Is Selig Preparing To Use The Nuclear Option?

Reports surfaced Tuesday on ESPN.com that Ryan Braun refused to answer questions posed by Major League Baseball’s lawyers when they interviewed him as part of the Biogenesis investigation. Alex Rodriguez is scheduled to be interviewed this Friday and, according to ESPN, also will refuse to answer MLB’s questions. Despite silence from Braun and Rodriguez, MLB apparently plans to suspend the two players — and perhaps 20 others — sometime after the All-Star break. But Braun and Rodriguez have been called out for special punishment: Not only does MLB plan to suspend the pair 50 games for possessing or using a banned substance, the league will reportedly add on another 50 games for lying about their use of banned substances.

ESPN’s report generated lots of questions and commentary. Who leaked this information to ESPN and why? Did MLB leak it to put pressure on Braun and Rodriguez to cooperate? Did Braun or the players’ union leak it to show the league’s heavy handedness? How can the league already have decided to suspend Rodriguez for 100 games before he’s even met with investigators?

But perhaps the most pressing question is: How can a player be suspended for lying when he remained silent in response to questions from MLB’s investigators? And the corollary: If the “lying” didn’t take place during the investigation, does MLB plan to rely on years-old public statements? Wouldn’t that open a huge can of worms? Craig Calcaterra, over at Hardball Talk, had some interesting things to say on these issues:

Last year Melky Cabrera famously — and quite ridiculously — attempted to pass off a phony website as an excuse for his positive PED test. It caused MLB to actually have to conduct an investigation into the phony company, purchase phony products and, at least according to some reports, travel to the Dominican Republic. This, apart from its hilarity, was blatant lying, deception and fraud. And yet, at the end of it, Melky Cabrera was given only a 50-game suspension.

If what Melky Cabrera did wasn’t worthy of double discipline, how on earth could Braun offering denials or, more likely, not saying anything, justify it?

Craig’s comments sent me scurrying back to the Collective Bargaining Agreement and the Joint Drug Policy to see if I could figure out MLB’s 100-game suspension plan. I’ve actually written on this point before, back in June, in my primer on all things Biogenesis. In that post, I pointed to two different “just cause” provisions — one in the CBA and one in the Joint Drug Policy — that MLB would likely rely on.

CBA Article 7, Section A provides:

The Parties recognize that a Player may be subjected to disciplinary action for just cause by his Club, the Senior Vice President, Standards and On-Field Operations or the Commissioner. Therefore, in Grievances regarding discipline, the issue to be resolved shall be whether there has been just cause for the penalty imposed.

In Section B,” just cause” is defined:

Players 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.

. . .

And then there’s the curious “just cause” provision in the Joint Drug Policy. Section 7.G.2. gives the commissioner the authority to suspend any player for “just cause” if he violates the prohibitions in Section 2, even if that violation is not specifically set forth in Sections 7.A through 7.F. With the express language in Section 7.A. authorizing discipline if a player “uses or possesses” PEDs, the just cause “catch-all” in 7.G.2 seems unnecessary under these circumstances.

What I failed to explain in June — because I hadn’t yet figured it out myself — is that a suspension under the CBA’s just cause provision may very well be appealable only to Commissioner Selig and not to MLB’s agreed-upon neutral arbitrator. 

I’m calling this Selig’s “nuclear option.” (You can read this for an explanation of the term “nuclear option” in the political context.)

The Joint Drug Policy sets up a specific and detailed appeal process for players suspended for use or possession of a performance enhancing substance. Under Section 8, a player may appeal such a suspension to an arbitration panel composed of either a single arbitrator jointly selected by the league and the players’ association, or a three-arbitrator panel with the jointly selected arbitrator and two others — one picked by the league and one picked by the union.

In any such appeal, MLB has the burden to prove the player used or possessed the banned substance; and the player has the opportunity to challenge the league’s evidence. The arbitrator then decides if the league met its burden of proof. If so, the suspension is upheld. If not, it’s overturned. The arbitrator is not empowered to reduce the duration of the suspension; those are set forth in the Policy: 50 games for the first violation; 100 games for the second violation; and permanent suspension for a third violation. This is the appeal process Braun utilized in late 2011 after he purportedly tested positive for testosterone, a banned substance.

But the CBA has a different appeal process — called the grievance process — for players disciplined for reasons other than a violation of the Joint Drug Policy. Article XI, Section A (1)(a) describes a “grievance,” in part, as “a complaint which involves the existence or interpretation of, or compliance with, any agreement, or any provision of any agreement, between the Association and the Clubs, or any of them.” Based on that language, discipline imposed on a player for violating the “just cause” provision of the CBA would be subject to the one of the grievance procedures set forth in Article XI.

But Section A(1)(b) excludes from that definition of grievance a “complaint which involves the action taken with respect to a Player or Players by the Commissioner involving the preservation of the integrity of, or maintenance of public confidence in, the game of baseball.” When a player is suspended on this basis, his only appeal route is to the commissioner, who must promptly have a hearing with each side presenting evidence in support of its position. When the commissioner makes his decision, it is final and may not be further appealed to an arbitrator or a court. 

In other words, Bud Selig could conclude that Braun and Rodriguez — by refusing to cooperate with the Biogenesis investigation — have acted in a way that is “materially detrimental or materially prejudicial to the best interests of Baseball” — giving the commissioner “just cause” to suspend them for an additional 50 games. And because such conduct “undermined the integrity of and public confidence in baseball,” the disciplinary decision would be appealable only to the commissioner himself.

