MLBPA Chief Michael Weiner With Potential Game Changer On Biogenesis

Major League Baseball Players’ Association chief Michael Weiner held his annual All-Star Game press conference this morning. That is news in and of itself, in light of Weiner’s battle with brain cancer that has now sidelined him to a wheelchair. But even in his weakening condition, Weiner made news on the Biogenesis front.

I followed up and Bill Shakin replied.

Why is this big news? Because the plain language of the Joint Drug Policy says that a player who violates the policy by use or possession of a performance enhancing substance is subject to the same discipline as a player who tests positive. As I explained in the post MLB and Biogenesis: A Primer, Section 7.A of the Joint Drug Policy 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.

Weiner, with Bill Shakin’s clarification, appeared to say that if the Biogenesis investigation turns up evidence of a player’s use or possession, the league would proceed under the “just cause” provisions of the Joint Drug Policy and the Collective Bargaining Agreement. I explained those provisions, as well, in the Primer post and further in last week’s post entitled “Is Selig Preparing To Use The Nuclear Option?” Essentially, the just cause provisions give the commissioner the power to discipline a player if he acts against the best interests of baseball.

But that sort of provision wouldn’t typically come into play when there is a more specific discipline scheme that already covers a particular kind of conduct. One possibility is that Weiner and the union believes that Section 7.A. does’t apply when a violation can be proved only by circumstantial evidence. That is, if the league develops evidence of a player’s use of PES only through Biogenesis notes and the testimony of Tony Bosch, then that isn’t sufficient to trigger the 50-100-lifetime penalties. The Joint Drug Policy doesn’t even hint at that, but it could be an understanding between the union and the league that arose during negotiations of the agreements.

If Biogenesis-related suspensions for use or possession of a PES don’t start at 50 games, where do they start?

Further tweets from the national baseball writers reported Weiner to say that the suspension lengths were negotiable.

That’s good news for a player who’s never tested positive for PES but whose name shows up on some Biogenesis documents. Maybe he only gets a five or ten game suspension because there’s only circumstantial evidence. But it could be bad news for others, like Alex Rodriguez, who are reported to have had a long-standing relationship with Tony Bosch and Biogenesis. If the league develops evidence of pervasive use or possession by A-Rod, it could seek much harsher penalties, even if they fall short of a lifetime ban.

In any appeal from a suspension, MLB will have the burden to prove by a preponderance of the evidence that the player violated the Joint Drug Policy and that the punishment is just and reasonable.




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Wendy is also a contributing writer for Sports on Earth. Her writing has appeared on ESPN.com, Baseball Nation, Bay Area Sports Guy, The Score, 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.


63 Responses to “MLBPA Chief Michael Weiner With Potential Game Changer On Biogenesis”

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  1. Steve says:

    bad news* towards the bottom. Sorry, I have to for future readers… it irks me.

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    • Kevin says:

      No, you most certainly did not *have* to.

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      • Jaack says:

        He could be feeding orphans with the wages he gets from the Grammar and Spelling 3rd Reich.

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        • Scraps says:

          Yeah, and “who’s” substituted for “whose” also. Uh-huh. For future readers.

          Look. FanGraphs is free. There is no reason to comment with simple text corrections. Go down and open the “Contact Us” window. If they ignore the correction, fine; if you are irked, leave.

          To comment like that is not for future readers. It’s for you.

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        • Synovia says:

          “Look. FanGraphs is free.”

          Any webpage that is serving adds and putting cookies on my machine is not free.

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    • Well-Beered Englishman says:

      Hey, are you the Steve who keeps showing up late to Corey Kluber Society meetings? Are you ever going to remember the doughnuts?

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      • ettin says:

        You should have spelled it “donuts” just to irk him.

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      • Uncle Sam says:

        Donuts. Donuts. This is America. It’s donuts.

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        • Well-Beered Englishman says:

          If the Americans had invented English, it wouldn’t be called English!

