Rodriguez Arbitration Decision A Clean Sweep For MLB

Alex Rodriguez sued Major League Baseball and the Major League Baseball Players Association on Monday as part of an effort to overturn his suspension. That suspension became effective on Saturday when arbitrator Frederic Horowitz issued a decision on Rodriguez’s appeal and reduced the slugger’s penalty from 211 games to the entirety of the 2014 season — 162 regular season games and any postseason games the Yankees might play.

Click here to read Rodriguez’s complaint and arbitrator’s 33-page written decision, which is attached as Exhibit A to the complaint.

The allegations in Rodriguez’s complaint echo the ones he’s made throughout the Biogenesis investigation: that MLB engaged in egregious conduct in an effort to prove that Rodriguez used PEDs; that MLB breached the confidentiality provisions of the collective bargaining agreement and joint drug agreement on numerous occasions, by selectively leaking damaging information; and that MLB unfairly targeted him for harsher punishment. For the first time, Rodriguez also alleged that the Players Association acted contrary to his interests during the investigation and appeal proceeding and that, together with the way the arbitrator handled the appeal, deprived him of due process.

Interestingly, Rodriguez did not ask the court for either a temporary restraining order or preliminary injunction to keep the suspension from going into effect. His attorneys had stated publicly over the weekend that they planned to ask for such relief from the court. Without such a request, his lawsuit will slowly wind its way through the courts before it reaches what is likely to be an unsuccessful conclusion. As I’ve explained before, and as discussed here, federal courts are loathe to interfere with decisions that result from a collectively-bargained arbitration proceedings.

As a result, the arbitrator’s decision likely means that Rodriguez will sit out the 2014 season. It also means that the decision will set a precedent for how the CBA and JDA are interpreted and applied. Given the breadth of the arbitrator’s decision, that’s a troubling prospect for the Players Association and the players it represents.

For months, we’ve been speculating about the legal basis for Rodriguez’s 211-game suspension in light of the 50-100-lifetime punishment scheme in the JDA. Before Bud Selig handed down the suspension on August 5, there were rumors that he was considering banning Rodriguez for life under the “best interests” clause of the CBA. In several posts, I parsed the language of the CBA and the JDA in an effort to devine the Commissioner’s thinking. Those posts can be found here, here, and here. I returned to the issues again on Saturday, after news spread that the arbitrator had reduced the suspension from 211 games to 162 plus the postseason in 2014.

As a reminder, Section 7.A of the JDA states:

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

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

Section 7.G.2 of the JDA, 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).

Now we know that Selig suspended Rodriguez under Section 7.G.2 of the JDA, and thus sidestepped the 50-100-lifetime regime. The arbitrator’s decision included a copy of Selig’s letter to Rodriguez. An excerpt:

Seligsuspension

The key phrase in Selig’s letter is his charge that Rodriguez engaged in “intentional, continuous, and prolonged use and possession of multiple forms of Performance Enhancing Substances, including but not limited to Testosterone, Human Growth Hormone, and IGF-1” during the 2010, 2011 and 2012 seasons. In other words, this was much more than single positive test, according to Selig, and therefore outside Section 7.A.

Selig also invoked the CBA’s “best interests” clause:

Seligbestinterests

But Selig wasn’t done:

Seliglifetimearg

In other words, it appears that the Players Association backed off Michael Weiner’s statements in July that the 50-100-lifetime regime in Section 7.A didn’t apply. On that score, Selig threatened that application of Section 7.A. would result in a lifetime ban, as there was ample evidence that Rodriguez had used PEDs at least three times.

Following the two-week hearing, the arbitrator found that MLB had proved by clear and convincing evidence that Rodriguez had intentionally and purposefully used at least three different PEDs over the course of three seasons. He credited the testimony of Tony Bosch which was, according to the arbitrator, corroborated by documents maintained by Bosch and text messages between Bosch and Rodriguez. He recognized that Bosch had initially denied any involvement with PEDs and that his change in testimony came after MLB agreed to pay his legal fees and provide security, but found those factors didn’t under cut Bosch’s testimony under oath.

The arbitrator also rejected claims by Rodriguez that his 11 negative drug tests countered against Bosch’s testimony. Rodriguez argued that if he had taken the PEDs in the quantity and frequency testified to by Bosch, he would have tested positive for PEDs at least once. Not so, said the arbitrator. “As advanced as MLB’s program has become, no drug testing program will catch every player,” he wrote. There’s no shortage of irony that MLB’s case against Rodriguez was strengthened by the holes in its own testing program.

Beyond the PEDs, the arbitrator found that Rodriguez did impede MLB’s investigation by inducing Bosch to lie about his involvement with Rodriguez and PEDs, and by attempting to obtain a false affidavit from Bosch. MLB’s claims that Rodriguez purchased Biogenesis documents in order to destroy them were brushed aside by the arbitrator because “while troubling, they would not affect the ultimate determination regarding the appropriate penalty in this matter.”  It’s an interesting view, to be sure. From where I sit, buying stolen documents and destroying them shows a much more egregious effort to impede an investigation than asking others to deny the allegations.

Overall, MLB prevailed on nearly every factual issue before the arbitrator. Even so, the question remained: on this evidence, what was the appropriate penalty under the CBA and JDA. And here’s where things get dicey.

From the arbitrator’s decision:

PenaltyphaseArod

Wait a second. The Players Association argued that the maximum penalty was 50 games as a first violation, but that Section 7.G.2 provided the “governing framework”? And that Section 7.A. — which does contain the 50-100-lifetime penalty scheme — doesn’t apply when there has been “continuous use or possession of multiple substances”? Frankly, that doesn’t make a lot of sense, and it makes me wonder if the Players Association didn’t clearly articulate its view of the governing agreements or the arbitrator misconstrued the union’s position.

Moreover, the arbitrator’s interpretation of Section 7.A. omits a key portion of the language. He points to the first part of the section that talks about a player “who tests positive for a Performance Enhancing Substance” (his emphasis) and concludes that the section couldn’t apply to a situation involving evidence of multiples uses of a PED. But he completely ignores the second part of the section: a player who otherwise violates the Program through the possession or use of a Performance Enhancing Substance will be subject to the 50-100-lifetime regime (my emphasis). What does that language mean if it doesn’t apply to players found to have used or possessed PEDs absent a positive drug test?

We then get the arbitrator’s pivotal holding:

NeifiPerez

Even though Section 7.A. doesn’t apply, it provides guidance to how Section 7.G.2 should be interpreted. And in previous decisions, baseball’s arbitrators have held that “separate uses are subject to separate discipline,” so even if Section 7.A. did control, it would require separate discipline for Rodriguez’s distinct uses of three different banned substances. That’s pretty close — if not exactly — what Selig threatened to Rodriguez back in August: if you persist that Section 7.A. applies, you are subject to a lifetime ban for three separate uses of three separate PEDs.

The arbitrator doesn’t reach that issue but, instead, holds that even if the progressive nature of 50-100-lifetime scheme doesn’t apply to justify a lifetime ban, there is ample support for finding three violations each subject to the 50-game penalty, and that equals 150 games, before you even get to the obstruction charge. In other words, 50-game suspensions can be stacked one on top of the other when MLB has evidence that a player used one or more PEDs on multiple occasions.

Think about that. When a player tests positive for a PED, and it’s the first violation, he is suspended for 50 games. But how many players use a PED only one time and that just happens to be when he is tested? Isn’t is more likely that a player who tests positive for PEDs had used on multiple occasions over an extended period of time?

And yet the arbitrator’s decision grants MLB broad powers to discipline players much more harshly when the league’s own testing program fails and the league develops independent evidence of use.

Whatever you think of Alex Rodriguez, Tony Bosch, and the entire Biogenesis mess, it’s hard to accept such an absurd legal result.  




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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.


232 Responses to “Rodriguez Arbitration Decision A Clean Sweep For MLB”

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  1. Los says:

    Why does New Jersey have the most toxic dumps while California have the most lawyers? Because New Jersey got first pick.

    Wendy, you are a fantastic analyst and I am glad that you have chosen the path you have. Great job.

    -6 Vote -1 Vote +1

    • DrBGiantsfan says:

      Let the ass kissing begin.

      -31 Vote -1 Vote +1

      • MDL says:

        You are welcome to share your own analysis.

        +12 Vote -1 Vote +1

      • cass says:

        Can FG implement an algorithm to make posts with a certain number of down-votes disappear so trolls won’t get so much attention?

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      • waynetolleson says:

        “Let the ass kissing begin.”

        Exactly. Great site for stats, but too many pretentious dickwads who think they’re reinventing the wheel every time they post a blog.

        The funny thing is they’re defending a complete fraud who cheated his entire career.

        But they’re so smart and clever!

        -15 Vote -1 Vote +1

        • Hungus says:

          wut?

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        • Los says:

          If you were caught speeding and the normal fine was $100 and you were fined $500, would that be just even if you were a jerk. As a society, we must strive to protect the rights of all, not just the people we like. Championing ARod isn’t popular,and while clearly he is a pompous ass face, he still shouldn’t have his rights violated.

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        • Bip says:

          This isn’t just about A-Rod. This is about the prescedent this decision sets. Basically if a player uses a PED a few times, if they don’t get caught the first time, then if MLB can find evidence they used multiple times, they can throw the 50-100-life scheme out the window and just ban the player for as long as they wanted.

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        • waynetolleson says:

          “This isn’t just about A-Rod. This is about the prescedent this decision sets. Basically if a player uses a PED a few times, if they don’t get caught the first time, then if MLB can find evidence they used multiple times…”

          That’s not what happened. MLB has been suspicious of A-Rod’s blatant and obvious drug use for over a decade now. A-Rod was interviewed by MLB multiple times over his connection to PED’s. A-Rod lied to MLB multiple times.

          Then, it came out he had already tested positive in 2003. Then, it came out that he was connected to Tony Gallea, another steroid provider. MLB interviewed A-Rod. A-Rod lied to MLB again.