There is precedent for MLB’s commissioner to use the “best interests of baseball clause” to discipline a player for failing to answer questions or cooperate in a league investigation. In 1980, then-commissioner Bowie Kuhn suspended Ferguson Jenkins after Jenkins was arrested in Toronto on cocaine, marijuana and hashish charges, but refused to answer questions when summoned to the commissioner’s office. Kuhn suspended Jenkins without pay. Two weeks later, an arbitrator overturned the Kuhn’s decision after he concluded Jenkins couldn’t be punished for failing to help the commissioner impose a punishment on him — essentially, a private Fifth Amendment right.

But the plain language of Article XI, Section A(1)(b) says there is no appeal beyond the commissioner when he invokes the “best interests of baseball” provision. Similar language has been used in CBAs dating back to the 1970s (you can read the old CBAs at Maury Brown’s Biz of Baseball site). It’s not clear to me what the arbitrator’s authority was in Ferguson Jenkins’ case or that an arbitrator would have any authority to overrule Selig should he invoke that provision against Braun and Rodriguez.

Without any oversight by a neutral arbitrator or a court, Bud Selig is in a position to act as the investigator, adjudicator and final judge on Braun, Rodriguez and, perhaps, others.

The Biogenesis investigation is already a legal and ethical mess. MLB sued Biogenesis and Tony Bosch on weak legal grounds with the prime goal of obtaining documents the league couldn’t get any other way. Then the league cut a deal with Bosch, agreeing to cover his legal fees and indemnify him against actions by the players. The league also reportedly agreed to pay former Biogenesis employer Porter Fischer — the original whistleblower — for the boxes and boxes of documents he previously shared with the Miami New Times. 

Invoking the “bests interests of baseball” clause and precluding an appeal to an arbitrator would just add to the legal and ethical morass the commissioner has created.




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Wendy writes about sports and the business of sports. She's been published most recently by Vice Sports, Deadspin and NewYorker.com. You can find her work at wendythurm.pressfolios.com and follow her on Twitter @hangingsliders.


133 Responses to “Is Selig Preparing To Use The Nuclear Option?”

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  1. 65Kyle08 says:

    Free Ryan braun

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  2. KillahYeast says:

    Insert gif of mind being blown here.

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  3. AndyRTR says:

    Interestingly, the Ferguson Jenkins decision you cited may be very important to Braun, Rodriguez, or any other player the League seeks to discipline under your “nuclear” option. Often times interpretations of various elements in the grievance process are made based upon prior precedent (similar to case-law interpretation in the legal context.) If the language used by Selig to enforce discipline has not substantively changed since the Jenkins decision, he will likely be bound by the same rules imposed by the arbitrator on Kuhn. The logic behind this being that if either party (MLB or the Union) didn’t like the arbitrator’s decision, they had ample opportunity to negotiate to a different outcome in future CBAs.

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  4. Pennant says:

    I wonder if MLB asked Braun questions other than those whose answers would be self-incriminating, would that make a difference? MLB is trying to enforce its PED policy and maybe there is good reason to believe Braun has info on issues besides himself, and he refuses to answer, then is that just cause? Of course there will probably be lots of other evidence needed to suspend him; I can’t imagine refusing to answer questions alone being a reason to suspend anyone.

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    • JKB says:

      “Hi Ryan, we are going to read you some statements about Alex Rodriguez today. If you hear a statement that you know to be false, please turn your head and look at that wall on your left, and then turn your head the other way and look at the wall on your right, then look back at me. If you hear a statement that you know to be true, please carry on as in our previous interrogations and say or do nothing. Thanks, now lets get started.”

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  5. LK says:

    Nothing says “protecting the integrity of baseball” like suspending players and giving them no recourse to appeal.

    +33 Vote -1 Vote +1

    • Hunter says:

      Nothing says “entertainment” like Bud Selig going batshit crazy.

      Enjoy the ride, folks!

      +9 Vote -1 Vote +1

    • fartbox420 says:

      Could Braun et. al. appeal to the NLRB? I am no attorney so I have no idea, but it doesn’t seem conscionable that Selig could be judge, jury, and executioner with literally no recourse whatsoever.

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  6. Tom says:

    “Invoking the “bests interests of baseball” clause and precluding an appeal to an arbitrator would just add to the legal and ethical morass the commissioner has created.” LOL Wendy’s final sentence kills me! ROFLOL. “The commissioner has created.”????? Um, Wendy? Hello? Honey? Sweetheart? Dear Wendy, the players CREATED this “morass” when they decided to cheat. That’s right, the players cheated! Are we just happy to sweep this fact under the carpet? Oh wait, you probably believe that the steroid-induced abilities of the morally-challenged, a55hole A-Rod has been one of the best players in baseball. You probably worship at the shrine of Bonds.

    Wallace Matthews’ ESPN article ( ) says it all: “Steroid or HGH use is cheating, plain and simple. And by definition, cheaters lack integrity, sportsmanship and character. Strike one, strike two, strike three.”

    Enough said. Stop defending the cheaters and get the game back to true athletic ability.

    -191 Vote -1 Vote +1

    • nchio says:

      Not gonna quibble with your point so much as ask that you rein in the sexist condescension.

      +126 Vote -1 Vote +1

    • WaLOLace Matthews says:

      Yeah, take that everyone whose name was on a piece of paper!