          +12 Vote -1 Vote +1

      • Mike Green says:

        Incidentally, why are they called doughnuts? I get the dough part, but what about the “nuts”? They don’t look like a Planters product or like testicles. They’re not hexagonal or octagonal like a nut that fits a bolt.

        Here in Canada, we have doughnuts and Timbits. Strangely, Timbits do resemble testicles…

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        • Homer Price says:

          They are 0s (which Brits call ‘naughts’ or ‘noughts’) made out of dough. Doughnaughts>doughnuts>donuts>yum.

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        • pitnick says:

          That’s a cute explanation, but I find no evidence for it…

          They were originally described as “balls of sweetened dough, fried in hog’s fat.” The holes came later. As small brownish balls, they probably looked vaguely nut-like.

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        • shadow8pro says:

          Nuts, as in nuts and bolts.

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        • Jason B says:

          It was obviously from the response given to the question–

          “Pardon me kind sir, do you have any fried dough?”

          (Shakes head no)

          “NUTS!”

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        • Jason B says:

          Of course that was a simpler, less profane time. Nowadays instead of “Nuts!” we would say, “Sh!T!!” So instead of Dough?Nuts! or doughnuts, they would now be called doughsh!t.

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  2. KillahYeast says:

    Where does Braun fit in the 5-500 scale. More than a dozen, less than 101?

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    • Jason says:

      100. Repeat user who scammed his way out of a previous 50 games, can’t see any reason for it to be less than 100.

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      • Al Dimond says:

        I guess that sort of depends whether there’s a concept of double-jeopardy similar to the criminal court system. I’m sure Braun’s people will argue there is.

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        • Steve Holt says:

          The problem is that Braun has pretty decent evidence against him (probably) that he committed the same offense twice. If you murder someone, and get off at trial on a technicality, then murder someone else, the sentencing judge would likely take a pretty dim view of it. I wouldn’t mind betting that (i) Braun was busted using a short acting testosterone creme that (ii) he got from Bosch in the first place, and continued to get it from him to start with.

          Plus, Bud ain’t happy with the way the appeal shook down, I am guessing.

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        • Simon says:

          Pretty sure when Braun’s case goes before the arbitrator, he won’t like MLB saying that Braun should be punished extra harshly because they think the other arbitrator screwed up. That’s probably more important in the longer term than what Bud thinks.

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        • Bob M says:

          Steve, those are pretty specific accusations. Why didn’t you share your evidence the first time around?

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      • Matt says:

        According to the official proceedings of MLB, Braun has never failed a test or been subject to punishment. So this would be his first offense. He won his appeal within the system collectively bargained, whether Selig likes it or not.

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  3. d_i says:

    That would entirely change the calculus for the Yankess/ARod and provide some reason for the 150 game rumor recently floated. That would save them ~25 million.

    I wouldn’t be surprised to see this into the league trying to get eveyone to rat on Arod to give him a lifetime ban to bail out the Yankees.

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    • dustin says:

      That would be every team in baseball acting against its own interests. Bailing out the Yankees would (a) make it easier for them to build a competitive team, and (b) enable them to reduce or eliminate their luxury tax payments which in turn reduces revenue for low-revenue teams.

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    • Joe says:

      afaik, the Yankees are still on the hook for their salary commitments if A-rod is suspended. The money just goes to the league rather than the player. This makes sense, because otherwise there would be very real incentive for teams to attempt to suspend their own players with bad contracts.

      They would need to invalidate his contract somehow to save all of the money. A PED suspension explicitly doesn’t allow them to invalidate it, so the length of the suspension is basically irrelevant to the team’s finances.

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  4. Cody says:

    I read “just cause” as “just ’cause” as in “just ’cause Bud said so, that’s why.”

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  5. Wobatus says:

    Last week I was in a cab coming up Park Avenue and a van passed me with a sign in the window that said MLB Shuttle. The windows were opaque. It pulled up at 245 Park right next to another van with a similar sign. Not sure why but I thought it was kinda creepy, like Hugo Weaving was going to pop out with shades on escorting Bud Selig.