          This process was repeated a number of times until eventually, MLB obtained airtight evidence that showed that while A-Rod was doing interviews saying he wasn’t using PED’s, A-Rod was, in fact, still using PED’s.

          So, if you cheat again and again and again and again and again over a period of decades and you keep lying about it to the people who make your career possible, eventually they’re gonna get fed-up with your ass.

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    • Sola says:

      Not sure why Los is getting the down-votes on that. Either people like lawyers too much or people don’t like the praise for Wendy. I think the lawyers and arbitrators in this case really screwed the pooch.

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      • deadpool says:

        Well, judging from the comments there are at least 7 lawyers in this thread. I know one for sure didn’t downvote the comment.

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      • cass says:

        It’s an inane post. Wendy is a lawyer.

        And comparing lawyers to toxic dumps isn’t even a good lawyer joke and lawyer jokes as a class are incredibly stale anyway.

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        • waynetolleson says:

          “It’s an inane post. Wendy is a lawyer.”

          Yup. Lawyers say whatever they’re paid to say. If she worked for MLB, I’m sure Ms. Thurm could make an argument stating the exact opposite opinion.

          -9 Vote -1 Vote +1

        • Brian Cartwright says:

          but she’s working for FanGraphs, not MLB, so she is free to try and give us a unbiased examination of contracts and law.

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        • waynetolleson says:

          “If you were caught speeding and the normal fine was $100 and you were fined $500, would that be just even if you were a jerk.”

          If it were the tenth time I was caught speeding and I was doing $150 in a School Zone, and then I acted like a total dick to the judge and jury, and just lied to everyone time and time and time again, I would think my penalty would be much more severe than if I just admitted to what I had done and took the penalty in the first place.

          A-Rod was offered a deal. A-Rod behaved like a spoiled little brat. Now, this fuck-wad – this man-child – is suing the MLBPA, the very people who entitled him to his stupid contracts.

          A-Rod is a steroid-taking douchebag. That’s all he has ever been since high school. He has cheated for two decades now. If there had been a proper testing and penalty system in place, A-Rod would have been banned permanently by 1998.

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        • waynetolleson says:

          “but she’s working for FanGraphs, not MLB, so she is free to try and give us a unbiased examination of contracts and law.”

          Wendy Thurm is being paid to be a contrarian. That’s what this site is largely about. There’s the obvious truth, and then there’s these cats, and they’re just all too hip and smart to believe what the riff-raff believe.

          Of course, when you’re defending the likes of A-Rod, you just look like a dumbass. But whatevs…

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        • Bip says:

          You can decide for yourself whatever punishment you think A-Rod deserves, but he, as an MLB player, is represented by the MLBPA, and therefore is protected by any agreement they reach with MLB. If the JDA between the MLB and the MLBPA is full of holes that the MLB is free to exploit whenever it feels like starting a vendetta, that could cause a major problem.

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        • Steroids says:

          @WayneTolleson

          Reading comprehension is hard. He was suspended for testosterone, HGH, and IGF-1. Stop associating my name with this guy!

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        • waynetolleson says:

          “Reading comprehension is hard.”

          Maybe for you it is. I can see pretty clearly that A-Rod used steroids most of his career while lying about it to league officials repeatedly, and that’s why he received this suspension.

          It’s really not as complicated as people are making it. The league caught wind of A-Rod’s PED use a decade ago. They couldn’t prove it, but they interviewed him about it. Then, they were able to obtain evidence that did prove A-Rod was using steroids. They gave A-Rod chance after chance to come clean, but rather than coming clean, A-Rod chose to defame everyone from his manager to his teammates to the MLBPA.

          A-Rod burned every bridge. A-Rod made his own bed here. A-Rod got an exceptional penalty – still not enough – because A-Rod is an exceptional cheater and an exceptional douchebag.

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  2. Simon says:

    “And yet the arbitrator’s decision grants MLB broad powers to discipline players much more harshly when the league’s own testing program fails and the league develops independent evidence of use.

    Whatever you think of Alex Rodriguez, Tony Bosch, and the entire Biogenesis mess, it’s hard to accept such an absurd legal result.”

    Isn’t that pretty close to the arbitrator imposing his own brand of justice?

    Also, section 7.K. of the JDA states that if someone tests positive for different varieties of drugs in the same test (i.e. stimulants, drugs of abuse or PES), then only the longest relevant suspension will be imposed. It seems illogical that additional punishment is appropriate for someone who takes a variety of different drugs in the same category.

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    • Gabes says:

      Rodriguez would be hard-pressed to show that the arbitrator “imposed his own brand of justice” since he reduced the penalty imposed by management. I don’t see any reasonable court overturning this decision. I do see this being a big deal the next time the CBA negotiations get rolling, so that’ll be interesting.

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      • deadpool says:

        If MLBPA doesn’t push for an almost complete rewrite of the JDA then the players should really start questioning leadership. What this makes very clear, is that players don’t have near the protection they thought they did when they signed up for it. That’s what people saying “this is just an exception” don’t get. The first time is always an exception. MLB can now arbitrarily call anybody an exception and have reasonable grounds for arguing that the 50-100-life system doesn’t apply.

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      • B says:

        While I get the argument that he reduced the sentence, isn’t that an incentive for management to simply reach for outlandish sentences that could never be exceeded?

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    • Hiram Hover says:

      About sec. 7K of the JDA:

      Two things distinguish that rule from the current case – 1, it positive findings from a test, which this does not; 2, it refers to a single test, and so in effect is saying, we know you were using multiple banned substances at that single moment in time (the tests, so far as I know, can’t tell how long or how many times you took the substance).

      In this case, the non-analytical evidence is that A-Rod was using multiple PES at multiple moments in time, which still gets you to multiple punishments.

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  3. pastlives says:

    “Bug” Selig, there’s a new one!

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  4. Spencer says:

    Bug Selig is my favorite Commish!

    But in all seriousness, well done.

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  5. NS says:

    Arbitrary-tor.

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  6. Leo says:

    As a lawyer, there’s nothing more annoying than an judge or arbitrator straw-manning your arguments in order to avoid a key issue. That’s pretty clearly what’s going on with the “MLB, the MLBPA, and the Player agree” paragraph you quote. There may be analytically sound reasons the just-cause paragraph applies here rather than the 50-game paragraph, but rather than explain those reasons, the arbitrator chooses to pretend the issue was not disputed.

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  7. Roger says:

    “And yet the arbitrator’s decision grants MLB broad powers to discipline players much more harshly when the league’s own testing program fails and the league develops independent evidence of use.”

    So, after a particularly difficult investigation, the police catch a serial killer. The judicial system chooses to give him life in prison rather than the death penalty. The killer says, “Not fair! You only gave Tom 20 years for the one murder you caught him red-handed on, when he’s really killed just as many as me! You can’t give me more than 20 years!”

    Which is unfair, the life sentence or the lack of evidence against Tom?

    Vote -1 Vote +1

    • cass says:

      A-Rod didn’t kill anyone. Didn’t think this needed to be said, but apparently so.

      Vote -1 Vote +1

      • Roger says:

        It’s an analogy.

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        • NS says:

          “But other features of the two things analogized are different!”

          – The worst and most common response to analogies. Yes, very good, different things are different. If that weren’t the case, no analogy would be possible.

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        • cass says:

          Not a good one. The moral stakes of murder are completely different from drug use. It completely changes the issue. It more confuses the issue than it enlightens.

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      • Leo Walter says:

        Don’t be ridiculous…or show your stupidity.

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    • deadpool says:

      The problem is, this is an offense for which life shouldn’t be on the table. Its more like if they both stole cars, and there was a statutory maximum of 15 years, then they decided on an upward departure for Arod.

      The law actually allows for that, but the judge has to state, with specificity, why he is departing from the statutory max.

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      • Roger says:

        I really don’t see where you get “an upward departure for Arod” unless you ignore that Horowitz decided that precedent established that the evidence should be interpreted as at least 3 offenses. A lifetime ban would not have been unreasonable. He got far less.

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        • deadpool says:

          But the presumption is that the 50-100-life framework applies, Horowitz even described it as a guideline. He described how he came to the decision, but that’s hardly unassailable. My point wasn’t that the upward departure from the guidelines was improper (although I believe it was), merely that the upward departure framework better suits the case at hand.

          Even that analogy breaks down, as if you assume Horowitz is exactly correct in his interpretation of the JDA then ARod and the other Biogenesis players are charged with different things, so the question then becomes whether or not ARod was properly charged.

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    • teakayfortoowon says:

      Except this particularly difficult investigation implicated “serial killer” AND Tom for multiple murders. Tom was sentenced to 20 years and “serial killer” was sentenced to death which was reduced to life.

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      • Simon says:

        The analogy falls down because almost everyone caught taking PEDs is likely to have done so regularly, and to have taken a variety of different drugs. MLB just doesn’t care about them enough to investigate fully.

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    • Dave says:

      More like the law says all serial killers are to be sent to a hospital for the criminally insane for not more than 20 years, and instead the killer is sent to prison for 60 years plus an extra 12 years for trying to defend himself

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  8. Renato says:

    It’s unclear to me what the author means in her last sentence, when she said that it is “absurd” that Rodriguez received a greater punishment because there was evidence of three violations (plus obstruction) instead of one. I found nothing remarkable about the arbitrator’s decision, or the punishment given to Rodriguez.

    The author surmises that players who test positive for a banned substance might have used the substance on other occasions. That may or may not be true. But they are punished based upon the evidence that MLB has. That is what happened here.

    The same thing happens every day in criminal courts across this country. Someone caught with an ounce of crack cocaine might have purchased that same ounce 100 times previously, but he’s punished for the bag he’s caught with. If an investigation undercovers evidence of multiple ounces, that person receives a greater penalty. If the defendant obstucts the investigation, their penalty is enhanced.

    This is garden variety stuff, not absurdity.

    +38 Vote -1 Vote +1

    • Paul C. says:

      This.