      +26 Vote -1 Vote +1

    • LK says:

      The whole point of this is whether or not there actually exists enough evidence to prove that the players did in fact cheat.

      Also, you’re citing Wallace Matthews? Talk about ROFL.

      +17 Vote -1 Vote +1

    • Jaack says:

      Where is this Bonds shrine and where can I sign up for this cult?

      +31 Vote -1 Vote +1

    • Mel says:

      Probably not the best place to display your obsession with The Shining.

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    • Sam says:

      Dear Tom,

      Not only do I not particularly agree with your comment, but I find your patronizing tone to be extremely insulting and inappropriate. If you have a point, just make it without attempting to insult and degrade the writer of this article.

      +57 Vote -1 Vote +1

    • shibboleth says:

      “Enough said,” indeed. Please don’t say any more.

      +25 Vote -1 Vote +1

    • Cidron says:

      Tom.. She is not defending Braun, A-Rod, or any person. She is defending the law and system in place.. And, explaining what the process is, as it applies to this situation. It isnt clear, nor straightforward. She is giving us an insight to it. If you cant see that…. then, you missed the point of the article.

      +19 Vote -1 Vote +1

      • Cheating has been happening in baseball since the first diamond was chalk-outlined on a field somewhere. From spitballs to Ty Cobb’s flying spikes aimed strategically at fielders, to corked bats to spying on the other team to Gaylord Perry’s greasy performance to today’s steroids and HGH usage. If cheating is so narrowly defined, you may as well condemn all players who have played in history.

        What’s different about the cheating today is that there’s a gray area.

        There is no conclusive proof that steroids helps players’ performances, as researched by Eric Walker of High Boskage House. Every proof I’ve seen has been hearsay and “yeah, I took it and WOW, it really helped! (strong placebo effort possible, not scientific proof)” HGH is known by college professor to not help players’ performances, as reported by the Baseball Economist, JC Bradbury. It might help with getting healthy, but there are many substances that help players get healthy, just laws arbitrarily determining which ones are OK and which are not. Kind of like how alcohol is legal but marijuana is not. So the cheating today is cheating, but what if the cheating does not do anything to help them play better?

        These are different than, say, the use of amphetamines which has probably been going on since WW II at least, which clearly allowed players to play at their peak performance level when they should have been tired, which improved their performance over what they should have done if not enhanced. A number of famous players have been outed as users, like Willie Mays and I believe the Yankees teams of the 60’s by Bouton’s book, which included Mickey Mantle, but basically anybody who was in the military in the 40’s and 50’s were given these drugs by the military, and thus more likely to be users in private life too, then sharing that secret with others down the line.

        But how about people who use caffeine or those new energy drinks with multiple doses of caffeine? That’s OK but amphetamine is not, even though the effect is very similar? Isn’t that still cheating, though made OK because it is legal, but there are known health factors to caffeine usage, and some are told by their doctors not to use caffeine, so there are people who for their health do not use caffeine, cannot use caffeine (by doctor or personal health standards), so aren’t the players drinking cheating their fellow players who aren’t using?

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      • sorry, wrong place for reply, would delete it if I could.

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    • Josh says:

      As others have mentioned, this article is not about Its about explaining the CBA, the reules, and the MLB’s legal system in place.

      Discussion over a regulatory authority does not mean anyone is “defending the cheaters”.

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    • funketown says:

      You just scored a -50 without even mentioning the merits of RBIs.

      Well done sir!

      +39 Vote -1 Vote +1

    • (Placed the original reply at the wrong comment, sorry)

      Cheating has been happening in baseball since the first diamond was chalk-outlined on a field somewhere. From spitballs to Ty Cobb’s flying spikes aimed strategically at fielders, to corked bats to spying on the other team to Gaylord Perry’s greasy performance to today’s steroids and HGH usage. If cheating is so narrowly defined, you may as well condemn all players who have played in history.

      What’s different about the cheating today is that there’s a gray area.

      There is no conclusive proof that steroids helps players’ performances, as researched by Eric Walker of High Boskage House. Every proof I’ve seen has been hearsay and “yeah, I took it and WOW, it really helped! (strong placebo effort possible, not scientific proof)” HGH is known by college professor to not help players’ performances, as reported by the Baseball Economist, JC Bradbury. It might help with getting healthy, but there are many substances that help players get healthy, just laws arbitrarily determining which ones are OK and which are not. Kind of like how alcohol is legal but marijuana is not. So the cheating today is cheating, but what if the cheating does not do anything to help them play better?

      These are different than, say, the use of amphetamines which has probably been going on since WW II at least, which clearly allowed players to play at their peak performance level when they should have been tired, which improved their performance over what they should have done if not enhanced. A number of famous players have been outed as users, like Willie Mays and I believe the Yankees teams of the 60?s by Bouton’s book, which included Mickey Mantle, but basically anybody who was in the military in the 40?s and 50?s were given these drugs by the military, and thus more likely to be users in private life too, then sharing that secret with others down the line.

      But how about people who use caffeine or those new energy drinks with multiple doses of caffeine? That’s OK but amphetamine is not, even though the effect is very similar? Isn’t that still cheating, though made OK because it is legal, but there are known health factors to caffeine usage, and some are told by their doctors not to use caffeine, so there are people who for their health do not use caffeine, cannot use caffeine (by doctor or personal health standards), so aren’t the players drinking cheating their fellow players who aren’t using?