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  6. Yankees probably pushing for lifetime ban for ARod in hopes of getting out from under his contract, right? How would that work?

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  7. Mike in EV says:

    Is MLB trying to make the argument that a violation under the ‘just cause’ provision, based on circumstantial evidence and paid witnesses, can result in a longer suspension than a violation due to a failed test?

    It seems to me that MLB will have a hard time making this stick through the arbitration process and beyond.

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    • cs3 says:

      I think the whole point is that under the just cause provision, there is no arbitration process.
      Bud makes a ruling, and thats that.

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      • Mike in EV says:

        If suspensions longer than for a failed test are handed out without a real arbitration process, I could see lawsuits filed by the affected players. It’s one thing to have a loophole, but it’s quite another to take advantage of it in such a fashion.

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      • Balthazar says:

        And the Commissioner can make lifetime bans under ‘just cause.’ There’s no cap, as there is with present actual positive tests. The standard of proof is essentially ‘at the Commissioneer’s pleasure.’ Of course the rep of the Baseball Players’ guild doesn’t think it should go that way . . . .

        Lawsuits to follow, one supposes. What Selig really has to demonstrate is due process, which is why he’s going to take his sweet time, and no suspensions until appeals are concluded &etc.

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  8. Josh M says:

    I still cant fathom why the MLBPA would agree to catchall just cause provision.

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  9. pft says:

    Weiner is obviously too ill or has too cozy a relationship to Bud to represent the players properly and protect their interests. The players need to replace him ASAP before he sells them down the river even more than he has so far. Maybe hire Boras as interim head.

    The sanctity of the guaranteed contract is at risk. It’s obvious Bud is using steroids as a hammer to protect owners from their bad contracts (Yankees), or bad teams saddled with big contracts to no useful end (Brewers).

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    • Hunter says:

      Weiner doesn’t just represent the players about to get busted for Biogenesis. He also represents a contingent of players who know there’s PED use and wants it out of the game.

      I don’t necessarily think Weiner’s default position here should be to defend to the death, and if he isn’t, he is failing the players.

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    • chuckb says:

      Boras would never take that job. It would be a huge paycut, and probably not near as much fun.

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    • Balthazar says:

      Awww Alex, is that you?

      ‘Sanctity of the contract?’ What’s that? If Player A takes Stuff J to get that contract, goes off, and leaves his counter-party in the contract with a beached whale’s performance while walking away with $100M, what’s ‘sanctified’ about THAT?

      Look, the owners are on the whole not-nice folks who would happily stiff players, pay them nickels, and steal those back when they could. That says nothing about other guys cheating their way to millions (or whatever). The owneres used to be only to happy to have those cheats hit their 61 or throw their 98, and would willingly pay for that. Now that they’re losing REAL MONEY to some of these guys, they’e woken up to the fact that they’re getting out-cheated, and out-smarting themselves.

      Pox on both their houses ’bout covers it, but that definitely includes driving a number caught with boxes of stuff under their arms being driven beyond the firelight for a stated period of time. None of this is really serious beyond ‘those on the list’ at present until MLB gets a serious testing program in place rather than the risible pantomine that pretends to testing as at present. The next time the players’ contract is up we’ll see what the owners’ real game is.

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      • LK says:

        “If Player A takes Stuff J to get that contract, goes off, and leaves his counter-party in the contract with a beached whale’s performance while walking away with $100M, what’s ‘sanctified’ about THAT?”

        At the point when all these contracts were signed, the teams had full knowledge that players taking steroids was a possibility, and said teams did not negotiate any contractual language to give themselves relief if that possibility manifested itself. You can disparage the character of the players if you want, but the teams willingly took on this risk, and they shouldn’t be able to get out of it using some contrived loophole after the fact.

