          Tim, you don’t seem to be familiar with how the legal system works. Illegal? It’s how the legal system works. You get busted for, say, drug possession, they throw a bunch of misdemeanors at you where you can potentially go to jail for multiple years if convicted, but then they offer you the option to plead guilty to a summary offense and pay a fine. So, paying lawyer thousands of dollars to potentially go to jail, or plead guilty and pay a fine that would be less than you lawyer fees if you went to trial and won. That’s why the vast majority of criminal cases don’t go to trial. Even if you are innocent, it doesn’t make sense to fight it.

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        • Tim says:

          Prosecutors are allowed to do a lot of things that the general public is not. Saying “we’ll punish you a lot more if you go to court” is one of those things.

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        • isavage30 says:

          What are prosecutors allowed to do that the general public is not, and what exactly would be illegal about telling someone they get less of a punishment for violating some work rule if they admit to the violation? Very common practice in both criminal and civil matters. “You can agree to this settlement or we’ll attempt to get the maximum penalty against you and you can take your chances in court/arbitration” is pretty much the starting point for all legal fights in this country.

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        • Twm says:

          Is it worth mentioning that this was not a criminal proceeding? This was a disciplinary procedure, an employer/employee interaction, and it was governed by contract, not statute.

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        • Neal says:

          This is a big mess that MLB opened up. In a civil litigation MLB’s evidence against A-Rod does not hold up and there is no chain of security for the evidence used against A-Rod. Even the alleged text messages should be held under scrutiny in their authenticity since baseball has no power subpena to make a service provider turn over archived text messages. And due to legal reasons aren’t simply going to hand them over to Bosch or Selig.

          For MLB to go this far with an unprecedented suspension one would think their evidence would be without some scrutiny instead of relying on the paid testimony of a drug dealer.

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        • ankle explosion hr celebration says:

          “Prosecutors are allowed to do a lot of things that the general public is not. Saying “we’ll punish you a lot more if you go to court” is one of those things.”

          I think extortion isn’t a crime if there’s a lawyer present (rimshot!).

          I kid, I kid. In seriousness, I think the collective bargaining agreement basically gives Selig the right to offer a “plea bargain”-type deal to A-Rod. Essentially, the hypothetical conversation would go like this:

          Selig: “Hey A-Rod, you can either accept a one-year ban I impose through the best interests of baseball clause and drop your appeal and case, or you can try to fight my usage of the best interests of baseball clause, in which case I will attempt to ban your for two years using the very same, very fuzzy clause.”

          Since the clause allows Selig discretion in assigning punishment, I don’t think there’s anything illegal about him conditioning the punishment on whether the player fights it or not. There’s a good argument to be made, in fact, that it is decidedly not in the best interests of baseball for there to be a protracted legal battle which draws more attention to this, so that gives Selig even more cover for increasing the punishment if A-Rod decides to fight it.

          That’s my two cents. Clearly, this “plea bargain” thing happened, and clearly, A-Rod’s lawyers haven’t been able to fight it very effectively, so my guess is that it’s at least defensible.

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        • Brian Cartwright says:

          MLB vs the players is not a legal situation, it’s a labor contract. Both sides have agreed to the rules, but now it appears that MLB may have violated those rules.

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        • chuckb says:

          So, using that “logic”, any suspension is OK even if it doesn’t follow the JDA.

          It should be noted that ARod isn’t the only one here who broke baseball’s rules. Selig did as well and yet he’s going to be lauded by people like you as a hero for getting ARod — who got 162 games basically because no one likes him — out of the game.

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        • Jiveballer says:

          Arod was never offered a deal.

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  4. Simon says:

    Is it reasonable to suggest that, if everyone else involved in Biogenesis got the standard 50 for a non-analytical positive, the arbitrator is dispensing “his own brand of justice” to give A-Rod 162 for the same offence (assuming there isn’t evidence that A-Rod has done anything much worse than anyone else who was banned)? Even Braun only got 65, and Melky didn’t get anything extra for trying to fabricate the website. From the outside, giving A-Rod 162 seems very inconsistent with the punishment that others got for similar offenses.

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    • Dan says:

      Not quite. Remember that the others agreed to accept the 50 game (or in Braun’s case, 65 games) suspension, so there’s little precedential value to that.

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    • Roger says:

      I haven’t seen it mentioned much, but I believe there was also a charge that ARod promoted Biogenesis to other players.

      Braun and ARod were both charged with obstruction from what I gather.

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      • Bob M says:

        Braun wasn’t charged with obstruction. His extra suspension length was due to comments he made leading up to his first appeal process. You know, the confidential appeal process where certain details advantageous to MLB were leaked.

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  5. David says:

    Had to get the Yankees under the luxury tax somehow.

    I feel so silly suggesting that but this whole thing seems like an arbitrary witch-hunt that happens to work out perfectly for the Yankees.

    Vote -1 Vote +1

    • Vince says:

      That would be a lot easier to buy into if Bud hadn’t sent his entire adult life trying to figure out how to take money from the Yankees and route it to Milwaukee and other AAAA teams.

      Vote -1 Vote +1

    • Ed says:

      The problem with that is the one constant over Selig’s tenure is he’s been trying to find ways to penalize the Yankees for spending big. The luxury tax only exists because it hurts the Yankees.

      +9 Vote -1 Vote +1

    • Blount says:

      Eh. I mean I’m sure the Yankees actively assisted this investigation beyond what they’d do if A Rod was still an impact player. It IS kind of crappy the Yankees have benefited from the positive performance of PED players but then attempt to use that to weasel out of the deal (failed Giambi attempt)…but if there’s any consolation their team and system is fairly mediocre.

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    • Andy says:

      It’s quite the conundrum he had. Do you try to ruin A-Rod’s life and allow the Yankees to sneak under the luxury tax threshold, or do you go easy on him to continue to flip the Yankees the bird?

      I know it’s very conspiracy theory-esque, but it wouldn’t surprise me to hear that there were Yankees employees (probably indirectly) lobbying to have them throw the book at A-Rod. $30m goes a long way toward either signing more guys or getting under the threshold.

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  6. David says:

    Oh, and thanks Wendy for another illuminating article on the legal side of baseball!

    +15 Vote -1 Vote +1

  7. Mr Punch says:

    It’s a minor point, but one related to a topic we’ve been focused on lately – a lifetime ban for ARod would really screw up the Hall of Fame. It would make the ban (which includes the HOF) a kind of standard for PED use; and that would mean that (let’s say) three of the top five players of the past three decades – ARod, Bonds, Clemens – don’t get in. That won’t work; it would be a major hit to MLB.