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      • guy who knows where the beds are says:

        repetitive racist

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      • jorgesca says:

        health factors to caffeine usage? The same as peanuts consumption for allergic people

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        • LK says:

          I don’t really get the point you’re trying to make. Caffeine, depending on quantity, can have adverse health effects for all people.

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    • Floppy says:

      This isn’t the PFT comments section, sir.

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  7. James says:

    Through possessing little legal knowledge, I can only assume that Selig has gotten his hands on the nuclear launch codes and is threatening to fire on every baseball stadium. I imagine that it has to do with a vast conspiracy of “HGH is the water supply” and the protection of our vital bodily fluids.

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  8. Eugene Freedman says:

    Selig will lose any question to have this not fall under XI(A)(1)(a). It falls under the “covered by” doctrine. Discipline, especially for drug violations, is expressly contained in the CBA. Disputes over these matters are “the existence or interpretation of, or compliance with, any agreement, or any provision of any agreement, between the Association and the Clubs, or any of them.”

    If baseball were truly interested matters “materially detrimental or materially prejudicial to the best interests of Baseball” it would not have leaked the investigation.

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    • Matt says:

      If baseball was truly interested in matters “materially detrimental or materially prejudicial to the best interests of Baseball”, they would fire Bud Selig, resolve the situations in Oakland and Tampa Bay, provide legitimate oversight of umpiring, kick out Loria and the Wilpons, and commission reasoned, scientific studies of “PEDs” with actual medical use to see if they can be used to aid in recovery of injuries under doctor’s care without “enhancing performance”. But Selig would rather conduct witch hunts and protect “the human element”.

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      • Doug Lampert says:

        I don’t think the Wilpons should be on this list.
        Yes, they had financial troubles, but they still spend money on the team.

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        • Matt says:

          The Wilpons’ infatuation with debt as a financial tool is detrimental to their ability to successfully run the franchise. They have not spent any money since 2009, and I include in that the heavily deferred Wright contract, which won’t really hit the books until after they figure out how to deal with the balloon debt payments on Citi Field and SNY in 2014 and 2015, respectively. Add in to that the Naimoli-esque front office culture and their consistent meddling in major and minor league operations, and I could argue they are as detrimental if not more than Loria. Having such a problematic a team in the top media market in the country is a black eye on the “best interests of baseball”.

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        • Beasy Bee says:

          The [United States]’ infatuation with debt as a financial tool is detrimental to their ability to successfully run the [world].

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      • wally says:

        How many people even know an anti-trust lawsuit is going on between the A’s and MLB right now?

        Fall out from that could be very far reaching. But Selig seems to want to stick his head in the sand over that, yet chase any piece of paper with player name and the word “steroids” on it…. priorities man…

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    • rccb says:

      This is my initial impression, too. MLB can’t rely on the general CBA discretionary penalty in PED cases because PED cases are expressly dealt with elsewhere in the CBA. Trying to circumvent the JDA seems to be a pretty clear violation of the CBA, and the players would have recourse to appeal by grievance to the Labor Board. On its face, this is a pretty terrible strategy; MLB has a much greater chance of success in JDA arbitration.

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  9. Reddickulous says:

    Suspend them and make them mop up the sewage in the Oakland Coliseum.

    Two birds with one stone, Selig, you evil geriatric genius.

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  10. Hurtlockertwo says:

    Let’s see, Braun makes $8.5 Million, ARod $28 million, that a total of about 422 miilion they stand to lose that can go to lawyers to defend them. Yeah lawyers!!!

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  11. Cidron says:

    A-rod, etc aren’t protected by the Fifth Amendment in some way? Self Incrimination? If they stay quiet, they still get punished for impeding an investigation? Granted, this is applicable to US citizens, or does it extend to ’employees’ of US companies/entities (such as mlb teams)?

    Also, could the appeals (to Selig) process take the same route that the New Orleans NFL players took when they got suspended and had no recourse but to their commish. They managed to get ‘an alternative’ to review and judge, based on a bias issue that was perceived to be in the commish, meaning he could not act impartially.

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    • a5ehren says:

      The Constitution only applies to your rights when dealing with the Federal and/or State governments. Besides empowering Congress to pass laws relating to interstate commerce, it does not grant you any rights when dealing with private entities.

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    • Mike says:

      The 5th amendment protection would only work in court testimony, so that is not really applicable to employer investigations.

      It’s an interesting point about the NFL process, though. The nuclear option seems quite similar to the Jonathan Vilma situation that blew up for the NFL.

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    • KM says:

      The fifth amendment also only applies to criminal charges, as I understand it…

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  12. lexomatic says:

    Here is an argument fire the sake of it. 8 may or may not believe it. By constantly bringing PED issues b when many fans don’t care, MLB is the one undermining the integrity of the game and public confidence.

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  13. Matt says:

    I’m wondering, is there any civil recourse Braun et al can take against Selig/MLB? I understand the punishment is collectively bargained, but it seems so much of this is not being done in good faith and is aggressively prejudicial. Would it be possible to sue MLB or Selig because of this?

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    • a5ehren says:

      They can sue, but that doesn’t mean it won’t get immediately thrown out. SCOTUS has recently upheld multiple cases that say that contracts like the CBA can force you into binding arbitration.