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        • Jason B says:

          That is a fair point, but I would generally want to bargain in good faith with someone I’m about to sign for five years or so. Layering in a bunch of outs for drug busts, arrests, and the like may be tough to enforce, tough to get players to sign, and (while perhaps prudent) not unlike having a potential spouse sign a pre-nup.

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        • Synovia says:

          “and said teams did not negotiate any contractual language to give themselves relief if that possibility manifested itself.”

          But they did negotiate that… its the CBA language this article is talking about. Did you read the article?

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  10. Dave says:

    I wouldn’t read too much into it. He’s just acknowledging the possibilities, not saying what will happen or that he’d be ok with it if it did, and we won’t know until the suspensions are handed down. His quote was, “In theory, they could be suspended for 5 games or 500 games. We could then choose to challenge that or not.” He furthermore was quoted as saying that it is important that all of the appeals be heard by the same arbitrator, seemingly indicating that he does not anticipate the commish being able to evade the arbitrator appeal by using his just cause powers (if that is in fact what he meant when he said the length doesnt have to be 50 or 100 games but there isn’t a quote from him on that only the second hand tweet from above. With all due respect I’m not sure why the article relies on second hand tweets when all of Weiner’s actual quotes are readily available.)

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  11. Dave says:

    Another interesting quote of his was that based on the Jenkins rule their determination is that the players cannot be punished for not answering questions, but that the league could feel differently about that.

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  12. Evan says:

    It occurred to me that Weiner might be suggesting that the league has the power to suspend these players for PED-related issues that are comparable in length to the those for analytical positives, but would not trigger the automatic escalators spelled out in the Joint Drug Agreement for subsequent suspensions to these players resulting from analytical positives.

    This might make MLB look quite foolish if one of these players were to fail a test in the future and not be subjected to a longer suspension, though I suppose The commissioner could invoke the just cause provision again. In an event, it wouldn’t be the first time that MLB made a decision that made sense in the short term, but not in the long term.

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    • GoodasGoldy says:

      RE:”it wouldn’t be the first time that MLB made a decision that made sense in the short term, but not in the long term.” That’s how I view the whole PED issue. To me PEDs with minor-to-no side affects are inevitable and are likely on the near horizon. The amount of demand for them from an aging boomer population is too great. The medical benefits to be reaped are just too great. Once safer PEDs are developed how do you not allow baseball players to benefit from them as well?

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      • pft says:

        Legal PED’s are already being used. Toradol, creatinine, cortisone, etc. In Toradols case although it is a legal drug it is being used in a manner outside FDA approved use and in many cases injected by a trainer and not a physician which is also against FDA and MLB rules. Pitchers like Schilling and Papelbon have touted its performance enhancing effects as being significant.

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      • BMarkham says:

        “how do you not allow baseball players to benefit from them as well?”

        Because Baseball, as a sport, is about what people can do naturally. This isn’t the circus. I’m not a baseball traditionalist, I’m cool with the DH coming to the NL eventually and i hate the wild card play-in game but that’s because it’s stupid to base a play-off spot on one game rather than the previous 162. But, just like any other drug, you can’t make it disappear (see: prohibition and War of Drugs) so it’ll probably always be part of the game unfortunately.

        But you make a good point, safe steroids and other things that enhance performance will be great for the elderly.

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        • LK says:

          “Because Baseball, as a sport, is about what people can do naturally.”

          This is the type of statement that has no meaning until you define your terms. What does “naturally” mean? Why is Tommy John surgery natural? Why are cortisone shots natural? Why are contact lenses natural? Why is testosterone not?

          At the end of the day, if you don’t want to restrict players from getting *any* kind of medical advancements, your choices are to (mostly) let them do whatever, or draw a very arbitrary distinction between what they are and are not allowed to do.

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  13. Randy says:

    You guys are morons. I feel dumber for reading these comments.

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  14. maqman says:

    That’s not due to the comments, it’s just natural.

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  15. Dan says:

    Braun didn’t “scam” his way out of a suspension, or get off on a technicality. It was not a valid test. It went to appeal and was ruled invalid. People may still suspect him, but there was no evidence.