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    • Ian R. says:

      I’m pretty certain Selig wants to take as hard a line as possible on the steroid players. Keeping them out of the Hall of Fame is presumably exactly what he wants to do.

      Vote -1 Vote +1

      • pft says:

        He should be kept out himself for juicing the ball and allowing steroids to flourish. MLB was giving seminars to owners on the benefits of PED according The Yankee Years by Torre and Verducci

        +44 Vote -1 Vote +1

      • ankle explosion hr celebration says:

        “it would be a major hit to MLB.”

        Why, exactly? Even though it seems to be the majority opinion around FG that Bonds+Clemens+ARod should be in the Hall, it’s not clear to me that the same opinion is held by the majority of baseball fans generally. Any polls ever been done?

        It does seem like Selig is in favor of keeping them out, and so I wonder if he thinks that letting them in would be bad for baseball’s popularity.

        +6 Vote -1 Vote +1

        • GilaMonster says:

          Because the public is idiots.

          Bonds and Clemens never tested positive. In fact, according to the US legal system, their statement of never using PEDs can not be disproven(perjury charges). The only evidence against Bonds or Clemens is hearsay or circumstantial. It might be me, but the fact that player A said he did steroids and the fact that he was really good isn’t enough to keep the best hitter and pitcher of all time out of the Hall of Fame.

          Vote -1 Vote +1

        • bob says:

          It’s just more of the same moralizing. Previous generations used other substances, pitchers threw spit balls and bragged about it. What about the racists? If you want to get right down to it the whole character clause is a joke. What about the idiots that have multiple dui’s like Cabrera, or guys that cheat on their wives or beat them? It’s a veritable Pandora’s box of subjective views on people’s behaviours with no standards. Then to make matters worse you’ve got a group of guys casting the votes, a good portion of whom have proven beyond a reasonable doubt that they are incapable of being objective let alone rational.

          +12 Vote -1 Vote +1

        • Vince says:

          Gila, I believe Bonds and Clemens should be in the HOF, but that’s simply not true. Regarding Bonds, he admitted, on the stand, that he took both the cream and the clear. Clemens was reasonably found not guilty because of credibility issues – but a first person statement about what the accuser saw, did, and said is not hearsay.

          As I said, Bonds and Clemens should be in. But they should be in because they were great players who did nothing inconsistent with what their peers were doing or out of character with what players have done through the history of the game. Let’s use the truth in their defense rather than equate “not guilty” with “no evidence” or even “innocent” and pretend that we can’t see our hand in front of our face.

          +5 Vote -1 Vote +1

        • ankle explosion hr celebration says:

          those are all points, but don’t really answer my question. I don’t know if it’s self-evident that barring Bonds+Clemens+A-Rod would be bad for MLB’s image. There’s a possibility that it would, in fact, be good for MLB’s bottom line–Selig seems to think so.

          On a relatively unrelated note, I’m tired of debating the character clause, but I’ll say it again: just because bad people were rewarded before doesn’t mean we should continue doing it.

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        • GilaMonster says:

          Bonds did so in a secret grand jury hearing. That information was leaked. Clemens’s credibility issues are valid as well.

          I’m not saying Bonds or Clemens are innocent. They probably aren’t. I though I made it clear that they were not guilty. There isn’t enough legit evidence to prove they used PEDs. That is what matters. You can’t punish someone because they probably did something wrong.

          This is a huge problem in the legal system and society in general. Someone is a accused of _____, there isn’t really any evidence of it, but once that accusation is made public, it will always be held against them. A perfect example is the Duke Lacrosse case.

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        • Chicago Mark says:

          Gila….
          Wow! “Because the public is idiots”, really?

          I don’t want to get into a debate on our legal system but Arod, Clemens and Bonds have gotten away with doing steroids or PED’s or? because of our legal system. Despite you….and me believing they are guilty. So what problem do you have with the legal system, the thought that it allowed them to get away with it or the thought that we think they got away with it? I don’t think you can make the statement that you think they are guilty and then complain that it is wrongly held against them.

          Bob……
          I’m not certain if you’re making a joke or not. Speaking in legalese, do you think some BBWAA would be found guilty beyond a reasonable doubt of being objective or rational? If it’s a joke, my apologies for not getting it. I are slow! Ha!

          I agree with Ankle…..In the end, it’s probably in the best interests of baseball to keep Bonds, Clemens and Arod out. Despite what FG reps and readers think, the general, majority public probably believes they should not be in the HOF.

          Vote -1 Vote +1

        • phil says:

          @ankle explosion hr celebration

          I would assume because MLB wants more fans/customers and if it appears to take the moral high ground it appeals to those potential fans/customers.

          Bonds and Clemens don’t really generate revenue for the MLB anymore so that another reason MLB has less motivation for keeping them a part of the game.

          Vote -1 Vote +1

        • Wally says:

          Chicago Mark,

          “In the end, it’s probably in the best interests of baseball to keep Bonds, Clemens and Arod out. Despite what FG reps and readers think, the general, majority public probably believes they should not be in the HOF.”

          Only in the Deadspin vote Clemens got 66.6%, Bonds got 64.9%, McGwire 56.4%, hell Palmero got 33.3%. Compare that to the BBWAA vote. http://deadspin.com/how-deadspins-hof-vote-stacked-up-against-the-final-ta-1497285165

          Maybe deadspin isn’t representative of “the public”, but its probably pretty damn representative of baseball fans that spend much time on the internet.

          Vote -1 Vote +1

        • B N says:

          @Gila: Check your facts. Bonds admitted to using something, and that something was shown to be steroids. What he DIDN’T admit to was knowledge that they were steroids. So it’s shown that he used, just not that he knew that he was using (which, while at a reasonable-doubt level, is highly unlikely). But he’ll be in the Hall someday, no worries on that.

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        • Dan Szymborski says:

          Bonds didn’t admit to use “the cream” or “the clear.” He admitted to using a creamy substance and a clear substance. It was the contention that these were the same substances, but Bonds didn’t testify they were.

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  8. Steven says:

    I know it’s illogical, but I kind of want things to work out for A-rod so the Yankees can’t escape the albatross contract they gave to him.

    +45 Vote -1 Vote +1

    • pft says:

      Still 3 years left. Arod should let himself turn into a fat blob and not touch a bat so they release him. He will be blackballed by MLB but should be able to play in Japan.

      Anyways, he has 20 million a year in non-baseball earnings, not counting his 300+million net worth, so he does not need to play baseball.

      He should probably start up his own league and sign some ex-MLB stars by giving them an ownership stake in lieu of salary. Bonds, Clemens, Sosa, etc

      Vote -1 Vote +1

      • Nate says:

        This would be a terrific idea, if only for the novelty of seeing 40-something superstar assholes of the game play each other. The baseball would probably be entertaining, as well.

