Major League Baseball suspended 13 players today for violations of the Joint Drug Agreement based on evidence collected in its investigation of Biogenesis, the now-shuttered “anti-aging” clinic run by Anthony Bosch.
Jhonny Peralta (Tigers), Nelson Cruz (Rangers), Everth Cabrera (Padres), Francisco Cervilli (Yankees), Jesus Montero (Mariners), Antonio Bastardo (Phillies), Jordany Valdespin (Mets) and Sergio Escalona (Astros) were suspended for 50 games and agreed to forgo the appeal process, and will begin serving their suspensions immediately. Minor-league players Fernando Martinez (Astros), Jordan Norberto (free agent, formerly with the A’s), Fautino de los Santos (Padres) and Cesar Puello (Mets) also agreed to 50 game suspensions. All but Norberto will begin their suspensions immediately. Norberto’s suspension will become effective when and if he signs a contract with another team. This is a first JDA violation for each of these players.
The suspensions of Bastardo, Valdespin, and Escalona came as a big surprise, as there had been no previous reports linking those players to Biogenesis or performance enhancing drugs.
Melky Cabrera (Blue Jays), Bartolo Colon (A’s), and Yasmani Grandal (Padres) were not suspended for a second violation. All three players tested positive last season and served a 50-game suspension. They were said to be connected to Biogenesis.
MLB took the most drastic action against Alex Rodriguez. The league suspended Rodriguez for the remainder of the 2013 season (49 games) and all of the 2014 season, for a total of 211 games. The suspension will be effective as of Thursday, August 8.
In announcing Rodriguez’s suspension, Commissioner Bud Selig invoked the Joint Drug Agreement and the Collective Bargaining Agreement. The full statement from MLB reads:
Commissioner Allan H. (Bud) Selig announced today that third baseman Alex Rodriguez of the New York Yankees has been suspended without pay for the remainder of the 2013 Championship Season and Postseason and the entire 2014 Championship Season for violations of the Joint Drug Prevention and Treatment Program and the Basic Agreement.
Rodriguez’s discipline under the Joint Drug Prevention and Treatment Program is based on his use and possession of numerous forms of prohibited performance-enhancing substances, including Testosterone and human Growth Hormone, over the course of multiple years. Rodriguez’s discipline under the Basic Agreement is for attempting to cover-up his violations of the Program by engaging in a course of conduct intended to obstruct and frustrate the Office of the Commissioner’s investigation. The suspension, which will become effective on Thursday, August 8th, will cover 211 Championship Season games and any 2013 Postseason games in which Rodriguez otherwise would have been eligible to play.
Under the terms of the Joint Drug Prevention and Treatment Program, Rodriguez’s suspension will be stayed until the completion of his appeal if Rodriguez files a grievance challenging his discipline.
Yankees manager Joe Girardi indicated Sunday that Rodriguez would be in the lineup when the Yankees take on the White Sox in Chicago on Monday night.
In the weeks leading up to MLB’s suspension of Rodriguez, there were reports that 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. In fact, the threat was hollow, because Selig had previously promised the Major League Baseball Players’ Association that he would not invoke Section A(1)(b) while the current CBA was in effect. Attachment 1 to the CBA is a letter from Selig to MLBPA Executive Director Michael Weiner that states:
I understand that the Players Association has expressed concern that the Commissioner might take some action pursuant to Article XI(A)(1)(b) of the Basic Agreement which could negate rights of Players under the new Basic Agreement. While I have difficulty seeing that this is a real problem, I am quite willing to assure the Association that the Commissioner will take no such action.
After threatening the nuclear option proved unproductive, Selig was 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 is permitting Rodriguez to play while his appeal is pending. In doing so, Selig gave Rodriguez something he wanted – to get back on the field – but gave himself something more important – the breadth of the “best interests of baseball” clause.
A 211-game suspension based solely on the JDA might have been difficult for Selig to defend before the arbitrator. 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, the MLBPA executive director, hinted at this possibility during an All-Star break press conference. Weiner was quoted as saying that suspensions for “non-analytical positives” under the JDA were not limited to the 50-100-lifetime regime, despite the plain language of the agreement. Some have suggested 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.