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    • psualum says:

      Well put, except there is a paragraph in the JDA that states “If a player tests positive for multiple substances, he will only be punished for the singular substance that allows for the longest ban”. So really, there not supposed to be able to stack the 50 games on top of each other one onto another. And if you then argue that he used them on 3 separate occasions and should have gotten 3 separate punishments, then the 50-100-life should apply and A-Rod should be out of MLB forever. They basically wanted to have their cake and eat it too on this one

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      • Roger says:

        “If a player tests positive….”

        ARod didn’t test positive, so this doesn’t apply. A test is a piece of evidence of use within the period that a steroid, or related metabolites, stays in the body. The evidence in the ARod case points to repeated use over 3 years. This is not at all equivalent.

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        • psualum says:

          Not saying I wholly disagree with that interpretation. Just that it seems somewhat arbitrary to me to say that since we couldn’t catch you with our actual testing protocol, we get to punish you more. Perhaps MLB should work on strengthening their testing, and if the MLBPA agreed to MLB’s interpretation of the governing rules for this case then it would be in their best interest to allow the tests to be strengthened.

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    • Richie says:

      Thank you, Renato. ThankyouThankyouThankyouThankyouThankyou.

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    • grant says:

      While true, the analogy doesn’t entirely hold. For one, most of the evidence MLB relied upon would have never seen the light of day in a real court. Because it’s a different process – employment issues, not criminal – there are different evidentiary standards, and that’s why MLB gets all this stuff in.

      Also, that person would still be treated as a first time offender. Perhaps convicted on multiple counts, but still a first time offender. Generally they’d still be entitled to some leniency.

      +8 Vote -1 Vote +1

      • Catoblepas says:

        Yeah, this is really it for me. You say it shouldn’t be surprising that he was “punished based on the evidence MLB has”, but it shouldn’t be MLB deciding how to punish people. The whole point of the JDA and the arbitration process is to avoid the Commissioner deciding what deserves what on a case-by-case basis. Similarly, Rodriguez is being punished here for being nationally visible as well as a PED user — the other Biogenesis players certainly could’ve been hit with something larger if this standard were applied evenly. The point is not to protect the rights of PED users, or Rodriguez, the point is to protect the rights of everybody, and doing so requires protecting their rights too.

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    • David says:

      So everyone else’s Biogenesis records only listed a single instance of PED use?

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      • Roger says:

        The others were effectively plea bargains.

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        • teakayfortoowon says:

          Are those allowed under the CBA?

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        • Brian Cartwright says:

          Bruan was given 65 games, presumably because he was a known cheat who had beaten the system, while the others got 50 – and were told if they dared to appeal or otherwise question the penalty they would be suspended for longer. All except for Rodriguez accepted the intimidation.

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    • Mark says:

      Totally agree. This, like her previous article on the decision, strikes me as an attempt to get page views not to reason her way through to a supportable conclusion.

      -15 Vote -1 Vote +1

      • Richie says:

        I’m sure the Daves are happy with the resulting page views. But as you can read from all the supporting posts here, many do feel that way.

        Part of it the desire to show that “I’m smarter than Murray Chass in ALL! ways!” When you assume that goal, the few weakest ones – where you’re actually not, in fact – become the most emotionally-laden issues. Hence the maxi-extreme dovishness on all things PEDs, as Murray hates them.

        Other part is the general left-wing nature of Saberism, as Dave Cameron has attested to. If corporations/”The MAN!” are inherently evil, then anything seen as a victory for them is also ipso facto evil and wrong. In which milieu nothing, even workplace safety (the PEDs the players now also want to eliminate) is something on which you cooperate with management. Agree to absolutely nothing that you don’t first negotiate in, and then only in return for concessions on something else.

        -17 Vote -1 Vote +1

        • pinch says:

          good work fellas. you have turned the last known comments section where people are reasonable and not dicks into something akin to the yahoo sports page. i, and all other denizens of the internet, thank you.

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        • Hungus says:

          wut?

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        • chuckb says:

          You’re an idiot, trying to equate an appreciation for baseball analytics to something politically ideological. The only necessary commonality between the two is that you loathe both.

          I could apply similar logic to pedophiles and lima beans.

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      • Sola says:

        The problem with this line of thinking is that on drug charges, criminals usually serve concurrent sentences.

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        • Dave says:

          The other problem is that in actual drug prosecutions, the government wants to convict people UP the chain of distribution, not down. The government target naturally would be Mr. Bosch, and the government would try to flip the users/players into testifying against him

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    • Hoosier says:

      Which is why it was so unfortunate for Wendy to end her analysis describing the decision as “absurd”. It clearly demonstrates her bias in this case. You can make a case that the arbitrator’s decision is flawed, although I wouldn’t, but to call it absurd is completely off base, as Renato clearly explains.

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      • Wil says:

        I’ve found that a lot this week. There seems to be a bias from a lot of authors here and I am not sure why. I don’t think all are as overt as Wendy’s but strange none the less.

        I think there are certainly concerns over this whole process and the interpretation of the CBA but in the end I think there is more than enough evidence to show A-Rod as guilty and that the MLB does have a strong case against him.

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    • Leo Walter says:

      Thanks Renato. It seems to me even certain lawyers need this incident simplified to understand it. All the parsing of words,phrases and paragraphs doesn’t change the fact that Rodriguez ranks right up there in the all time MLB Scumbag HOF.

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    • Steve Holt!! says:

      This article also demonstrates a lack of understanding around the issues of PED testing. When most traditional drug testing programmes were drawn up, it was on the basis that a random urine sample would be enough to monitor for the majority of substances due to the longer half life of the substances and their masking agents. However, as balco demonstrated, very short acting substances that are quickly cleared from the system can be used, and the subsequent urine test is unlikely to pick up on them.

      The biogenesis saga indicates that there are really two drug testing programmes in play – the urine and blood testing programme and an investigative programme. In the former, if the sample turns up positive, then little else is needed for suspension. Braun argued on a chain of custody technicality. In the latter, if the investigation can prove to a standard dictated by the cba that the player used, then a suspension is warranted. This is what happened here.

      The problem is that the cba and testing procedures are outdated, and inadequate for the current issues around the current tests. There are likely to be more “investigative” suspensions in the future. MLB has obviously learned fron BALCO which is the major precursor to this, which left them with egg on their faces. They have done much better this time, and have managed a difficult situation relatively well, whilst preserving a-rods right to appeal.

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      • Llewdor says:

        Then the CBA should be updated.

        But until it is, they shouldn’t be allowed to just make stuff up like this.

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        • Steve Holt!! says:

          Problem is that the CBA negotiation cycle takes years, whereas the PED developments are much faster than that. Also, the CBA cannot be changed unilaterally

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        • Brian Cartwright says:

          There have been periodic updates to the JDA as issues have arisen.

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        • the big issues are around the frequency and randomness of testing. They won’t be mucked around with until the next cba cycle begins.

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    • bummer says:

      My exact thoughts. I was wondering what Wendy was confused about.

      Lance_Rod was incriminated (in part) by more than 500 text messages over an extended period of time, involving 3 different types of PEDs.

      I’ve appreciated Wendy’s clear and concise posts in the past. Not sure why she harped on mlb’s drug testing shortcomings. The criminals are always ahead of the “good guys”.

      Now that it’s reconfirmed that the chemists/dealers hand out oral testosterone that dissipates before any post-game testing, the only logical direction is to conduct in-game testing. At some point oral swab testing should detect elevated testosterone levels accurately enough.

      That would be a pathetic outcome, but both parties brought this onto themselves.

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    • schneidler says:

      “The same thing happens every day in criminal courts across this country. Someone caught with an ounce of crack cocaine might have purchased that same ounce 100 times previously, but he’s punished for the bag he’s caught with. If an investigation undercovers evidence of multiple ounces, that person receives a greater penalty. If the defendant obstucts the investigation, their penalty is enhanced.”

      I’m not really sure that this analogy works. A greater penalty sure, but not just multiplied by the base penalty. Right? Let’s say the usual penalty, the sentencing guideline, for possessing an ounce of cocaine is 6 months in jail. And for possessing 8 ounces its a year in jail. And suppose the police/district attorney’s office come upon evidence that Joe Citizen has possessed a single ounce of cocaine 8 different times in the past. Would they then attempt to give him 48 months (8*6 months)? Do the penalty phases stack up like that? I’m really asking because I’m not a lawyer and I don’t know. I think it more likely that Joe Citizen would face a single charge of possessing an ounce of cocaine and do the 6 months, even if everyone knows its probably not the first time he did it and there is some evidence that he had some previously. Or perhaps he would get the full year for in effect possessing 8 ounces.

      What’s the law say? If I get caught shoplifting a candy bar and admit I’ve stolen 1 candy bar every Saturday for the last 10 years would I technically be looking at the standard misdemeanor penalty *520 for every theft during that time frame?

      I’m not an Arod defender–the whole thing saddens me. But I don’t find the author’s use of the word “absurd” in regard to the specific reasoning of the arbitrator to be that egregious.

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    • schneidler says:

      “The same thing happens every day in criminal courts across this country. Someone caught with an ounce of crack cocaine might have purchased that same ounce 100 times previously, but he’s punished for the bag he’s caught with. If an investigation undercovers evidence of multiple ounces, that person receives a greater penalty. If the defendant obstucts the investigation, their penalty is enhanced.”

      I’m not really sure that this analogy works. A greater penalty sure, but not just multiplied by the base penalty. Right? Let’s say the usual penalty, the sentencing guideline, for possessing an ounce of cocaine is 6 months in jail. And for possessing 8 ounces its a year in jail. And suppose the police/district attorney’s office come upon evidence that Joe Citizen has possessed a single ounce of cocaine 8 different times in the past. Would they then attempt to give him 48 months (8*6 months)? Do the penalty phases stack up like that? I’m really asking because I’m not a lawyer and I don’t know. I think it more likely that Joe Citizen would face a single charge of possessing an ounce of cocaine and do the 6 months, even if everyone knows its probably not the first time he did it and there is some evidence that he had some previously. Or perhaps he would get the full year for in effect possessing 8 ounces.