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      • Spencer D says:

        Why should he do that? I would like him to play to the conclusion of his contract, even if he’s below replacement, not to hurt the yankees, but to make the point that a contract is a contract, and one doesn’t have to forgo the financial benefit that others AGREED TO PAY THEM if they badly.

        +7 Vote -1 Vote +1

        • fjtorres says:

          Oh, a contract is a contract.
          ARod’s contract includes compliance with the CBA and JDA.

          He’ll get dinged during the suspension but he’ll get the other $61m when/if he gets released. Which, if it’s true the Yankees don’t want him in spring training, is the easiest solution for them.

          Of course, if they really want to screw him over, they can let him attend now and next year, ignore him, and release him on opening day 2015.

          Vote -1 Vote +1

        • Tim says:

          I believe if they release him now they’re liable for the entire amount of the contract; they don’t save the suspension money unless they would otherwise be paying him to play during the suspension.

          Vote -1 Vote +1

      • ankle explosion hr celebration says:

        I love it. Someone suggested awhile ago having an “All-PEDs Allowed” league, where there were no rules, and bionic arms were welcome. A-Rod has the money to make that happen; let’s see it!

        Vote -1 Vote +1

      • A Commenter says:

        Barry Bonds. Still better than Yuniesky Betancourt.

        +27 Vote -1 Vote +1

      • Baltar says:

        The Yankees could release him, but, except for the suspension year, they still have to pay his salary.

        Vote -1 Vote +1

    • Baltar says:

      Yes, I was disappointed, too, because the Yankees benefit. They not only don’t have to pay Rodriguez’s exorbitant salary this year, but they still have a chance of saving many millions more by staying under the luxury tax limit.
      My best hope now is that the Yankees “win” the Tanaka auction and Tanaka tanks.

      Vote -1 Vote +1

    • Jon L. says:

      It is bizarre how greatly the 2014 Yankees are being helped by the season-long suspension of their best third baseman.

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  9. James says:

    Wasn’t there noise about the mlb having evidence that A-Rod referred others to the clinic? If so, that’s a justifiable (though hard to prove) reason for a longer suspension. It would also be worse than the other suspended players since he encouraged others to break the rules.

    Vote -1 Vote +1

    • fjtorres says:

      We’ll know more after the 60 Minutes report detailing the testimony submitted to the arbitrator.
      Some of the rumors were that he was referring players to the clinic left and right, which is how several apparently-clean players got dragged into the mess.
      Selig and the Yankees aren’t the only ones he’s ticked off.

      Vote -1 Vote +1

    • AK7007 says:

      Where in the JDA does it say “you get suspended longer if you tell other guys to buy from your dealer?” It’s clearly worse than just using, but the fucking agreement was “use, the first time we catch you, you get 50 games.” Not “use, we’ll trump up a bunch of other shit to ban the guys we don’t like for life.”

      Any suspension for a first time offense that’s longer than 50 games is utter bullshit. We have these agreements to prevent abuse by those in power against individuals that they dislike, or to prevent favoritism, or any of a million other ethical concerns. Selig is the illustration of why those agreements are needed. That the arbiter ignored them is crazy.

      Vote -1 Vote +1

      • edb says:

        “All Players shall be prohibited from using, possessing, selling, facilitating the sale of, distributing and/or facilitating the distribution of any Drug of Abuse, Performance Enhancing Substance and/or Stimulant (collectively referred to as “Prohibited Substances).” Pretty sure that would count as facilitating.

        Vote -1 Vote +1

  10. brad says:

    Could it be 50 for a first offense, 100 more for a second offense the arbitrator assumed on the evidence, and a further 12 at Selig’s discretion as commish?
    I’m not arguing in favor of this decision, it seems hard to reconcile with the basics of the CBA from a layperson perspective, just also trying to make any possible sense of it I can.

    Vote -1 Vote +1

  11. pft says:

    I still think Horowitz left himself open by not allowing Arods team to question Selig. It suggests bias and leads one to question if Arod got a fair hearing. Its also not clear that the penalty is in accordance with the spirit of the CBA/JDA the players agreed to.

    ——————————————————————–
    2425.6 Grounds for review; potential dismissal or denial for failure to raise or support grounds.

    (a) The Authority will review an arbitrator’s award to which an exception has been filed to determine whether the award is deficient—

    (1) Because it is contrary to any law, rule or regulation; or

    (2) On other grounds similar to those applied by Federal courts in private sector labor-management relations.

    (b) If a party argues that an award is deficient on private-sector grounds under paragraph (a)(2) of this section, then the excepting party must explain how, under standards set forth in the decisional law of the Authority or Federal courts:

    (1) The arbitrator:

    (i) Exceeded his or her authority; or

    (ii) Was biased; or

    (iii) Denied the excepting party a fair hearing; or

    (2) The award:

    (i) Fails to draw its essence from the parties’ collective bargaining agreement; or
    ———————————————

    I will say this though, the MLBPA’s show of weakness should be a great concern to players. When you look at what they have agreed to such as the qualification offer/compensation picks, tie in of luxury tax with revenue sharing, etc you have to wonder if they have been co-opted.

    MLB fired the arbitrator after the Braun decision. MLBPA should do the same with Horowitz.

    +27 Vote -1 Vote +1

    • LaLoosh says:

      of course there is a bias toward MLB. The MLB arbitrator is a coveted position and decisions that go against MLB aren’t viewed fondly (see Das, Shyam). Unfortunately, this is generally the way the arbitration process works in this country. It’s almost always slanted toward the corporate side.

      +6 Vote -1 Vote +1

    • Wil says:

      I’d agree but there isn’t anything in the CBA that compels the commissioner to testify. And being that a Commissioner has never testified at a hearing like this, there is no precedent for such a situation.

      However, I do agree if A-Rod does have a case it’s on the suspension length.

      Vote -1 Vote +1

    • RC says:

      I’d say there’s a lot of evidence of 1i and 2i happening.

      Vote -1 Vote +1

  12. GilaMonster says:

    Here is how I feel about this. MLB,under Selig, turned a blind eye to PEDs for the longest time. The rules weren’t clear prior to the JDA and even though certain substances might be banned, they didn’t test or try to enforce it. Now they’ve declared the War On PEDs and turned it the other way.