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      • Matt says:

        Could there be a legal challenge that MLB has violated the spirit of the agreement in how they’ve conducted and made public their investigation? If I’m reading it correctly, the Joint Drug Agreement says that all of this must be done confidentially. If MLB has violated portions of the CBA in enforcing other portions of the CBA, does that become grounds for the courts to be involved? I have absolutely zero legal knowledge but I am quite interested in this, so I appreciate the added insight!

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      • Tim A says:

        They almost always say FAIR and binding. I believe an impartial arbitrator would be grounds for a re-trial, or however they handle that.

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    • Mike says:

      I think there is a better chance he would sue Biogenesis for breach of confidentiality, violations of HIPPA, etc. Perhaps MLB could be pulled into some of the HIPPA charges, but I do not know enough about it.

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      • AndyRTR says:

        Can’t see a HIPPA violation if they aren’t an entity bound by HIPPA regulations as it respects Mr. Braun. Health care providers certainly are, but I’m not sure MLB would fall into that provision. Also, almost any suit by players/employees concerning actions under a Collective Bargaining Agreement will get tossed immediately. They have to pursue their case:
        1) Through the scheme written into the CBA; then
        2) Through the NLRB IF they feel there has been some sort of unfair practice or action not covered by the CBA.
        Only after exhausting administrative remedies can they go to the Courts. This is why the players’ unions in other sports often threaten to de-certify, this gives them leverage to immediately file suit and not have to go through the administrative remedies. Not really an option in baseball due to the Congressional pass that MLB has received.

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      • Hank says:

        Boesch isn’t even licensed as a doctor.

        Pretty sure HIPPA/confidentialiy claims wouldn’t apply here.

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  14. Danny says:

    I took a break from my bar studies to read this. Great piece. Ima ace the MLB CBA questions that are sure to appear on the exam.

    Stepping back, seems like the players’ association really goofed when they allowed such ambiguous language into the contract. The only incentive for Selig to decline your aptly named nuclear option is to avoid the greater harm that he would to do the sport. Yup, total mess.

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  15. Radivel says:

    Change “bests interests of baseball” to “bests interests of the nation”. National leaders have been doing that for as long as there have been nations, and the end result hasn’t ever been good or fair, so why would baseball end up any different?
    No, I don’t want cheaters to get away with it scott free, but there has to be a better process.

    On the flipside, screw getting out of being punished because of lame technicalities.

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  16. Dustin says:

    I don’t really care about PED’s but I won’t shed any tears about Braun getting suspended. He’s obviously a cheater and deserves whatever he gets.

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  17. Stephen says:

    Does Jenkins really set precedence here? He was arrested in Canada, is Canadian, and the Anti-trust exemption doesn’t exist here, so could he have taken MLB to court?

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  18. BX says:

    Let’s ignore the fact that Wendy Thurm is, you know, an ACTUAL LAWYER with a JD,

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    • BX says:

      and proceed to insult her based on gender.

      (Oops, this was directed at the post calling Thurm a “sweetheart” upthread)

      Side note, as a non-lawyer, this was a very informative post.

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  19. Newsies says:

    Mr. Selig has to respect the rights of the working boys of the MLB!

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  20. Adam says:

    If I were running the Players Union, I’d be quietly and privately telling MLB that an attempt to do an end run around the carefully-negotiated CBA provisions by invoking the best interests of baseball would reluctantly cause the Union to finance a legal challenge to the anti-trust exemption. In this case, one nuclear threat merits another counter-threat.

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    • Sam says:

      That game brinkmanship will likely lead to a long drawn out work stoppage. The union is much better off negotiating it out of the next CBA.

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      • Matt says:

        Not that they would ever have the stones to do it, but would challenging the anti-trust exemption be in the best interests of the Players in the long run (excluding the cost of a work stoppage)? Also, could the league have any ground to engage in a work stoppage over an anti-trust suit while the current CBA is still active? If negotiating the provision out would cause a work stoppage when the CBA is up, why not go for the jugular now and not have anything to negotiate?

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        • LK says:

          It seems to me the antitrust exemption benefits the owners far more than the players. The players wouldn’t really be harmed by a competing league; if anything they might be helped by more competition for their services.

          Where the players could potentially be hurt is if it eventually led to fewer overall teams, reducing the number of available jobs.

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        • Josh says:

          It might be difficult for the union to successful challenge the anti-trust exception. Players have been hoping to use anti-trust laws against MLB since the days of the Federal League (the 1910s).

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  21. KS says:

    Shouldn’t there have to be some connection between JDP violations and the “Best Interest” violations? If the players win appeals on JDP suspensions, could they still be suspended for lying about something they officially didn’t do?

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    • KS says:

      Or could Selig enact and enforce the “Best Violation” suspensions before the results of the other appeals process plays out, therefore guaranteeing at least 50 game suspensions?

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  22. Richie says:

    I don’t understand the second-last paragraph at all. If the investigation is a “legal mess”, then Braun/ARod/et.al. will appeal to the broader legal system and win. If pressuring/bribing one set of miscreants to turn on another is an “ethical mess”, then I suggest we shut down the FBI, the ATF, and the police departments/prosecutor offices in every American town of over 10,000 people for moral malfeasance.

    The info is great. The conclusion you derive from that info is rather astounding.

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    • Richie says:

      Oh, and I think this is my new best example of you SABRery types being ‘dovish’ on PEDs. How DARE! Selig totally legally play hardball in order to determine if public press reports of players using now-banned substances are actually true. The ethical nerve of that guy.