      What’s the law say? If I get caught shoplifting a candy bar and admit I’ve stolen 1 candy bar every Saturday for the last 10 years would I technically be looking at the standard misdemeanor penalty *520 for every theft during that time frame?

      I’m not an Arod defender–the whole thing saddens me. But I don’t find the author’s use of the word “absurd” in regard to the specific reasoning of the arbitrator to be that egregious.

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  9. Kris says:

    I certainly cannot be the only one that believes the majority of the suspension arose from Rodriguez’s stubbornness and attempts to circumvent the process. The MLB had all of the aforementioned tools available and must’ve made Rodriguez’s lawyers privy to their intentions. While the justifications for length are loosely tied together and often contradictory, it’s fairly clear that Selig basically said, “Come at me, brah!,” and A-Rod chose to do so.

    It was a hard-headed man challenging a hard-headed organization, and it was unwinnable. Had Rodriguez solely worked within the framework of the JDA, his suspension probably would’ve been lighter. Instead, he chose to allegedly interfere with the investigation and take his case to the media.

    I understand it’s an unpopular opinion to defend the MLB but it’s pretty clear to me that A-Rod was going to have to take his medicine. He fought like a man who was fighting for his brand, and his eventual enshrinement. His long-term finances and reputation aren’t affected that much by the length of the suspension — be it 50 games or 200+ games. Thus, most of his actions are completely rational. For Rodriguez, it was either 0 games or bust. He took a gamble and lost. That’s what this ruling tells me.

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    • Youppi! says:

      you can’t fight city hall… he could have taken 50 or so games, had the sordid details sealed, dealt with it, and been back on the field to chase his HR bonuses and collect his salary. he chose hubris and lost. Sayonara.

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    • Jason B says:

      “I certainly cannot be the only one that believes the majority of the suspension arose from Rodriguez’s stubbornness and attempts to circumvent the process.”

      Who was circumventing collectively bargained processes here? A-Rod perhaps, but MLB most definitely.

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      • Train says:

        Most definitely? Please tell us more? You may not like what they did, but as far as I can see they didn’t break any rules, the exploited loopholes. And that may be disgusting in its own right, but we are talking about rules here. A-rod broke the rules multiple times, then lied about it, attempted to buy and destroy evidence, threw other players under the bus, etc.. So the PED violation falls under CBA/JDA and the rest falls under actions detrimental to the sport of baseball. Call the PED suspension what you want – 50 games, 100 games or 150 games, then call the rest of the penalty for impinging the game the difference between the PED suspension and 211 games. Then the message to future violators is this – if you get caught, fess up and take your penalty, if not, the penalty will be worse. Isn’t this what we teach our kids? And I have yet to see how this violates the spirit of the CBA/JDA agreements despite Wendy’s arguments.
        Also, I’m tired of hearing how what A-rod got was unfair to this player or that player. Yes, you’re right, so those other players should have received stiffer penalties.

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        • Wil says:

          I also find it hilarious that people look at what happened to A-Rod as “unfair”, but not A-Rods actions and their impact on other MLB and MiLB players.

          How much of his numbers are inflated by drug use and how many homers/hits/BB did he get off of pitchers he might not otherwise? Those things that potentially impact someone down the line when it comes to salary negotations, arbitration or FA.

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        • Hungus says:

          @Wil, we’re now claiming that PEDs help with walks? These things truly are magic.

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        • grandbranyan says:

          Barry Bonds BB% 1986-1998: 16.8
          Barry Bonds BB% 1999-2007: 26.7

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  10. David says:

    So I guess A-Rod was the only player involved with Biogenesis who used more than one substance? I doubt this is the case. Are those records public?

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    • Paul C. says:

      Others took what amounted to a plea deal, which traditionally result in reduced punishment.

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      • AK7007 says:

        I didn’t know the CBA contained language that allowed for or encouraged plea deals.

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        • Harry says:

          IIRC, all the other players who were suspended bc of the Biogenesis investigation took a 50 game suspension in accordance with a first positive test for PEDs, besides Braun bc of his previous issues. Basically, they admitted to using PEDs and took the suspension.

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        • ChrisS says:

          Everything can be negotiated. This is no different.

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        • Jason B says:

          “Everything can be negotiated. This is no different.”

          It already has been. Now the 50-100-lifetime framework is near-meaningless, for better or worse.

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        • Wil says:

          Jason B, not true. It’s still in effect for those who get caught on a positive test.

          You’re looking at A-Rods case as if it’s going to dictate the results for others going forward. Most PED suspensions happen because of the player testing positive, which is then used against the player to justify the suspension.

          A-Rod had a whole doping program and scheme, and the evidence MLB got wasn’t one test (like they would normally), it was years of data and multiple abuses. That’s why it happened.

          If an MLB player tested positive two separate times for two separate drugs within the span of two days, he would be suspended for two violations of the drug agreement, not one.

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        • AK7007 says:

          How was the evidence against the other biogenesis scandal players different? Was there no schedule for their doping? Was there a piece of paper at Biogenesis of America that said “these guys only took PES once?” No, they likely also had detailed doping schedules like A-rod did.

          It was different because they didn’t fight. It was a plea bargain to avoid bad publicity. If you are going to have an appeals process in place, it should also be disallowed to punish a player more severely for choosing to use it.

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        • Steve Holt!! says:

          The 50-100-lifetime framework is going to be rigidly applied for positive urine and blood tests. For the results of investigations yielding reasonable evidence of use, if you go quietly and work with MLB on the issues, you will get the certainty and benefit of the 50-100-lifetime penalty system. Otherwise, best of luck

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  11. dls says:

    I would completely agree with Renato. This doesn’t seem absurd at all to me.

    Also, the statement “The MLB, the MLBPA, and the Player agree that section 7.G.2 of the JDA supplies the governing framework for this case.” leads me to believe that all parties were made aware that if they used 7.A and the Player was found guilty, the Player could/would receive a lifetime ban. And therefore the MLBPA and the Player agreed to have the decision guided by 7.G.2 and avoid that potentially draconian outcome.

    Why else would that statement be so clearly expressed in the decision?

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  12. Paul C. says:

    Wendy, I like others fail to see any “absurdity” here. MLB had very strong evidence (given that Bosch’s testimony was determined to be quite credible and corroborated by other evidence), which is essentially all a positive test is. Perhaps your argument is whether Bosch’s testimony should have been given the weight it did, but that’s the factfinder’s job and the panel is in a unique position to do so. If one thinks this has to be shoehorned into 7.A, then there is a strong argument that ARod should be banned for life. PED tests are one piece of evidence, and here MLB had other strong and valid evidence of systematic, multiple and separate offenses. The offenses should properly be considered as separate, and given that credible evidence was given of each, that has the same legitimacy as a positive test. It seems the arbitrator wanted to avoid applying 7.A and giving ARod all three strikes in this single proceeding and banning him for life. Instead he assessed the punishment under a just cause standard pursuant to 7.G.2 and allowed the 2014 ban to stand.

    At worst the arbitrator made an effort to arrive at a less-controversial decision, but even if that were true, it was not “his own brand of justice” (as alluded to earlier as an explication of the standard to set aside an otherwise-binding arbitration decision) — it was what MLB, one of the parties here, sought. MLB sought the ban through 2014, mentioning the lifetime ban in the letter only as an alternative position it could take.

    Given the amount of evidence here and the conduct it established had taken place, this result is completely just and the reasoning not absurd at all.

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    • deadpool says:

      And that’d be fine and dandy if this was non presidential. But where we are now is a dangerous place for all the players. Not only is it now clear that testimony as sketchy as Bosch’s bought and paid for testimony can get someone suspended, but that suspension can basically be anything the commish thinks an arbiter will buy.

      To put that in perspective, MLB now has incentive for its testing not to work. You catch somebody with the testing once and you suspend them for 50 games. You miss them, and get someone to testify against them, you get a whole season. Not to say that this is going on, but the point is that this decision proves its possible. You never want to open the door for this kind of corruption.

      More practically, anybody can be accused of trying to circumvent the testing or obstructing the investigation. Nobody wants to get caught. Despite the fact that it should be clear that this was considered in the original 50-100-life framework, such behavior can now be used as justification for arbitrary suspensions. Every player who gets caught is going to be guilty of that, so should MLB decide take that path they can completely invalidate the collectively bargained for 50-100-life system.

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      • deadpool says:

        Ah “precedent.”

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      • AK7007 says:

        It also invalidates the appeals process. It’s clear that Braun received a harsher than normal punishment for “impeding” – when what he did was use the agreed upon appeals process to clear himself of wrongdoing. (even though he was probably guilty) So why have an appeals process if appealing itself counts as “impeding?”

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        • deadpool says:

          Another fine point.

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        • ChrisS says:

          Braun picked up extra days off because of his previous involvement. MLB would probably gave him the same options, look we can throw the book at you for 3 violations, fight through an arbitration hearing that you WILL LOSE and you’re suspended for life – or – you can take the rest of the season off, say you’re sorry, and come back next year. Braun wisely chose the shorter suspension.

          ARod, however, did not.

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        • Catoblepas says:

          Yes we understand why Braun got more days, but why should he be punished for using the legal process agreed upon by both the players and the league as the fair way to challenge a PED suspension? Why does Selig get to label that cheating, or conduct detrimental to baseball?

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        • Paul C. says:

          Appealing itself most certainly is not considered “impeding.” Lying, fabricating or tampering with evidence, or generally evading or frustrating an investigation counts as “impeding.” If Braun had simply told the truth from the beginning and presented exonerating evidence through the normal appeals process, then there would be no special issues. And this case certainly does not change any of that.