    It is reminiscent of the War on Terror. Someone is accused of being a terrorist. They seemingly have done nothing wrong. We didn’t find them planting a bomb or committing an terrorist act. They receive the intelligent in unreliable torture. You want to defend this person, but you can’t look at the evidence because you aren’t allowed. This person is kept in a secret prison for life under secret charges under secret law due to secret evidence. Now this seems wrong. But people don’t like terrorist, so we allow it. The A-Rod situation is the same thing. The public isn’t supporting A-Rod or PED users, so MLB can do whatever is wants without worrying about its public image.

    I’m a Red Sox fan and I’m defending A-Rod. Because this is just an example of MLB being allowed to do whatever they want. They received evidence from a guilty unreliable drug dealer(who isn’t prosecuted for some reason). Then they coerced players into accepting suspensions. They need to be called out on paying for their “evidence” and the integrity of their only witness. Also they need to explain their logic in the suspension without a clear rule dictating it.

    I hope a court looks at this and laughs because this whole thing has been a legal joke against MLB.

    +33 Vote -1 Vote +1

    • Pennant says:

      Or you can give Selig some credit for coming to his senses and seeing that long term steroids could kill baseball. People push this stuff that somehow if a person is wrong once, he is morally obligated to continue to be wrong. I don’t know Selig’s motivation for what he did in the 1990s. I can buy that a lot of times people may suspect something but not really know. Even today all sorts of laws are routinely broken in this country yet nothing much is done because certain crimes are part of the culture and the authorities may not realize the extent of the problem or the long term implications. Later, as the facts become more known, there are aggressive laws. It happens.

      Little is mentioned of it even on this site, but i have heard that A Rod attempted an aggressive cover up, witness intimidation. Depending on those findings, yeah, he deserves a whopping suspension. It is in the best interest of baseball that a coverup be severely punished. One thing to break the rules, another the thing to drag innocent people down. If that happened, it is horrible. It amazes me that even as MLB culture has seemingly changed for the better, there are self-styled baseball fans digging their heels in, grasping at straws trying to run interference for cheaters. To refresh your memory, so many writers here and other ostensible ‘evidence-based stat analysis” sites carried Braun’s bag of crap when all tangible evidence was against him except for the legal technicality. (But they even screamed: no he is innocent! It isn’t a technicality!” , doubling down on their absurd argument!

      Vote -1 Vote +1

      • pft says:

        Come on, Selig acted and the MLBPA agree for one reason only, fears that Congress would impose a 3rd party testing program on them that they could not control

        Vote -1 Vote +1

      • GilaMonster says:

        My problem is with the secrecy. If A-Rod is guilty, we should should know of what,why, under what rule, and what guideline for punishment.

        My understanding is that MLB is keeping a ton of evidence secret from the public and from A-Rod’s legal team to cover their own ass.

        +16 Vote -1 Vote +1

        • pft says:

          Yet they allow Bosch, a man they now own, to go on 60 minutes and violate the confidentiality agreement MLB and the MLBPA have on arbitration hearings.

          In fact, Horowitz timing suggests cooperation with MLB to release before the 60 minutes show.

          +22 Vote -1 Vote +1

      • You are spot on bro. Very we’ll written.

        I think it’s partly because few of the writers on this site has ever played on any higher level that they fail to recognize the injustice cheating with steroids are to those who play and don’t juice.

        -32 Vote -1 Vote +1

      • RC says:

        “Or you can give Selig some credit for coming to his senses and seeing that long term steroids could kill baseball. ”

        Thinking that the league is just going to run off people that it doesn’t like will hurt baseball a lot more than steroids.

        Baseball has never been clean. It never will be.

        Vote -1 Vote +1

    • GilaMonster says:

      Bosch’s testamony means nothing. He is an unreliable “drug dealer” who was paid by MLB and granted immunity to say whatever they want.

      Why hasn’t he been investigated by the DEA and convicted? Because he wouldn’t cooperate with MLB otherwise. It is messed up. Imagine if the police went granted drug dealers immunity to go after all their drug users. That would make 0 sense.

      +12 Vote -1 Vote +1

      • ankle explosion hr celebration says:

        if the Drug Users were important people, say congressmen, it would definitely happen (and to some extent, make sense).

        Obviously MLB superstars are not as important as congressmen, but they are quite important to Selig and Friends, and since they obviously have profound pull with the DEA, they get to decide who is and is not important in this case.

        Vote -1 Vote +1

    • The Public says:

      Gila Monster: here for your reading enjoyment and edification, are some quite clear and thorough illegal PED rules, from Baseball Commissioner Fay Vincent’s 1991 directive.

      http://bizofbaseball.com/docs/1991Memo_Baseballs_Drug_Policy_And_Prevention_Program.pdf

      Of course, there was already precedent aplenty for lengthy drug-related MLB suspensions lasting as long as a full season (see Howe, Steve, 1984).

      Vote -1 Vote +1

    • Jon L. says:

      We don’t know that it’s a legal joke, because we haven’t seen the evidence. It could be that there’s convincing evidence that A-Rod’s culpability goes beyond that of other players. An arbitrator who was agreed upon by the players’ association made this decision. Perhaps he had good reason.

      I see the argument that there are only provisions for suspensions of 50 games, 100 games, or life. However, I’m in the camp that believes that the right to suspend someone for life implicitly comes with the right to suspend them for less than life, however thorny such decisions prove to be in their application.

      +6 Vote -1 Vote +1

  13. cass says:

    This is entirely about doing the Yankees a favor and wiping out A-Rod’s salary from their books.

    Vote -1 Vote +1

    • Pennant says:

      Then Selig didn’t do any favors for the Red Sox, Rays, Orioles. If there was a conspiracy, surely Selig would sell to the highest bidder and those 3 teams and others want to see a .244 680 ops ARod in the Yankees lineup for 162 games

      Vote -1 Vote +1

  14. MJ says:

    Selig works for the owners. He just put an additional ~25M in the pocket of a team’s owners. The Selig era is/will be known for four things (in no particular order):

    1. Steriods (they were in MLB before he became commish, but he neglected it, until the public backlash).
    2. Incredibly increasing MLB revenue stream
    3. Incredibly increasing the % of revenues going to owners vs players
    4. World Series cancelation

    I will always remember the All-Star game that ended in a tie, but the All-Star game has become a joke (70 some players named, some named, not wanting to play).

    Wow, this post sounds like I dislike baseball, but I love it. Can’t quit it. Am I a fool? Probably.

    +15 Vote -1 Vote +1

    • GilaMonster says:

      He’ll get credit for the brilliant and revolutionary MLBAM, but we know Selig had nothing to do with that because he is still confused by e-mail and cell phones.

      Vote -1 Vote +1

    • pft says:

      He must have cost the owners far more on legal fees, investigation costs and buying of evidence and testimony.