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      • Bob M says:

        There are a number of players on that list (Cabrera, Colon, etc.) who have all ready been investigated by MLB and served their time. Why drag them thru this all over again, to punish them a second time for the same thing?

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      • Jason B says:

        So trying to determine the legal and/or collectively bargained grounds on which Selig may attempt to act, and whether it may be a successful strategy = dovish on PEDs. Got it. Thanks for that.

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        • Richie says:

          Hawkish take: Hey, it looks like MLB is successfully getting to the bottom of the Biogenesis thing! Good for them.

          Dovish take: How unethical to pressure/cajole the Biogenesis executives to turn on the players they were helping to cheat.

          Really, did anyone think for a second a writer on this site would take the first perspective? Heck, I was naïve to think it might be a purely informational article without any dovish moralizing.

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    • Richie says:

      Gee, I wonder if I’ll break my personal ‘-‘ record on this one?

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    • LK says:

      Do you really see no distinction between a law enforcement body taking these actions and a private employer taking them? If not, I can understand why you’d dismiss the “ethical mess” aspect, but I think you’d be in a very small minority.

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    • Crap Shoot says:

      MLB is not a criminal investigative agency. This is quite the false equivalence you are conjuring up here. MLB investigators are not engaging in morally dubious behavior to help put away violent criminals or keep the streets safe from danger. They’re paying off drug dealers and filing bogus tort suits to try and uphold suspensions for their employees. The moral calculus for “do the ends justify the means” is decidedly different.

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      • LK says:

        A much better statement of the issue I was trying to raise above. The author appears more interested in baselessly claiming he’s going to get scores of minus votes from biased readers than actually engaging in discussion though.

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  23. Brian says:

    Bud’s on Letterman Monday night.

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  24. Bob M says:

    I wish MLB would just give up the “investigation” and suspend whichever players they want, so we can start the appeals process. Dragging this whole situation out is more detrimental to baseball than anything Tony Bosch did or didn’t do.

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  25. Sparkles Peterson says:

    Let’s save the indignation for when Selig actually attempts any of this. Have we seriously not figured out that the sports media is nothing but an outlet for public relations for teams, players, and leagues? To placate the people who want MLB to go Dirty Harry on their latest PED scandal, they’re leaking a story that that’s exactly what they intend to do. In the end, they’re going to “reluctantly” settle on the penalties agreed upon in the Joint Drug Policy.

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  26. interested party says:

    Great article. What I want know is why would the players association sign a CBA that grants such absolute power to the commissioner. Is language such as this, the “nuclear option,” typical in CBA’s? Genuinely curious.

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  27. ArmSideRun says:

    Selig: “sign here admitting your own guilt, or don’t and I’ll double your penalty”

    I think MLB’s on-field product has been very entertaining under Selig. Almost every team has a “must see” player and competition is strong. That being said, Selig just seems to fit the profile of an aging leader who is insecure about his legacy. Has anyone seen interviews with him? Of the 10 or so interviews I’ve seen Selig do over the past 5 or 6 years, every question asked of him, whether about the weather or his last vacation, gets twisted into a speech about how “ryan howard and ryan braun have been tested since being drafted…” (More than anything, he’s probably just pissed he needs a new canned phrase).

    Selig’s goals are laudable, but his motives and methods are questionable. He seems destined to become a caricature of himself and wear out his welcome. I won’t defend the players’ actions, but people, millionaires or not, shouldn’t be suspended from their livelihoods without substantive proof. Certainly, their only recourse shouldn’t be an appeal to the individual spearheading the investigation who seems keen on seeing you punished.

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  28. Richie says:

    I’ve determined that insulting Bud Selig is the ‘T and A’ of this site. Well, won’t bother Bud none, so if it then helps pay the bills …

    -5 Vote -1 Vote +1

  29. Dave says:

    As much is unknown about this and what is to come, and it is interesting to think about different scenarios and options available to the league and players, this is a scenario I would find very hard to imagine. Obviously such a suspension would be challenged in court, and how could subverting a very clear agreement the players and league have negotiatied and agreed to on the subject by using an alternate method to punish the players stand up? Even if it could, a suspension for refusing to answer question(s) regarding a league investigtion couldn’t be nearly as long as the 50 games for being suspended under the JDA, could it (otherwise it would clearly be intended to punish the player for allged PED use that couldn’t be enforced under the agreed to JDA rather than for a lack of cooperation with the investigation)?

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  30. mojito says:

    @Wendy Thurm:

    Lawyer here as well, though European. I find it hard to believe that mere silence or refusal to comment on questions or even denying accusations can lead to a more severe punishment. Is there no basic principle like nemo tenetur in American common law?

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    • Hunter says:

      To put it simply, you have a right to remain silent, yes. An employer also has a right to terminate/put limits on your employment.

      You don’t want to tell the truth when your employer asks you a question? No problem. You’re fired.

      In many states, an employer can essentially fire you at any time for any reason, unless your employment was collectively bargained, I.e. you’re a member of a union; or if you are a member of a legally protected class, and can prove your firing was directly related to you being a member of that class, e.g. You can prove you were fired because you were black.

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      • Dave says:

        “…unless your employment was collectively bargained…”

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        • Hunter says:

          Right. It seemed to me like Mojito was asking a question in general, not about this specific situation. Perhaps I misunderstood.