Reports Sunday night suggested that Selig would suspend Rodriguez for 211 games, in part, because Rodriguez allegedly interfered with the league’s Biogenesis investigation. Previous articles reported that Rodriguez tried to purchase Biogenesis-related documents with the intent to destroy them. It’s not otherwise known what evidence MLB has of Rodriguez’s effort to obstruct the investigation.
It’s not at all clear that the Joint Drug Agreement authorized the Commissioner to suspend a player for 211 games based on evidence the player purchased PEDs and that he tried to impede the investigation into his use.
We’ve already addressed section 7.A. Sections 7.F. and 7.G. may also have come into play.
Section 7.F. is entitled “Participation in the Sale or Distribution of a Prohibited Substance”. That section states:
A player who participates in the sale or distribution of a Prohibited Substance shall be subject to the following discipline:
1. First offense: At least an 80-game but not more than a 100-game suspension, if the Prohibited Substance is a Performance Enhancing Substance, or at least a 60-game but not than a 90-game suspension, if the Prohibited Substance is a Stimulant or a Drug of Abuse.
2. Second offense involving a Performance Enhancing Substance: Permanent suspension from Major League and Minor League Baseball . . . .
Just as with the terms “use” and “possession,” the JDA doesn’t define the term “sale.” It’s unclear if Section 7.F. is intended to apply only when a player himself sells a PED to another player, or is broad enough to encompass a player’s purchase of PEDs. If MLB is relying on this provision, we can expect Rodriguez’s attorneys — and perhaps the union — to argue vigorously on appeal that a player’s purchase for his own use shouldn’t trigger this section. After all, most players who “use” or “possess” PEDs purchased them in the first place.
Section 7.G. leads to even murkier waters. 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).
Again, notice the absence of the word “purchase” in that sentence. Under the language of the agreement, players can be punished for using, possessing, selling, or distributing a banned substance, but not for purchasing one.
There’s also 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.
So Selig used the JDA and the CBA, but we don’t know how he reached 211 games. Was it 100 games for a first and second violation for “use or possession” under the JDA plus 114 games for prejudicing “the best interests of baseball”? Was it 50 games for a first time violation for “use or possession” plus 100 games for a first violation for participating in the sale and distribution of PEDs, plus 64 games for prejudicing “the best interests of baseball”?
In the end, it appears that Selig decided to suspend Rodriguez for the remainder of this season and all of next season because he liked the optics and with the hope that the arbitrator will uphold the punishment in full, or trim it down only slightly, on Rodriguez’s appeal. But unlike league officials, arbitrators must confine their decisions to the language of the agreements. If the language is ambiguous, the arbitrator can hear testimony on the negotiations leading to the agreements to try to flesh out the parties’ intent.
Rodriguez’s appeal is expected to be heard by the arbitrator in the next few weeks. MLB will bear the burden to prove by a preponderance of the evidence (more likely than not) Rodriguez violated one or more provisions of the JDA and CBA and that the suspension was justified under those agreements. In addition to challenging the length of the suspension, Rodriguez is sure to challenge MLB’s evidence, much of which is tied to Anthony Bosch and the original whistleblower, Porter Fischer. Rodriguez’s attorneys will undoubtedly attack the credibility and motive of these witnesses, as well the authenticity and reliable of any Biogenesis-related documents they turned over to the league.
Rodriguez’s appeal will be conducted in a private hearing before the arbitrator. MLB must turn over to Rodriguez and his attorneys all of the evidence it’s relying on to support the suspension. But there is no obligation that either MLB or Rodriguez make that evidence public. Indeed, a suspension under the JDA and any ensuing appeal are supposed to be confidential. Perhaps no provision of the JDA has been violated more times and with such vigor than the confidentiality clause. So we can expect many more “leaks” as the matter moves from the Commissioner’s suite to the arbitrator’s office in the coming weeks.
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