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        • AK7007 says:

          From what we know about Braun’s appeal, his “impeding” was lying and saying he didn’t take testosterone. His complaints about the sample being improperly handled were valid. The problem I have is that the lying is part of the 50 game suspension implicitly. Nobody is taking steroids without also covering it up. The lying shouldn’t count extra, it was bargained as part of the 50-100-lifetime.

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        • Al Dimond says:

          @AK: He lied after being confronted. Say I broke my employer’s code of conduct. By not bringing my own offense to HR or whatever I’d be lying by omission. If my offense was discovered and I was confronted with it, then I lied about whether I’d done it, that would be different.

          Now, in a court of law, if I beat the rap that would be the end of it. If new evidence came up later to prove I was guilty, too bad for “The People”, shoulda found it during discovery. This ain’t a court of law.

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      • Paul C. says:

        I understand your concerns, but the fear that the sequence of events in this case will somehow become routine seems excessive and misplaced. There were unique circumstances here, in the conduct and the amount and type of evidence, among many others. And if MLB is able to get whistle-blowers to come forward and lead a case against a player, doesn’t that further the aims of the JDA? It’s only corrupt if it’s fabricated or based upon non-credible or flimsy evidence, which several protections exist to prevent. If a first offense is established by a whistle-blower and not a positive test, it still must result in a 50-game ban in accordance with 7.A. This case and this precedent does nothing to negate that. This case is easily distinguished from the more typical case of a first-time offender. The idea that this precedent destroys all due process and the framework of the JDA really is the product of overactive imaginations.

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        • Hiram Hover says:

          Well said. These ominous but unspecific warnings about the precedent this case will set strike me as just another variety of slippery slope argument.

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        • AK7007 says:

          No. This case has basically established that if I take a cocktail of PEDs on tuesday, and again on thursday, then on friday my dealer gets caught and rolls over to testify that I took PEDs twice, I get 150 games for first, second violation. Whereas if that same player had tested positive on friday instead of his dealer getting caught, he gets 50 games. The way that 7A was written, A-rod should be a first time offender. It was the first time he was caught.

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        • Hiram Hover says:

          AK7007

          The arbitrator’s decision says the principle that “separate uses are subject to separate discipline” was established in the Neifi Perez case 5-6 years ago.

          Whether that’s an accurate characterization of the case, or whether that decision is even publicly available, I don’t know.

          But if it’s true, this case didn’t create that precedent–it just applied an earlier one.

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        • Paul C. says:

          It doesn’t say that. ARod didn’t have two total offenses, one on Tuesday, one on Thursday. And even if MLB took that position in a case similar to the one you present, why shouldn’t the offender be punished for his conduct? For purposes of your hypothetical let’s concede that what the trainer said happened is the truth, which I think is one of the assumptions you made. Yes, a whistleblower presents a risk of greater punishment — assuming the whistleblower presents sufficient credible evidence — than a positive test, because there could be multiple instances. Isn’t this one of the risks of proceeding with illicit conduct?

          If you actually did use different PEDs on separate occasions, you are risking getting caught each time, and that includes the risk that your co-conspirator will testify against you. I think you are saying that the union didn’t consider or foresee this situation when they negotiated the provisions; that may or may not be true, but it would be mighty hard to sit around a negotiating table and say, “even where you have clear and convincing evidence of multiple offenses, you can only punish me for one.”

          Again, your only argument has to be that no evidence other than tests are reliable. And I fundamentally disagree with that. If there is clear and convincing evidence of multiple offenses with different PEDs on different occasions, the player should be punished for each, whether in accordance with the 7.A schedule or under a just cause standard reviewable by the arbitrator.

          I still fail to see any rights being trampled on here. What I do see is commenters searching for reasons why a player shouldn’t have to answer for conduct that is in clear violation of the JDA.

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        • Steve Holt!! says:

          AK7007

          Don’t take PEDs then. Simple really

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        • Paul C. says:

          That was a reply to AK7007 not Hiram Hover

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  13. Aaron (UK) says:

    In other words, 50-game suspensions can be stacked one on top of the other when MLB has evidence that a player used one or more PEDs on multiple occasions.

    Sounds like a good deterrent to me.

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    • Steve Holt!! says:

      Correct. Don’t use and you won’t get caught

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    • chuckb says:

      Of course it’s a deterrent, but it’s also one that pretty clearly violates the spirit of the JDA. There’s little doubt that the understanding that existed when the JDA was agreed to was that taking a cocktail of 3 PEDs once is 1 violation, worthy of a 50 game suspension, not 3 violations worthy of a lifetime ban. Now Bud and his arbitrator friend are coming back and saying, “Gotcha!”

      Any punishment system should be transparent to all parties from the beginning so that everyone knows what to expect when a violation occurs. That clearly wasn’t the case here. As a result, the obvious precedent established here is that any non-testing violation of the JDA is potentially going to subject a player to a lifetime ban, as Bud is simply permitted to ignore 7.A. The irony, of course, is that these violations, because they’re dependent on the MLB-purchased testimony of drug dealers rather than actual physical evidence, lack the reliability of a failed drug test.

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      • GymePoggle says:

        The JDA is pretty clear with its language. Nowhere does it say that the words “a Performance Enhancing Substance” can mean either a single substance or multiple substances. Also, Bud’s “Arbitrator Friend” is appointed jointly by MLB and the MLBPA.

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    • chuckb says:

      Death by torture would be a deterrent as well.

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  14. I think A-Rod’s lucky he didn’t get the lifetime ban he was and is clearly being threatened with. And I’d think that the happiest people about it have to be clean players–they’re the ones most “offended” by serial PED users. If I were a MLBPA member and I were clean, I’d be thrilled about the league hammering a serial user, A-Rod or any other.

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    • deadpool says:

      Except that it represents an erosion of the rights the MLBPA thought they’d collectively bargained for. The fact that the players don’t seem concerned about it because its ARod doesn’t matter, the union is giving away their rights. That should be scary to the players, your union should never ever give up a right its already earned without a concession.

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      • AK7007 says:

        It always infuriates me when people fail to realize that you have to care about the rights of criminals, because those are your rights too. We don’t get to decide “well, that guy is a jackass, he doesn’t deserve proper treatment.” We have to defend the rights of the people who do things wrong, because they are the only ones who are in a position to uphold them. Otherwise, if and when somebody innocent is accused, they won’t be able to properly defend themselves.

        ends don’t justify the means just because this is A-rod

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        • ChrisS says:

          Arguing “for rights” has little to do with Arod in this case. The JDA was collectively bargained and contains plenty of provisions for the MLB.

          Arod is toast.

          Like someone else said, the true fight will be in the next CBA.

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        • deadpool says:

          ChrisS

          Isn’t that what collective bargaining is for though? It allows employees to effectively ensure rights against their employers because they individually would be powerless. In that sense, this is very much about rights.

          That said, ARod is toast, and the next CBA negotiations should be a bloodbath if the MLBPA has its druthers. I don’t want a strike any more than the next guy, but the MLBPA has to do something to prevent MLB from running roughshod over these arbitration hearings.

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        • bobby says:

          deadpool

          from what ive seen and heard, most players (the clean ones at least) seem to want stricter penalties and better testing so that they have a level playing field (no pun intended) when it comes to FA and whatnot. the MLBPA represents more than just Arod, it represents the players as a whole, and whats to say that the majority of the MLBPAs constituents dont agree with the original suspension or the arbitors ruling.

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        • Tim says:

          The next CBA negotiation is guaranteed to be a bloodbath over revenue sharing and local TV money anyway.

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        • Brian Cartwright says:

          @Bobby – strict punishment is acceptable, but not arbitrary punishment. The whole reason it’s been negotiated and spelled out in the CBA is to prevent the commissioner from making it up as he goes.

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        • chuckb says:

          @Chris — that’s exactly why the collectively bargained JDA should have been followed.

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      • Richie says:

        Unlike Wendy and self-righteous Saberists, having reasonably cleaned up the game, the constituents of MLBPA – i.e., the players – now want to keep it that way. They don’t want to go back to the day where they were pressured to shrink their own testicles in order to keep up with those that were.

        Back in the day when Saberists were excorciating anyone who suggested Barry Bonds might be roiding, Frank Thomas took a lonely stand, to the horror of the union’s then-leadership, in favor of players joining in to clean up. Now Frank’s position has won the day. Especially among the players. Praise be!

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        • deadpool says:

          Irrelevant. The Union had earned rights, and now that right is gone. That’s an unacceptable thing for a Union to allow to happen with no compensation. Where they find themselves now is that a player can be falsely accused or even return a false test positive, and he can’t fight it without fear that he’ll receive an even longer ban. While its likely most players would be able to prove their innocence, the burden of proof should be on the accuser, and the MLBPA just gave that right up.

          The fact that its popular among the players doesn’t mean its good for them.

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        • ChrisS says:

          @Deadpool
          Where they find themselves now is that a player can be falsely accused or even return a false test positive, and he can’t fight it without fear that he’ll receive an even longer ban.

          Not true. There’s nothing to suggest that Braun was falsely accused of anything. He took suspension longer than the typical 50-games for a first violation. But you have no idea what evidence that MLB had and what they would have suspended him for (three violations and life like ARod?). He accepted the deal with the likely shortest possible suspension.

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        • Big Daddy V says:

          I would like to see your sources that give the percentage of players that use PEDs each year.

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        • deadpool says:

          @ChrisS

          Whether Braun was falsely accused or not doesn’t matter, the point is the hypothetical situation could emerge rather easily, because this ARod decision means that players may now face additional punishment for fighting the suspensions. If the 50-100-life can be used as a mere guideline in almost any case (as the ARod decision shows) then MLB has the ability to apply a ton of pressure to any player to get them to just take the suspension without fighting. The prevention of that pressure is why the 50-100-life system was agreed upon in the first place, and now that its eroded it doesn’t take a great leap to imagine an innocent player getting caught up in it.

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        • bjsworld says:

          And this why people hate unions.