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  31. Dave says:

    And sure courts will hold you to negotiated CBAs, but that’s kind of the point. The JDA is carefully negotiated and detailed. You can’t just say yeah well we have the best interests of baseball provision that is agreed to and thus we can do whatever we want regardless of any other agreed to provisions and it can only be appealed to the commissioner so the court has to throw it out. And if they did suspend for failing to cooperate (which I don’t think they could do, but who knows the nature of what their failure to cooperate has been) rather than for PED use, the punishment would probably have to be a lot different than for PED use (i.e. a shorter suspension) to get away with it.

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  32. Hunter says:

    Thanks for the timely update Wendy.

    All I know now is that there is a fascinating train wreck in progress here. I am honestly eager to see the next twists and turns this takes.

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  33. Loop D says:

    Why are things like Synvisc/Orthovisc or some Glucocorticoids family cortisone type steroids permissible both legally and morally in MLB. Shouldn’t Randy Johnson’s career also have an asterisk? How do we draw that line? Where is the line? How does baseball differentiate medical advancements from “cheating”?

    Isn’t increasing longevity also cheating? You sure make some extra pocket change out of it.

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    • JamesDaBear says:

      Before they drew a line, you could make this argument. Many have before you. But MLB has now drawn the line, and Biogenesis is way over it.

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      • LK says:

        Well, I think the issue he’s bringing up is different than the one you’re addressing.

        Johnson and Bonds (for instance, and let’s just take pre-2003 when the drug testing was implemented) both competed before said line was drawn. It seems wrong to disparage Bonds because his behavior crossed a line that had not yet been drawn, while not taking issue with Johnson, whose behavior also could have crossed that future line, but happened not to.

        I also think he’s brining up the deeper question, namely: yes a line has been drawn, but *why* has it been drawn where it has?

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        • JamesDaBear says:

          Bonds was never punished by MLB for whatever he took, whenever he took it. There were plenty of players who tested positive that were never punished because it was before they established their current system.

          I can’t tell you why some are allowed and some are not. I’m not a doctor or pharmacologist. I’m certainly not MLB’s adviser in what should be allowed. Those are really the only people who can answer questions that he and you are asking.

          The fact that it takes potential fines, suspensions and subpoenas to get them to talk about what they’re putting in their bodies tells me everything I need to know. If they thought it was legitimate, they’d find a way to charge some company millions of dollars to endorse it. They’d find a way to get it on MLB’s allowed list instead of just using it in the shadows.

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  34. 65Kyle08 says:

    Great article Wendy!
    Who cares what sexist pigs think anyway

    +6 Vote -1 Vote +1

    • Brad says:

      Of course, by calling others sexist pigs, you do realize that you become the very thing you seem to detest, right?

      There is a fine line between disagreement and being a hypocrite that is just a cog in endless cycles of exclusion/violence.

      In terms of the original article, thanks Wendy, enjoyed the read and the helpful clarifications.

      -17 Vote -1 Vote +1

      • bpdelia says:

        Wait. What? So if I call a a white power gang member a racist…. then I also am a racist?

        I think you poorly worded a point you were attempting to make about civility and/or politeness. Or……”you keep using that word…. I don’t think it means what you think it means.”

        Also, and perhaps most importantly, that guy was certainly a sexist ass.

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      • Steve says:

        There’s no victory here

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        • Brad says:

          *grins* My apologies. I had forgotten that by calling people names we ensure they act better instead of just ignoring them which is far more effective and still shows them the respect due anyone whether we dislike them or not. But. I digress….

          *rolls eyes*

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  35. Pete Rose says:

    “And all I did was place a bet.”

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  36. wjylaw says:

    I seem to remember Braun and his attorneys trying to explain away Braun’s name and a dollar amount being in the Biogenesis documents as being due to Braun hiring Biogenesis or it’s founder Anthony Bosch as some kind of expert. If Braun testified in the appeal or submitted some kind of documentation claiming Bosch was an expert and Bosch gives up his real role, Braun is looking at the “best interest” kind of suspension.

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    • bpdelia says:

      Or, and I take no position on the innocence or lack there of involved here, Braun is telling the truth and the “evidence” against him is bullshit bought with leverage and actual money from a sleazeball who was drowning fast and grabbed the first life preserver thrown his way.

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      • Yawn says:

        Exactly. I see all of these people assuming guilt, when the only evidence they have is from a slimeball who wants everyone to point the finger of blame at someone else.

        There’s a player’s union for a reason. The commish is definitely on a witch hunt, and this will very likely not end well for the league, no matter what the outcome. Either:
        1. The league makes an ass out of itself for wasting all our time
        OR
        2. A large percent of the fans become disillusioned with the sport (again) and the league loses a ton of money.

        Sad to watch the house of cards, I tell you.

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        • JamesDaBear says:

          Given the latter, MLB would have to be pretty sure of the veracity of the claims. The mistake you’re making is assuming the steroid scandal era had ended, including the repercussions. We’re far from done. Quite a few HOF ballots away from being done.

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  37. Matt says:

    Zero tolerance. This is not the NFL.

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  38. NATS Fan says:

    I think Braun and Arod should just take the suspensions immediately. Neither players team is likely to play in the playoffs with or without them. It is beyond reason that either player is not guilty, so just get the thing over with.

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  39. pumpkino says:

    Hats off to my friend OGC. People take the caffeine argument as relativistic, but what shall we call Tommy John surgery? This is not a “natural” thing.