      He saved the Yankees owners 25 million, but that does not help the other 29 owners

      Vote -1 Vote +1

      • MJ says:

        Simply cost of doing business. There is a recurring cost to protect your assets.

        If it was $25M in legal fees, which I doubt, you can bet it was an investment against future expenses.

        Vote -1 Vote +1

    • Sabertooth says:

      5. Looted taxpayers for new stadiums (except in SF!) during the steroid era, which “saved” MLB after 1994.

      6. Feigned shock, shock! that there were steroids in MLB… after the taxpayers were looted.

      7. Rounded up the unpopular suspects.

      8. Would anyone care for some bread? Circuses?

      +14 Vote -1 Vote +1

      • Sabertooth says:

        Hey, thanks for all the thumbs up! Would anyone like to discuss the Steroids built Stadiums idea further? Selig’s owners have been bandits during the steroid era; how are they Now the Protectors of the Integrity of Anything?

        Why did MLB wait until 2007 to play an All-Star Game in SF, one of the most beautiful venues in sports, seven years after it opened in 2000?

        Because too many of Selig’s owners in too many cities had yet to loot their local taxpayers, and show casing the House that Barry Built would have exposed the non-SF owners grift.

        Vote -1 Vote +1

        • edb says:

          Its hard to remember everything back that far but is it possible the owners and public were unaware of the dangers of PED use, similar to the NFL and concussions? The NFL was made by big hits but now they are being legislated out of the game.

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  15. Mike Green says:

    Presumably the arbitrator took into account the long history that A-Rod had with PEDs in assessing what sanction was necessary to uphold the best interests of the game.

    This isn’t a Buck Weaver situation.

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  16. noseeum says:

    I have to assume the punishment is more because of his attempted obstruction of the investigation rather than the steroid usage. It’s one thing to take steroids. It’s quite another that once you hear MLB is investigating, you attempt to buy all of the records of the clinic so you can destroy them. If that allegation was proven in the arbitrator’s eyes he’s lucky Selig didn’t ban him for life.

    +8 Vote -1 Vote +1

    • Richie says:

      Exactamundo. But then if your overwhelming desire is to prove that “the public are idiots”, I guess it’s kind of counterproductive to mention this, isn’t it?

      As to why or how that entirely slipped Wendy’s mind, well …

      Vote -1 Vote +1

    • pft says:

      Assuming Arod wanted to buy his own private medical records to stop them from being leaked to the public through the media. Whats wrong with that? In fact, I thought buying someone elses private medical records, which was what MLB did, was a crime under HIPPA.

      Vote -1 Vote +1

      • AK7007 says:

        Technically, Bosch didn’t have a license, so there’s no legal confidentially. However, it’s pretty fucked up that MLB thinks they are allowed to buy up records, but if somebody else tries to do it – basis for extra suspension!

        Part of the originally agreed 50-100-lifetime ban setup includes the consideration that players are trying to hide their usage. No player is openly using, waiting for their ban to come along. Don’t punish them extra for hiding drug use. We already knew they were trying to hide it when we agreed upon a suspension for using.

        Vote -1 Vote +1

        • Jiveballer says:

          It seems pretty unfair to strip HIPAA confidentiality from a patient due to the status of the care-giver. If the patient had reason to believe Bosch was a licensed physician the records should be kept private.

          Vote -1 Vote +1

      • RC says:

        “Technically, Bosch didn’t have a license, so there’s no legal confidentially. ”

        This isn’t true at all. You don’t have to have a medical license to be bound by HIPAA (and I say this as someone who works in HIPAA compliance). In fact, the vast majority of HIPAA cases aren’t doctors, they’re administrative/etc people.

        If you have someone’s medical records, giving them to someone else without the subject’s permission is a violation.

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      • edb says:

        This would be more like if Arod tried to buy his records from his nutritionist because Bosch is not a physician hence no “medical records.” HIPPA has no jurisdiction here. Also, HIPPA does not regulate the purchase of illegal drugs.

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    • craig richards says:

      WHat the hell Are you talking about? Jesus H. Montero, there is NO proof off such an accusation. There does seem plenty of talk that the “dealer” might have been paid but worse, faces no penalty. I say Selig needs to be gotten rid of, retrospectively.

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  17. Brad says:

    I am pleased with the decision. At the least it leads to nonstop, entertaining comments at Fangraphs by commenters are only as pompous as they are self-righteous.

    Is the decision fair? It depends on your paradigm (and no, there isn’t just one proper paradigm no matter how much subtle rhetoric Fangraphs uses) and most commenter’s paradigms are completely hilarious. Thanks for the laughs, oh would be expert moralists. *snickers*

    -25 Vote -1 Vote +1

  18. kevinthecomic says:

    Thanks Wendy. Another great article as usual.

    I wonder if the source of the original suspension is found in Section 2 regarding the ‘facilitation of sale’ of banned substances? I seem to remember some reporting early on regarding A-Rod promoting the clinic, telling other players about the clinic, etc. Then, the Commish can suspend under 7G2 which, assuming I am reading it right, contains no limits or guidelines regarding the number of games. This then makes it possible to grab the number 211 out of the air.

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  19. Ben says:

    For the “best interests of baseball” clause to be used in this way raises the potential for the 50-100-lifetime regime to be meaningless, as well.

    No it doesn’t. MLB clearly views the ARod case as exceptional and imposed an exceptional punishment. Who knows why exactly, but clearly the arbiter agreed to some extent with MLB. There’s no reason to worry about the 50-100-lifetime regime if MLB’s only worried about cases in which someone’s been reasonably determined guilty but hasn’t tested positive. Some slippery slopes aren’t so slippery and some capricious abuses of power may not be for the worse.

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    • pft says:

      Last arbitrator who did not agree with MLB was fired.

      +14 Vote -1 Vote +1

      • noseeum says:

        But it’s telling that the union is not taking that route. The union has the same right as MLB to fire an arbitrator. Instead they said we disagree with the decision but respect the process. That’s a big blow to Arod. The union knows the case. If it was blatantly ridiculous and created a precedent that was a major concern for every other player, the union would have fired this guy today.

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        • pft says:

          The union has kind of bent over for MLB in recent years. A bit of complacency perhaps, but the players salary % of revenues is in decline. They should have taken a harder stand on the QO. They never should have allowed the tie in of revenue sharing with the luxury tax.

          I think if they had tougher union leadership Bud never pulls what he did with Arod.

          A big problem with some unions is the leaders becoming co-opted by the industry and relinquishes gains obtained by years of conflict.

          Obviously, the players are doing well so probably don’t want to risk a couple of pay checks for future players, even though they are enjoying the benefits of numerous work stoppages by the previous generation.