          Clean players (who make up the vast majority of the union) I’m sure and doing a quiet happy dance. Even if (and that’s a huge if) MLB overstepped the bounds established by the CBA, the effect of that decision benefits virtually everyone. Clean players, teams, fans, and the game itself benefit from an environment where PED use is severely restricted or completely eliminated.

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        • Paul C. says:

          deadpool, I still fail to see what has been destroyed in this case. The process built into the CBA/JDA, as negotiated and agreed to by both sides, was followed. MLB presented a significant amount of credible and damning evidence, in the course of that correctly-conducted appeal process. What are you objecting to? Are you saying any time a player gets punished it’s somehow a trampling of rights? I will assume (and I apologize if this is not actually what you’re saying) that what you are saying is that no evidence is reliable other than a positive test. That simply cannot be true.

          And, if you had your way and testing became the only way to violate the JDA, then certainly there would have to be far more – and more effective – testing. But the fact is that the testing will never catch up to those who have the resources (read: money) or those with the will and a modicum of sophistication about designing a PED program. Which is why the MLBPA should rest easy, because testing will still be the only way to catch an offender in the overwhelming majority of cases, and the testing is easy to beat. (Did you see how sloppy and amateurish ARod’s secret program was? Lance Armstrong would laugh at it. And ARod passed 12 straight tests.)

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        • Tim says:

          Don’t get the straw men being thrown up here. What Deadpool is saying is that ARod should have been suspended 50 games because the bargained testing protocol clearly indicates that “first offense” means “first suspension,” and non-testing suspensions should be held to the same standard. If they aren’t, then it becomes trivial for MLB to seek non-testing suspensions against any player they particularly dislike.

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        • chuckb says:

          Yeah, there were myriad essays here at fangraphs talking about how Bonds never took PEDs.

          When people who have no idea what they’re talking about open their mouths (or type on their keyboards) they let the entire world know what idiots they are. If I were so stupid, I’d take great pains to hide it.

          Self-awareness is your friend. Embrace it.

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      • Adam says:

        Right, what’s at issue here – and what the other commenters are missing – is that the “absurdity” of the decision lies not with the actual punishment but how that punishment is rationalized. This decision sets a very bad precedent for the MLBPA and players’ rights under the CBA. And even clean players, under admittedly different circumstances, can be hurt by other applications of it.

        +14 Vote -1 Vote +1

        • bobby says:

          I disagree. It seems to be laid out pretty clearly that the Commissioner has the explicit right, under section 7.G.2 of the JDA, to pass down suspensions as he sees fit for players that do not actually fail a test, ie fall under section 7.A, with just cause. Clearly the arbitor found there to be just cause for Selig to suspend Arod under this clause. Maybe its just me, but it seems rather straightforward

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        • Wendy Thurm says:

          This is exactly my point.

          +9 Vote -1 Vote +1

        • Steve Holt!! says:

          If MLB just sticks to needing positive test results to suspend, then (i) either the testing frequency needs to increase to daily or (ii) they won’t suspend anyone ever. The new, expensive muscle recovery and growth agents (ie non-amphetamines) won’t be picked up very easily with traditional testing.

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        • Alex says:

          The Commisioner’s ability to punish a player under 7.G.2 only applies to violations of “Section 2…not referenced in Section 7.A. through Section 7.F.” Because 7.A references “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” it seems fairly clear 7.G.2 can’t be used for punishment due to use or possession of PEDs. To me 7.A says: “A player who tests positive for PEDs, or is found to have used or possessed PEDs by other evidence shall be subject to the following discpline…” The league should have either suspended ARod for 50 games or banned him for life if they were going to use the JDA as the basis for it.

          If 7.G applies to every instance of the league learning of use/possession of PEDs through testimony or circumstantial evidence than the “or otherwise” part of that section means absolutely nothing. 7.G makes much more sense as a follow up catch all to punish people for things connected to PED use and abuse like solicitation, funding, selling, providing to teammates, etc.

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        • Tim says:

          Everybody who doesn’t play for the Yankees has been hurt by this application of it.

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        • chuckb says:

          Bobby– why should the commissioner be permitted to arbitrarily mete out punishments “as he sees fit” when a collectively bargained punishment is clearly stated in the JDA?

          Since the league and the players collectively bargained a punishment regime and included it in the JDA the commissioner should be obligated to follow it. If Selig had no intention of abiding by that regime he never should have agreed to it.

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  15. Carlos Marmol says:

    The absurdity is that MLBPA, even after seeing the Neifi Perez case, negotiated a new CBA and actually 1) left punishment for NAP violations up to Selig’s discretion instead of 50/100/life and 2) didn’t insist that multiple violations meant getting caught multiple times, not using multiple times/multiple drugs (because basically everybody who used PEDs did that). Total incompetence-or worse- on the PA’s part in the last round of negotiation (as though you couldn’t say that about accepting draft slotting and the QO system anyway).

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    • AK7007 says:

      This. Essentially, the decision abolished the CBA punishment framework entirely. Nobody is stupid enough to think that a first positive test is a first time usage. Players are probably using for months before they get caught unless it is one of those unintentional “cough syrup” things. The “intentional, systematic use” of PES was implied in that original 50-100-lifetime framework. Apparently it needed to be in there.

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      • Wil says:

        I disagree. You’re right that no one is stupid enough to believe a player hasn’t been doping for a while when he gets caught. The difference is the MLB doesn’t have evidence of that doping, all they have is the single positive test, which is the only thing they can punish the player for.

        A-Rod is different, they had detailed records that covered three years, WAY beyond just a single failed test.

        They even actually kinda supported your argument because they punished him for three separate drugs, not the systematic use of one drug.

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        • Paul C. says:

          I agree with Wil. So the PA messed up because they didn’t provide an out for someone who systematically uses multiple different PEDs for three years?

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    • psualum says:

      I wonder if the QO and draft slotting were the necessary concessions to keep a hard cap off the table.

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  16. maqman says:

    My non-legal opinion is he should have been banned for life in “the best interest of baseball.” How many kids has he shown that cheating is okay if you can make many millions of dollars and don’t get caught first. Pete Rose got it for a lot less.

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    • Please Stop says:

      The Pete Rose argument is pathetic.

      He gambled on games. That is rule #1 for lifetime bans: you do NOT gamble on games. You don’t gamble on your team, on any other teams, to win, to lose, to cover a spread, ANYTHING. These rules were strictly laid out to all players and managers. He broke them, thus lifetime ban. Why is this EVER brought up?

      On the subjective side, I think gambling presents a MUCH MUCH bigger threat to the game than PEDs. Think about it, really actually think about how much damage having gambling interests in the game can do.

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      • AK7007 says:

        Soccer hardly even felt any effects from their gambling scandal. It’s becoming hard to imagine a situation besides a lockout that results in anything less than massive profits for the highest sports leagues.

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      • chuckb says:

        Not nly did he gamble on games, he gambled on his own team. Moreover, he agreed to the lifetime ban. The comparison to ARod is ridiculous.

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    • deadpool says:

      There has been absolutely no correlation between usage of PEDs at the highest levels of professional athletics and an increase in use of high school athletes. The real reasons are far more complicated.

      http://sportsanddrugs.procon.org/sourcefiles/PediatricsReport2007.pdf

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    • Brian Cartwright says:

      @maqman – since you brought up “the kids”, MLB is paying more than a million dollars of Bosch’s legal fees to enable him to avoid prosecution by the Feds for sales of PEDs to minors, in return for his testimony against Rodriguez.

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  17. Richie says:

    The constituents of MLBPA, the players, don’t want contractual protection of PED users. Never mind all you people who are saying losing such hurts them. They are very happy to have a reasonably clean game to now play in, including harsher not lighter penalties for those using PEDs in order to beat them or take their roster spot.

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  18. grant says:

    A-Rod is such an ass, it’s hard to defend him. But the arbitrator’s decision is questionable on a host of different levels.

    The absurdity is that 211 and 162 game figures came out of thin air. Entirely arbitrary.

    Perhaps 50 + 50 + 50 could have been justified as being loosely grounded in the CBA – though a bit questionable – but the arbitrator didn’t even really explain how he arrived at the figure. As a lawyer, if I was looking at this decision in trying to deal with a subsequent case, I wouldn’t know what the hell to make of it. That’s should be a big problem to MLBPA.

    But the MLBPA does have a problem. Arod’s right that Weiner, though a prince of a guy by all accounts, should not have publicly stated that Arod should accept a certain number. Arod’s right that MLB blew the doors off non-disclosure by having Selig on 60 minutes, and that they shouldn’t be able to keep him off the stand at the hearing and then put him on 60 minutes.

    He kind of deserves it, but he really is getting screwed here. Other players should be concerned.

    Crazily, the sanest voice in all of this has been Boras.

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  19. grant says:

    It’s also surprising that there’s no sanction to MLB for its conduct. Imagine if it was a different employer. If Wal-Mart had a drug testing regime, and purchased stolen documents and paid a drug dealer to support a suspension of employee – how badly would they be castigated? MLB went way beyond what a normal employer would be permitted to do in collecting evidence on a drug program, hard to believe they have no exposure there.

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    • AK7007 says:

      It’s all about public perception. To the general fan, MLB players who juice aren’t people, and don’t deserve any rights whatsoever. They are overpaid, arrogant, cheaters who deserve whatever they get no matter the means.

      Wal-Mart employee? You can empathize.

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      • bobby says:

        its also about resources. protection is needed for those who are unable to protect themselves from abuses and inequities within the system. MLB players, and Arod specifically, have access to some of the best lawyers available (ie. have money) and therefore are able to protect themselves for the most part. Therefore, if there are problems inherent to the system that create false positive, players have the ability to fight and overturn those decision (see Ryan Braun).

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      • Brian Cartwright says:

        @AK7007 – Right. I try to talk about an unfair process and level of punishment with my wife, and she accuses me of not wanting ARod punish. I reply that I’m only for rule of law – if he’s guilty, then absolutely penalize him, but only for what has been previously agreed upon.