    In any case, to keep with the actual subject of the column; my personal opinion is this is Selig trying to establish precedent of authority over the player’s union. Purely a management/labor issue. IF MLB has recourse in the tainted-sample Braun case, and IF the Yankees can void A-Rod’s bad contract (it’s not terribly hard to see why they’re the two always being mentioned) – then the CBA/Union/Players have been dramatically weakened.

    Selig sees an opening but he has no chance of legally prevailing. It has nothing to do with steroids. That’s just the peg provided to hang public opinion’s hat on. @Yawn is correct. This is tremendously self-destructive of MLB.

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  40. Kevin says:

    I’m not surprised that Selig and the MLB lawyers actually provisioned a double secret probation in which the commissioner can suspend players whom he deems detrimental to the game. I just can’t believe MLBPA would agree to such a provision. In a country with more lawyers than doctors I doubt this detail was overlooked. They just thought it would never come to this.

    Either way, if and when the drug policy set forth by the CBA proved ineffectual Selig is well within his rights to hold his “witch hunt” and make examples of whomever he chooses. Why would the players ever agree to this???

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  41. Randy says:

    Alex Rodriguez “cheated” before there were rules against it so it doesn’t count. The “law” is blind to it. It doesn’t change the fact that he’s a ****, but that’s how it goes. A lot of people cheated before that and we didn’t know and it was legal so it doesn’t matter to us, but the reality is that it is baseball’s fault this all happened in the first place. They let this go on for years and even provided an incentive for players to juice, and now that they’ve allowed the culture to flourish they are going to put on this show about trying to clean up the game, and its just a big PR shitshow. Selig doesn’t really care about integrity, he likely just cares about his legacy.

    Braun probably cheated, but he appealed successfully so it doesn’t count; its not a positive test so it isn’t a violation. He can’t be punished for a second violation since there was no first violation, and he can’t be punished twice for the same violation, especially when that violation didn’t even happen in the first place. Do we even know that his appealed positive test and him appearing on this list are not the same instance?

    The language giving Selig such unilateral authority is ridiculous. I am confident MLB will end up getting sued. This should be a slam dunk for them and they’ve messed it up and lost credibility.

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  42. pft says:

    Bud has to take into account damage to players relations that could bite him and/or the owners in the next CBA.

    The Ferguson case is not a great example since his violation of Federal law was a matter of public record. The fact an arbitrator was used suggests even Kuhn was smart enough not to offend the union by acting like Stalin or Mao.

    In this case, the only evidence is from people who are in it for profit or under duress. Such evidence is not deemed credible in most courts in the absence of credible evidence. The records could have been altered or even manufactured for this purpose.

    The most compelling evidence for the players innocence is their test results under the JDA, and Uncle Buds testing says pretty much everyone is clean with a couple of exceptions (eg Melky, Braun-got off on technicality). Arods only positive test came in 2003, same as Papi, so there is nothing to link him to steroids the past 10 years.

    While there is no question Bud would like to suspend Arod 100 games and save the Yankees some money, he would not want to suspend revenue generators who produce more than they receive in salary. This is why any testing program administered by MLB and the players is a joke, hand it entirely over to a 3rd party and eliminate the conflict of interest.

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  43. pft says:

    One more thing. If the leaks are a violation of the JDA, could the MLBA claim breach of contract and refuse to cooperate with the JDA (players refuse testing) until a new agreement is hammered out.

    MLB would then have 2 options.

    1. Take it to court and suspend the testing.

    2. Take it to court and lockout players until it is settled.

    Neither one is very attractive. My money is on Uncle Bud backing down if Weiner has any testosterone in his blood

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    • Hank says:

      You do realize the names were “leaked” by a press investigation into Biogenesis, not MLB. What leaks are you referring to?

      And even if MLB had released the names, I still don’t even think it is a leak… they are forbidden to leak the identity of a player who failed a drug test until the appeals process is completed. This case has nothing to do with the results of a failed drug test(s).

      Your whole hypothetical doesn’t seem to make much sense.

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      • pft says:

        The leaks that suspensions to Arod and Braun are imminent. As Scott Boras said, very few people are in the loop on this and it had to come from MLB insiders. This is a violation of the CBA, at least that’s his interpretation.

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  44. Professor Murder says:

    For a commissioner who seems keenly aware of baseball’s history and his place within it, this seems like an absolutely terrible move. I, frankly, think baseball fans are just done with the whole steroid thing (and I may be totally off-base). I understand MLB felt it had egg on its face after Braun avoided suspension, but I don’t think his appeal necessarily gave players a blueprint for how to beat drug tests. Rather, it was a one-off set of circumstances that likely never will be repeated.

    To launch an investigation and take up to 20 other players down with Braun and A-Rod seems patently absurd. And if it’s done without anything resembling due process, I think it will really tarnish Selig’s already mixed legacy. Rather than making him seem like a “defender of the game,” it will make him seem like a vindictive, power-hungry douche bag.

    So Braun beat the system — that’s a consequence of having due process. I’d rather have one (allegedly) guilty person go free once in a blue moon rather than have unchecked authority in the hands of one person.

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  45. Steve says:

    Is Vegas taking bets on this?

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  46. Bip says:

    When I read “just cause” clause, I assumed it meant this:

    Me: Bud, why are you suspending Alex Rodriguez and Ryan Braun?
    Bug Selig: “Just cause I can.”

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