          +6 Vote -1 Vote +1

    • Rob says:

      And when MLB views the next case as exceptional?

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  20. pft says:

    If you look at Arods numbers the last few years there is no suggestion that whatever he was taking worked. A typical age related decline curve unlike some players like David Ortiz

    In fact, if you take steroids at levels low enough that can not be detected by testing, perhaps you are not enhancing your performance all that much. Dr’s prescribe steroids in therapeutic doses to elderly and AIDS patients, none of them can hit much either.

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    • ankle explosion hr celebration says:

      “In fact, if you take steroids at levels low enough that can not be detected by testing, perhaps you are not enhancing your performance all that much.”

      Wouldn’t that just be incredibly stupid? “Hey, I’m going to expose myself to all of the risk of destroying my obviously Hall-quality career, in exchange for none of the benefits.” Not saying that he wouldn’t do it; I can’t fathom, honestly, why folks like Bonds and A-Rod, who were already inner-circle, top-tier Hall of Famers, would take steroids at all, but still.

      “If you look at Arods numbers the last few years there is no suggestion that whatever he was taking worked. A typical age related decline curve unlike some players like David Ortiz”

      true (hopefully this link works): http://www.fangraphs.com/graphsw.aspx?players=745,1274,1011586,1001400,1001124

      If anything he’s doing a little worse than some (admittedly great) Hall 3Bs like Brett and Schmidt.

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      • pft says:

        Perhaps his natural testosterone levels are so low because production has shut down due to years of steroid abuse that any steroids are just to replace testosterone to normal levels.

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      • Roger says:

        We know ARod admitted using while he was in Texas, but we don’t know have any indication when he began. Steroids don’t so much prevent aging as they lift the baseline of performance. If he’s been using for, say, 20 years, he’s still going to face an aging-related decline unless he uses even more.

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  21. DrBGiantsfan says:

    Yeah, I think there is more to this than purchasing substances or referring others to the clinic. I’m pretty sure that buying records then destroying them would be considered, not just impeding the investigation, but outright Obstruction of Justice in any court of law.

    I agree with the person above who said is it telling that the MLBPA is “respecting the process” here.

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    • Iron says:

      It isn’t obstruction of justice because there was no criminal prosecution in this case.

      +7 Vote -1 Vote +1

      • DrBGiantsfan says:

        But it’s the equivalent in the MLB process.

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        • Neal says:

          yeah but if you’re going to go by it’s equivalence then the evidence by MLB gets thrown out in any court. and a-rod gets a return verdict of not guilty. selig can’t have it both ways under this distinction. and the players at this point are better off without a union that’s become a joke.

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        • DrBGiantsfan says:

          You know what evidence MLB has and doesn’t have?

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        • jpg says:

          @ Neal the union hasn’t become a joke. The union is simply listening to its clean constituents, who have made it clear that they no longer want the union supporting PED users with the type of rigor featured in the past. Look at how Ziegler and other players panned the Peralta signing. Compare that to when Braun failed his first PED test, when players came out in droves to support him. There has definitely been a shift in sentiment regarding how clean players feel their dirty counterparts should be treated.

          +5 Vote -1 Vote +1

  22. DrBGiantsfan says:

    I’m also pretty sure that the MLBPA has a big interest in keeping these issues within the domain of JD/CBA/Arbitration and out of the courts. The MLBPA might well point to the Bonds case as exhibit A of why. It’s one thing to get suspended for a season, quite another to be convicted of a crime. If ARod thinks he can get a better deal in the courts, he might well consider that what got Bonds convicted of Obstruction of Justice pales in comparison to buying up records and destroying them.

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  23. pro-flame says:

    ” I thought buying someone elses private medical records, which was what MLB did, was a crime under HIPPA.”

    LOL, what medical degree does Bosch have ???

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    • WMT says:

      I laughed at that one too. A ledger of illegal drug buys created by a drug dealer is a protected medical record under HIPAA? Um….

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      • Richie says:

        Well, it is if your rhetorical purpose is to prove how smart you are. Which, unhappily, is most always the purpose when Saberists exhorciate about how dare people criticize steroid users. Remember when Joe Sheehan screamed about how DARE! people accuse Barry Bonds of using steroids? Hasn’t changed any since then.

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      • pft says:

        They are not illegal drugs. All those drugs can be legally obtained by prescription. Just ask many AUDS patients.

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        • WMT says:

          Because Bosch can prescribe things? HIPAA doesn’t even apply to Biogenesis, because it’s not a covered entity. Go peddle your nonsense elsewhere.

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    • pft says:

      That Bosch misrepresented himself is moot. His patients would have an expectation of HIPPA protection. Also, some of the records came from licensed medical companies from whom Bosch purchased the drugs.

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      • DrBGiantsfan says:

        What is a misrepresentation is to say that HIPPA has any application in this situation at all.

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        • Jiveballer says:

          Bosch wasn’t selling loaded dirty syringes out of a dark alley. From what I have seen, Biogenesis could have presented as a legit clinic and fooled many of its patients.

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      • edb says:

        They got Alex’s records from licensed medical companies? So you’re saying there is a paper trail stating that Pfizer knew they were selling HGH to Arod? That seems far-fetched. MLB never purchased ARod’s medical records they purchased Bosch’s records of Alex’s regiment. Two VERY different things.

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  24. Tim says:

    I wonder at what point Selig will wish he had just given him the 50? If the best interest in baseball are actually in play, can this circus actually be worth the additional 112 games, even now?

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  25. rubesandbabes says:

    I see the ruling as an enforcement of the original ban, with the practical concession to lop off the 2013 games.

    Nice article. Yes, they’re hunting A-Rod.

    My not legally informed question would be couldn’t the results of the Biogenesis investigation themselves burn through the 50-100-lifetime suspension list? ‘He did this, this and also this. Three drugs. Three penalties. Lifetime ban.’

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  26. Geoff says:

    Wouldn’t proving prejudice be easy? Correct me if I’m wrong but the last arbitrator to vote against MLB ended up getting fired (Shyan Das with the Ryan Braun fiasco). Doesn’t that in and of itself make this look prejudicial? Perhaps Horowitz merely feared for his extra paycheque.

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  27. rustydude says:

    Wendy, I wonder if this should be looked at as a one off.

    Your points about the the bizarre penalty and the relative inaction by the MLBPA, are good ones. But what if the expectations around the league, owners, players, union, etc., is that this was a unique case with unique remedies and punishments, and that the provisions of the JDA will snap firmly back into place on all future violations.

    I think a lot of folks had ARod exhaustion and might be looking the other way right now, while simultaneously counting on due process going forward.