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      • chuckb says:

        Public perception and an anti-trust exemption. MLB can do whatever it wants.

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  20. crapshoot says:

    I’m curious where the 12 games for obstruction comes from. Seems like a slap on the wrist for what MLB is accusing him of doing.

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  21. TKDC says:

    Bud Selig apparently believes the Yankees won the World Series in 2010? Probably time to retire. Also, what are the odds that the letter was handwritten? Pretty high, right?

    Still, I see nothing wrong with what MLB did here.

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  22. John Racanelli says:

    So if I understand this decision correctly, Rodriguez can serve out this suspension and return to play major league baseball in 2015 if he so chooses.

    If he tests positive for PEDs after his return, however, the commissioner can then decide whether to stack 100 game suspensions (because this the second time he was “busted”) if they can prove multiple violations or can again threaten with a lifetime ban if they can prove multiple violations since the date of this arbitration decision.

    This seems like a pretty liberal, but justifiable, interpretation of the disciplinary language in Section 7.A of the JDA as written so it seems unlikely that the court will disturb the arbitrators’ decision.

    Keeping in mind the commissioner’s catch-all “best interests of baseball” powers, Selig appears to have all the authority he needs to make Rodriguez an example for the rest of the league.

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    • Jason B says:

      “If he tests positive for PEDs after his return, however, the commissioner can then decide whether to stack 100 game suspensions…”

      Obviously this case tends to show that regardless of the collectively bargained punishment framework, the number of games can be moved about with a whim, or pulled out of thin air. If he comes back and tests positive (or some dude says he sold him some drugs one time), MLB can levy a 26-game suspension. Or 79-game. Or 422-game. Or 1,013-game. Or, or, or…

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      • Hank says:

        The stacking of suspensions was for a non-analytic result (no failed drug test).

        If he tests positive for PEDS he falls under the 50/100/lifetime penalties. I don’t know how MLB classifies this current suspension(1st offense? 2 offenses with the impeding the investigation part?)

        You can’t prove multiple violations with a failed test; this is why the precedent this decision sets is nowhere near as dangerous and troubling as some folks are trying to make it sound.

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  23. Sola says:

    Didn’t Melky also deceive and impede investigations with a fake website?

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    • Wil says:

      That was his agent. MLB couldn’t prove Melky had anything to do with it.

      Vote -1 Vote +1

      • murphym45 says:

        Did A-Rod personally impede the investigation? Wasn’t everything done by his “associates”?

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        • AK7007 says:

          I don’t think MLB would be able to prove that A-rod personally did anything either, but the 60 minutes interview made it sound like was entirely A-rod’s “associates.” (still can’t believe they called A-rod’s people that the whole interview) Since Bosch was their entire case, it was probably enough for them.

          It’s called a double standard. “This guy has been pissing in our eye for years, let’s really screw him over.” vs “This guy is so stupid that he can’t even cover it up properly.”

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      • Roger says:

        Actually, no, they weren’t able to stick it to the agent. An assistant took the fall.

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    • Hank says:

      The reason he didn’t get busted for this was that they found out about it BEFORE he tried to use it.

      So the incompetency of his people meant he never had a chance to actually impede or deceive.

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  24. walt526 says:

    What I’m curious about is what happens if Rodriguez reports to spring training and then gets hurt before the season starts? My understanding of the CBA is that in the event of injury is that the 162 game suspension would be deferred if he were physically unable to play. Furthermore, the guarantee of money to be paid while a player is injured is possibly the strongest part of the CBA.

    Rodriguez’s hip condition was thought to potentially (likely) be career-ending a year ago. So what happens if he shows up to spring training, “aggravates” the hip injury, and files a grievance to be placed on the DL before the season starts if he can get a doctor to declare that he’s physically unable to play?

    If it’s established to be a career-ending injury, Rodriguez gets to collect the full balance of his contract (with insurance picking up a portion), but the Yankees get stuck with the full payroll hit for luxury tax purposes in 2014 and subsequent seasons. Rodriguez never serves the suspension and he gets paid.

    I know that it sounds far-fetched, but this whole thing has been crazy and why else would Rodriguez insist on reporting to spring training in a few weeks? If Rodriguez reports and then gets hurt, then he has a chance to collect the $25M for 2014 in addition to the $60M afterwards AND he gets to screw over the Yankees and embarrass MLB.

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    • walt526 says:

      BTW, Braun essentially served his suspension concurrent with his DL stint, but I believe that was something that was negotiated (and why the suspension cost him 65 games rather than just the standard 50).

      Vote -1 Vote +1

    • AK7007 says:

      After the way that MLB has behaved, I almost want this to happen.

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  25. Wendy Thurm says:

    You guys caught me. I am biased. I’m biased in favor of fairness and due process. Kinda been my thing for a while.

    +16 Vote -1 Vote +1

    • AHA! says:

      I KNEW IT!

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    • Catoblepas says:

      ahahaha
      normally I start gagging when I get more than 50 comments in but this makes me glad I scrolled all the way down

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    • Bounty says:

      But he completely ignores the second part of the section: a player who otherwise violates the Program through the possession or use of a Performance Enhancing Substance will be subject to the 50-100-lifetime regime

      (Bounty’s emphasis)

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    • Belloc says:

      Come on. Surely you know that the due process clause does not apply to private arbitration hearings. So why even bring it up?

      But let’s go down the rabbit hole for the sake of argument, and apply constitutional guarantees to A-Rod’s hearing. He was given notice of his hearing. He was given an opportunity to be heard at the hearing. He was afforded a meaningful opportunity to challenge the evidence against him. He was even given the right to counsel, which the Constitution does not guarantee at a statutory arbitration hearing.

      So, Wendy, what substantial right was A-Rod denied?

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      • waynetolleson says:

        “So, Wendy, what substantial right was A-Rod denied?”

        Exactly. The poor man. What kind of country do we live in where a man can knowingly cheat for the express reason of setting records and defrauding fans and employers alike, and after a year of an appeals process with the benefit of a 40-man roster of $750/hour lawyers on top of representation from the MLBPA, an arbiter upholds a suspension in a process that the players had agreed upon?

        I mean, really! It’s such an injustice. Just knowing that if I lie and cheat and steal, I might get caught and have to pay a penalty?

        That’s just so grossly unfair! Gosh. What does A-Rod have left now? How will this man possibly survive with only twelve houses and $300 million to fall back on?

        We might as well be living in North Korea!

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    • waynetolleson says:

      “You guys caught me. I am biased. I’m biased in favor of fairness and due process. Kinda been my thing for a while.”

      Give us a break. You lawyers are sophists. If Bud Selig paid you more money than Fangraphs, you would write a brief demonstrating why A-Rod deserves a lifetime ban.

      Of course, you’re just doing your job, which is to use fancy speech and sophistry to avoid the actual issue. The actual issue is that while A-Rod was telling league officials, employers, and fans that he was clean, A-Rod had already tested positive for PED’s. It’s also very obvious from his numbers that A-Rod was always on steroids.

      And due process? Are you serious? If a normal person falsified his resume and lied to his employer, that person would be out of a job and on his ass, and nobody would care. A-Rod had every single luxury. He used steroids, allowing him to put-up fraudulent numbers. He misrepresented his abilities by using steroids and denying such, which means he negotiated a half-billion dollars of contracts in bad faith.

      You know this, of course. But right now, you’re doing your job, which is to make the best case for your imaginary client. Maybe you have some of the simpletons and contrarians fooled here, but you certainly don’t fool anyone with a brain or any sense of ethics.

      A-Rod got every single, last possible chance. He had every opportunity anyone in this country could ever ask for. A-Rod DID THIS TO HIMSELF by cheating repeatedly, and by lying about it, repeatedly.

      It’s really that simple. Of course, you lawyers are paid to confuse people with your fancy words. But you don’t fool me.

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  26. murphym45 says:

    I think that one of the big issues here is this:
    There is a significant risk to using banned substances. In the JDA, the penalty is supposed to be 50 games for the first offense. Therefore, when a player decides that the potential benefit from PEDs, they are basing that decision on the maximum risk being a 50-game suspension (as long as they have never been caught before). The problem is that a punishment is clearly outlined, and then the MLB / arbitrator decide that it doesn’t apply so they get to decide their own arbitrary punishment.
    You can argue that if the MLB had done their job properly, ARod would have been suspended for 50 games a few years back, and then wouldn’t have risked a more serious suspension. Plus this establishes a gray area for what constitues an individual offense, which is troubling.

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  27. AK7007 says:

    The more that I read comments about the arbitration decision, the more and more I realize that people who are saying “he got what he deserved” or otherwise supporting MLB are also grossly in favor of the plea bargaining process that led the majority of the Biogenesis players to take a first time offender penalty for their prolonged use, but applied a longer penalty for Rodriguez’s. While it is institutionalized in our country to participate in this kind of bargaining during criminal investigations, often it ends up being little more than blackmail. There have been numerous cases and examples where innocent suspects are bullied by prosecutors or advised by their council that their best course of action is to take a plea deal, because going to trial would be much more damaging.

    However, there is a large school of thought that says plea bargaining is wrong, that it simply provides incentives to admit guilt regardless of actual guilt. If our goal is to rid the game of steroid users, then we should disallow plea bargaining and actually assess what players did, punish them accordingly, with defined penalties for drug use. If our goal is to publicly lynch the occasional scapegoat, to look “tough on drugs,” then MLB is doing a wonderful job.

    +7 Vote -1 Vote +1

    • chuckb says:

      Thiis was exactly MLB’s goal here. If Peralta and the others had fouht their suspensions, it would have been much more difficult to stick ARod with an absurdly long suspension.

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  28. Bob says:

    ARod doesn’t test positive for PES so 7a doesn’t apply which requires a positive test.
    7G2 then applies because of PES use and 7a-7f don’t apply. Werner, Selig, and ARod agree.
    7G2 doesn’t have a set penalty and is up to the commissioner.
    Selig chooses 211 games.
    ARod is found guilty of multiple uses of PES.
    Arbitrator thinks 211 is too much, decides on one season.
    Seems perfectly reasonable.