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    • JMo37 says:

      No evidence? Granted the whole courier / transport of sample was not handled correctly, but anyone with 3 times the normal level of testosterone did not get that from waking up and eating a side of bacon.

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      • bothstillplaying says:

        JMo37, perhaps you ought to read Will Carroll’s piece on Braun’s appeal hearing before blithering out “No evidence?”

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      • oh Hal says:

        If you want to assume the test was valid, he would have had to inject a huge dose just before or during a game. That’s MLB’s theory. Bud said he used it to “amp up.” It would be debilitating. It tells you how uninformed and isolated Selig is.

        Or you could assume what every chemist above a middle school science teach will tell you – changing the conditions – in this case radically – creates a different test.

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  16. Dave says:

    I’m thinking that use, possession, sale, distribution, etc. may not necessarily be what we are talking about in the case of all of the suspensions. We don’t know yet what evidence MLB has gathered or what each of the suspensions are for, and won’t until it is announced. But for at least some of them it could be for lying to investigators, refusing to answer questions (Weiner was quoted that their determination is that players don’t have to answer but that the league could feel differently), buying records to hide them from MLB (A-rod), otherwise tampering with evidence, or any number of other things that we don’t yet know about (either instead of or in addition to the standard punishment for use, possession, etc.). (I would wonder what could be deserving of additional suspension if Cabrera’s fake web site wasn’t, but he did get the 50 games for the failed drug test so maybe they consider that to be different). And/or it could be that this is a case without precedent that they may not have the fail safe evidence of use, possession, etc. as contemplated for in the JDA, but they have enough evidence of other wrongdoings deserving of a suspension. It was interesting the way Weiner talked about this almost as a negotiation, saying we’ll meet with MLB and “we’ll come up with” suspensions that are fair and appeal those that are not. It’s as if this is a situation without precedence and outside the contemplatation of the use, possession, etc. of the JDA (for at least some of the suspensions, or at least Weiner is acknowledging that possibility) and the union is willing to meet the league in the middle and say you’re not on incontestable footing to suspend these players based on the strict definitions of use, possession, etc. in the JDA but yes some of these suspensions are deserved but let’s make sure they’re fair.

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  17. marcos says:

    I’m wondering if perhaps Weiner is just being cagey. It seems to me that everything is already covered in the JDA – i.e. “this is the JDA and this is what it is for”. So, under the JDA, MLB has to prove 100% that an ARod possessed PEDs, and, all first-time violators would have to have 50 games across the board. Otherwise, maneuvering it to being outside the JDA gives MLB complete discretion as to suspensions, but, opens them up to reasonability questions in a court of law. Which, without real smoking guns of real crime, probably won’t stand, and, like in 1974 may cause a judge to say “you have a JDA, you have to follow that”. No 500 game suspensions.

    So, I am thinking that MLB is in a position of being damned either way in light of what they want. Selig may have handed the union a gift here, in that Biogenis seems awfully sketchy, but will set precedent. Really, then, MLB has once again shot itself in the foot, regardless of what it or the union wants re: PEDs. Even if the union (the players) wish PEDs eradicated entirely, they certainly aren’t going to let MLB have complete and total discretionary power over discipline. That’s equal to breaking the union. Really bad choice of battle to pick by MLB.

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  18. Tigerdog says:

    Weiner’s comments at the ASG were even more telling, when he said that some players will have to cope with suspensions, but they’d try to get most of them off.

    This is pretty obviously a witch hunt, with Braun and A Rod the principal witches. MLBPA could very well give up those two and maybe a couple more, depending on the strength of the evidence that they actually purchased PED’s, in exchange for getting the majority of players off the hook.

    A quick resolution is in everyone’s interest. If this drags out, I could see a court battle over MLB trying to use very suspect “evidence” against players to suspend them. Selig could be more disgraced than any player in the whole mess. Sounds to me like they’ll try to work out a deal.

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