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    • Richie says:

      Like many idealized law students, Wendy went into law in order to protect the hordes of wrongly accused people out there against ‘The MAN!’ She’ll jump through whatever logical hoops she has to to defend the accused, even when independent arbitrators and even his own pledged supporters (MLBPA) say ‘yeah, right’.

      -17 Vote -1 Vote +1

      • rustydude says:

        in order to protect the hordes of wrongly accused people out there against ‘The MAN!’

        You say that as if it’s a bad thing. May you never encounter a crisis where you might need the representation of a lawyer, not to mention the benefits of the constitution and amendments which require due process, the right to an attorney and a jury of your peers. If you do skate by all your life w/o the need, then cheers, dude!

        +11 Vote -1 Vote +1

        • Richie says:

          This is actually a part of the mania. No, I’ve never been charged with a crime I didn’t commit. Nor has my brother, nor ever were my parents, my grandparents, any of my friends (a handful of merited-as-heck charges there, tho’). But people who enjoy lawyer TV shows too much think it happens ALL! the friggin’ TIME! And thus paranoia colors their analysis of even civil cases, where there’s no presumption of anyone’s innocence.

          -11 Vote -1 Vote +1

        • cass says:

          Richie, you’re of European descent and have relatively pale skin, right?

          +5 Vote -1 Vote +1

        • RC says:

          Not only do people regularly get accused of things they didn’t do, people regularly get convicted.

          The innocence project has gotten a whole bunch of people out of jail with DNA evidence that directly contradicted their convictions.

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      • sk says:

        my father was falsely accused of a crime when i was a teenager. it was the most painful thing we’ve ever had to deal with. 10 years later we’re still trying to deal with the aftermath. im incredibly thankful for people like Wendy, even though you aren’t.

        and while i concede A-Rod probably deserves to be suspended (in line with the JDA), i think the way Selig has treated him is a shameful abuse of power.

        +6 Vote -1 Vote +1

    • pft says:

      That kind of rationalization is an excuse for inaction. A breach in the dike does not repair itself. You either patch it or it gets bigger until the dike fails

      Vote -1 Vote +1

    • Naliamegod says:

      Why is this a unique case? What about this situation that makes Alex Rodriguez’s case far more unique than Braun or Melky Cabrera? So far the only things being mentioned as “unique” is that Alex apparently promoted the clinic to other players and that he is Alex Rodriguez.

      Unless it was discovered that Alex did something really out there (like he was personally investing in the clinic as a business), then the “unique” argument really doesn’t hold. And if it doesn’t hold, what else is going to stop the MLB from doing things in the future?

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    • Catoblepas says:

      That also just isn’t really how the US legal system works. Precedent and stare decisis aren’t as strong as they are in the English system, but judges and arbitrators still have to consider earlier interpretations when considering agreements like the MLBPA, which necessarily can’t account for every possible situation. Arbitrators in the future (until there’s a new PA) will have to determine what is fair, and this will necessarily be part of that determination.

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  28. Antonio Bananas says:

    Teams with PED users should still have to pay that salary somewhere. Maybe to the poorest team in their division? Keep teams on the hook, possibly help them police their players and be more selective. Of course ultimately, this has to do with my Yankee hatred and Rays fandom, but still. Maybe it goes to a youth program?

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    • edb says:

      Wow—let’s turn baseball into a welfare state! Who cares if a team has no fans? They deserve the right to pocket money made by others. After all its not their fault they started a franchise in an economically depressed region with a low population density.

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  29. Joel says:

    “Still, questions remained how Selig arrived at a 211-game suspension.”

    I know you answered the question implicitly, but it sure seems like nice cover for an arbitrator to “reduce” the suspension to a clean season’s worth.

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  30. Sammy Sooser says:

    Wendy,
    Thank you for the objectivity and levity you bring to these emotion-driving decisions. I would think MLB, with the all the new billions they’re raking in, wouldn’t be so motivated to display that they have out-clauses to every contract they sign.

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    • Naliamegod says:

      I doubt it. From what players have publicly said, it looks like a no tolerance POV on steroid usage is popular among players.

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  31. bookbook says:

    As I feared, we’re overdue for a strike. Actually, given the class with which the owners protect their golden egg, a lockout is probably the way this will unfold.

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  32. Kyung Hae says:

    Wendy, get over it. Your man is dirty and always has been.

    -18 Vote -1 Vote +1

  33. joeyp says:

    wendy is full of what makes the grass grow. she has even less credibility than Arod. Evidence from Bosch was submitted that Arod repeatedly took masking agents to avoid testing positive. others testified Arod tried to purchase the evidence, which no doubt Wendy believes Arod would voluntarilly turn in Since he would never obstruct Justice……. from her writing one would wonder how Wendy would react to a Woman who screams Rape if it suits her purpose.

    MLB Was complicit with McGwire and Sosa,there’s no denying, But are they to allow it to go on forever…. We allowed slavery for a hundred years too wendy…… there comes a time when enough is enough, and wisely Now is that time. Cheaters are making a mockery of sports and something needed to be done.

    -29 Vote -1 Vote +1

  34. AK7007 says:

    MLB has fucked up so royally, that at this point I’m wondering if there is any rational reason for why they are treating A-rod so differently from their agreed upon disciplinary action. I don’t think that rationality is absurd to ask, but I’m pretty sure that their logic is of the Ken Burns “Those motherfuckers should suffer” variety.

    Be a damned grown-up. Don’t get all astounded at the concept that somebody would do shady shit to cover up their drug use and punish them extra. The 50-100-lifetime ban included the idea that they would be covering it up. Punishment beyond the use itself wasn’t part of the agreement.

    You have to realize that while from all outward impressions, (and the illegally leaked 2003 test) A-rod is guilty as can be. But he’s being punished way out of line with what the agreed upon punishment was. If you want to punish players more, change the rules. Don’t ignore them outright and become a vigilante.

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  35. Swingdoc says:

    This is obviously a very polarized discussion and both sides will use facts to support their opinion. IMHO, most obstruction by the offenders should be considered expected and included under the 50-100-lifetime penalties (i.e Melky, Braun etc); however, when the obstruction escalates to the point of lives being threatened, I have a hard time seeing where this would not justify the commissioner’s use of discretion for an additional 61, 161 games or even a lifetime ban. I don’t think it’s too much of a stretch to think what could have happened if Bosch had accepted the Columbia trip offered by Arod’s associate. Wasn’t it this type of behavior that the discretionary provisions were designed for?

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    • edb says:

      True but anti-doping advocates would argue that allowing these “role models” to prosper likely contributes to the death of other non-professional or youth juicers. I mean that’s why PEDs are bad right?

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  36. Nathan says:

    I think it’s really simple. It isn’t 211 games, specifically. It was a nice, rounded off way to suspend him — the then remainder of this season, plus the entire next season.

    In other words, Selig probably has/had good evidence A-Rod did something wrong and legitimately suspend-able, but due to other factors (the circus that is A-Rod, influence from the Yankee’s front office and ownership, Selig’s own personal grudges/butthurt feelings), we got this arbitrary decision meant to be putative, instead of one that actually made any sense.

    Based on what we think we know about the evidence, it seems to me like they should’ve just suspended him under the JDA for 100 games.

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  37. chuckb says:

    So ARod gets a 162 game punishment for breaking MLB’s rules. By violating the JDA and the CBA in imposing a punishment that isn’t at all explicable by the JDA and CBA, Bud Selig (and the arbitrator, of course) has also broken MLB’s rules. The rules simply do not allow him to act as supreme overlord and impose any suspension he wants for PED use. How long will Selig’s suspension be?

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  38. JMo37 says:

    I find it interesting that Selig and his cronies originally agreed to such a high number of games in the suspension without having anything to base it on.

    I find it very interesting that A-Rod is not allowed into the post season, yet in 2013 players were allowed to compete in the playoffs despite receiving a ban for the season (interesting how those dates work out isn’t it).

    It seems Bud leans towards the owners (he is a former owner and took part in collusion) and has not treated A-Rod fairly.

    To the commissioner of MLB, 2015

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  39. people to cake ratio says:

    211 games because:
    a) if a-rod accepts the punishment, he’s out until 2015.
    b) if a-rod appeals the suspension — presuming it’s decided before the start of the 2014 season — and:
    i) it’s upheld, he’s out until mid-2015
    ii) it’s reduced, he could still be out most or all of 2014
    c) bud selig retires january 2015

    how much do you think bud wants to spend his last season dealing with the a-rod suspension? he just wants him to go away and be the next guy’s problem.

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  40. Paul C. says:

    Now that the arbitration decision is publicly available, we now know the punishment was rendered pursuant to 7.G.2, because the conduct involved continuous and prolonged use of multiple substances (as the decision states was shown by clear and convincing evidence). Under 7.G.2, the punishment must meet a just cause standard, which was met here. But what should make a lot of the self-righteous commenters on this thread happy is that the 7.A.2 penalty structure was used as a guide in assessing the punishment for just cause.

    Once again many commenters have mistaken being contrarian for being more intelligent or a more “independent” thinker. No, and no. Sometimes — not always, but sometimes — the institution actually has the facts on its side and the correct reasoning. You are more intelligent if you actually recognize those instances instead of reflexively arguing the contrarian or minority position.

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    • Paul C. says:

      Correction: 7.A, not 7.A.2

      Vote -1 Vote +1

    • pft says:

      Don’t confuse whats written in 7G2 with the arbitrators words. 7G2 says nothing about continuous use of multiple substances.

      The arbitrator is making his own standard by taking what is meant to be a progressive penalty and applying 2 penalties into one verdict. That certainly was not the intent of the JDA. He then danced around it all and avoided giving a clear break down of the actual penalty for PED use and the penalty for the obstruction charges. He also protected Selig from having to answer the same question by not allowing Arods team to question him.

      The JDA test program tests for multiple drugs from each sample. The fact that multiple substances are possible if not likely to be found in a single sample (eg Manny they found HCG and Testosterone in his first positive test, yet suspended him only for 50 games) and the fact there is nothing in the JDA about an additional penalty for each additional drug, meant they did not agree to have such a penalty system.

      To me the arbitrator rationalized a predetermined outcome in the only way he could to come up with something close to 162 games, which coincidentally was MLB’s final offer before the arbitration. In other word, the arbitrator dispensed his own brand of justice, while trying to make it look like he followed the JDA/CBA (which is his ethical responsibility to do). The MLBPA, a party of the JDA, disagrees with the length of the suspension.

      Sometimes institutions just make their own rules and pass them off as something else. Power and money allow them to get propaganda shows like 60 minutes aired, and the real threat Horowitz faced to be fired like the last arbitrator helps them get the verdicts they want.

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      • Paul C. says:

        Of course it does. It gives the authority to the Commissioner to punish any player violating Section 2, which has the explicit prohibition on use or possession of PEDs. The idea that the offense must fit neatly into the statutory formula (conceptually the JDA is a statutory framework), so that you can mechanically apply the 7.A punishment, and if it doesn’t it may remain unpunished (or shoe-horned back into 7.A), goes against the idea that courts are necessary at all. Clearly there is no statutory framework that neatly covers every single permutation of human conduct, obviating any need to seek redress from a court. This is what courts and arbitrators do, they apply law (in this case from a statutory framework) to facts where a mechanical formula doesn’t easily apply. Why did the MLBPA agree to have an arbitration process in the first place, if any offense could just be shoe-horned into 7.A? Here the conduct violated Section 2, didn’t fit into 7.A, and then resulted in punishment that met the just cause standard, in accordance with the CBA/JDA and as determined by the arbitrator (also in keeping with the CBA/JDA).

        You honestly think an appearance on 60 Minutes would influence an arbitrator who has spent countless hours seeing presented evidence and studying the applicable statute/rules and precedent, an arbitrator trained in legal analysis and due process?

        It’s not clear what you think the correct decision would have been, but if you want this all to be shoehorned into 7.A, then there is quite a strong argument that ARod should be banned for life. If that is your position, then I see some consistency and logic. The PED tests are a proxy for monitoring the conduct of a player around the clock to determine if a player used PEDs, which clearly is absurd. But if there is other strong evidence of multiple and separate offenses, then they should properly be considered as such. The arbitrator ruled that applying 7.A and giving ARod all three strikes in this single proceeding was not a correct reading and application of the CBA provisions, so he assessed the punishment under a just cause standard pursuant to 7.G.2. This is what judges and arbitrators do every day in the Anglo-American legal system.

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        • edb says:

          The numerical guidelines refer to player’s who test positive during (or preceding) any given season. The obvious theory being since that is the only proof of the player’s use they should be penalized for that season (or whenever the arbitrator gets around to hearing the case). In the case of Non-analytical positives there is the potential to prove prolonged usage–hence the leeway afforded in penalties relating to those types of violations.

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  41. SleepNowInTheFire says:

    Through all of this, I’m glad that we can finally confirm that Craig Counsell was, by default, the best hitter of the steroid era, given that he, without a doubt, was completely clean.

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  42. Estoy pensando en escribir un artículo sobre el tema relacionado. Definitivamente compartirlo y esperando a leer algunos blogs más interesantes de ti.

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