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    • Alex says:

      Except for the part where 7.A explicitly states there can be violations under that section for use and possession without a positive test.

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      • Brian Cartwright says:

        But Selig threatened Rodriguez that if 7.A was used, he’d be charged with three offenses the first time around and be subject to a lifetime ban.

        I’m not a lawyer (that’s why I rely on Wendy and others) but to me a clear reading says “The first time we catch you, by testing or otherwise, it’s 50 games. Second time caught, 100 games. Third time caught, lifetime”. Rodriguez was accused of using multiple drugs over several seasons, but it was only the first time he had been disciplined.

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        • Alex says:

          I agree that’s what happened, but the point of this article and my comment is that 7.G.2 seems to specifically forbid these parties from agreeing to ignore the scheme under 7.A for use and possession of PEDs. The league and the arbitrator could have followed the JDA and still gotten to 162 games if they wanted: 50 under 7.A for his first violation and 112 under the CBA for obstruction. Even if they said there were only two specific violations under 7.A here it would have made more sense to give 150 under that section and 12 under the CBA. Using 7.G.2 to get the exact number they wanted was the least logical route and could have consequences in future cases where a player gets caught but did not test positive.

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  29. Richie says:

    There is a ‘Lefty Bizarro World’ in which, if something is in a worker’s best interest – such as a safe, testicle non-shrinking work environment – yet the employer also wants it, then the workers properly work against it till management grants additional concessions. This is so as to make up for how ‘The MAN!’ screws us at every opportunity. Workers who don’t see this – such as Frank Thomas 10 years back and the solid majority of MLBPA members today – are suffering from ‘false consciousness’, and badly need the guidance of the more enlightened.

    This perspective really, really sucks.

    (in ‘Righty Bizarro World’, in gratitude for creating our jobs for us we forgive management people all their taxes)

    -5 Vote -1 Vote +1

    • Richie says:

      Oh, and an independent arbitrator has ruled and soon a court of law will rule that MLB did follow the properly-laid-out procedure. But none of that means a thing to some of you people, does it?

      Bye.

      -5 Vote -1 Vote +1

    • Tim says:

      Getting the other party to give you concessions in return for something you already want is also known as “skillful negotiating.”

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  30. waynetolleson says:

    For all the great analysis on this site, there’s a fair amount of BS. Wendy Thurm and Dave Cameron have really been hitting y’all over the head with a not-insignificant amount of BS lately.

    Of course, who’s better at confusing people – and the issue – than lawyers and statisticians, right? In their duplicity and sophistry, Cameron and Thurm both COMPLETELY GLOSS-OVER THE CENTRAL ISSUE.

    The central issue here is that A-Rod DEFINITELY USED STEROIDS FOR YEARS. A-Rod used steroids AFTER IT WAS COMPLETELY CLEAR STEROIDS WERE NOT ALLOWED IN BASEBALL.

    A-Rod was interviewed by MLB repeatedly about his connections to PED’s, and A-Rod LIED TO THE LEAGUE. He had already used steroids for a decade when he opted-out of his first megacontract he’d fraudulently negotiated with Texas. The league had already questioned A-Rod about steroids in 2005. They questioned him again in 2007, and again in 2009, when A-Rod was connected to Canadian steroid provider Dr. Tony Gallea.

    A-Rod has been cheating for a good dozen years, lying about it to league officials and to his employers, and just rubbing it in their faces.

    If we were talking about a normal individual engaging in this level of fraud and duplicity, that individual would have lost his job a long time ago.

    What planet are people living on? How is it possibly OK that a guy can just cheat and lie and steal the way A-Rod has, and people act like it’s some kind of injustice that he forfeit a year of playing when he’s useless as a player anyways?

    Why are you guys defending A-Rod? There’s nothing worth defending here. A-Rod is a loser through-and-through. I kinda caught-on to that around December, 2000. What’s taking the rest of you so long?

    -11 Vote -1 Vote +1

    • AK7007 says:

      Nobody is defending A-Rod. People are disgusted at the level MLB sunk to in order to penalize him after years of profiting off of his chemically enhanced performance. (You alluded to this concept with the whole “would have lost his job” bit – look at how the cheating, lying people on Wall Street made out – he’s actually getting a much harsher punishment than “normal people”) People are also disgusted at the ugly slug that A-Rod is. We can be both. We can also separate ourselves from the person and guilt in question to analyze the horrible process that was used in punishing said person. Ends not justifying means and all that.

      Also, STOP USING ALL CAPS ASSHOLE!

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      • harry says:

        AK7007

        but the “horrible process” used is the process thats laid out in the CBA and JDA. What was so horrible about it? Its laid out very simply in the section 7.G.2 that Wendy quotes in the article. If the Commissioner has just cause, and according the arbitor he did, then the Commissioner is free to hand down whatever punishment he wants. The player can appeal the commish’s decision, like Arod did. The arbiter then ruled that the commish was within his rights to punish Arod. Is your problem with the evidence against Arod? bc it seems the MLB followed the exact process the CBA instructs it to.

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        • AK7007 says:

          The horrible process was to weasel out of the understanding that first time offenses were for 50 games. The language of the CBA was not ironclad, and resulted in this situation where a player is punished more harshly than had they failed a test.

          So I guess then, the problem I have is that this establishes the CBA as “drug users are punished in accordance with Bud’s gut.”

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        • harry says:

          ok i see what you mean. I guess I am of the opinion that what Arod did was worse than just failing a single test and therefore an increased punishment is justifiable.

          I agree with you that for most PED cases, the 50-100-life schedule should be sufficient and the commish should not be able to hand out suspensions on a whim. But both the CBA and JDA were agreed upon by the MLB and the MLBPA. So they both agreed to having clause 7.G.2 which basically gives the commish carte blanche, when just cause exists. I dont like that the commish has this power, but the JDA grants him the power so he is within his rights to use it.

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        • Alex says:

          “If the Commissioner has just cause, and according the arbitor he did, then the Commissioner is free to hand down whatever punishment he wants.”

          Unless of course that punishment is implemented under 7.G and relates to a violation covered under 7.A which it does in this case.

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      • waynetolleson says:

        “Also, STOP USING ALL CAPS ASSHOLE!”

        I apologize. I mean, I think you’re a stupid dumb-fuck, and I’m impressed you could type that message with your head stuck so far up your ass, but I’ll avoid typing with Caps Lock, because I wouldn’t want to damage either of your remaining brain cells.

        “People are disgusted at the level MLB sunk to in order to penalize him…”

        As people like you clearly illustrate, a lot of people are really fucking stupid. Alex Rodriguez cheated and lied his entire career. When it became clear he was cheating and lying, Alex Rodriguez went to extraordinary lengths to obstruct a MLB investigation.

        MLB had to take the actions it took because, as we see, Alex Rodriguez really is that big of a cheater, really is that much of an asshole and a narcissist.

        But I see you’re a pretty useless fucking asshole, yourself, so I can see why an unrepentant douchebag like Alex Rodriguez would appeal to you.

        Fuck you, dipshit.

        -12 Vote -1 Vote +1

        • eayres33 says:

          First, you stay classy Waynetolleson

          Second, you should reread the post, this isn’t about a-rod, this is about due process.

          His head isn’t up his ***, this is a contract. It has rules and guidlelines that AK thinks were violated. You don’t agree that’s fine but some how making this about A-Rod and that he’s a bad guy instead of looking at what is really happening is putting your head in the sand.

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        • waynetolleson says:

          “First, you stay classy Waynetolleson.”

          No. I’m not going to be classy with someone who’s a complete tool. Respect is a two-way street. At least we know where we stand with each other. That guy can go fuck himself. Next…

          “His head isn’t up his ***, this is a contract.”

          Yes. Part of that contract entails you can’t cheat. A-Rod cheated. A-Rod violated his contract, a contract that was fraudulent because it was negotiated in bad faith.

          Remember, A-Rod’s argument was that he deserved that money because he was going to break all of these records. But A-Rod already knew he had tested positive for steroids back in 2003. So, even without Dr. Gallea or Biogenesis, A-Rod’s records wouldn’t have been records at all. They would have been meaningless.

          I can’t believe how ridiculous some of you are. You’re acting as though a guy who cheated and lied his way to a half-billion dollars worth of contracts and all of these awards is somehow the victim.

          A-Rod is not the victim. A-Rod is a drug user and trafficker. If you want to spend your time shedding tears, that’s your prerogative. I’m content to let A-Rod go cry on the shoulder of Joe Tacopina and the rest of his legal team.

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        • harry says:

          dude calm down.

          also, I believe the contract that eyres33 was referring to is the JDA and CBA which govern the rules of how the MLB handles PED cases, not Arod’s contract with the yanks.

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      • chuckb says:

        Mark Twain once said, “Never argue with stupid people. They will drag you down to their level and then beat you with experience.”

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    • NS says:

      “not-insignificant”

      I wonder if there’s a word for this.

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  31. Philip Christy says:

    I feel like half the commenters here just hate ARod and didn’t even read the article. I’m pretty sure NO ONE likes ARod, but that is not what this article is about.

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    • waynetolleson says:

      “I’m pretty sure NO ONE likes ARod, but that is not what this article is about.”

      This article is about this website showing everybody what a bunch of smartypants they are. It’s about turning things upside-down so the authors can say, “See how much smarter we are than everybody?”

      That’s what I got from this article.

      Wendy Thurm: “Look at me! I’m a LAWYER and I’ve studied some statistics. Therefore, I can take a position that’s completely ridiculous and make it seem plausible. I’m so smart!”

      That’s what I get from half the writers here.

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  32. Word says:

    My takeaway from this piece is that MLB is saying, and setting a precedent, to invalidate its own collectively bargained agreement, by supposing that:

    (1) its own testing mechanisms are insufficient, therefore
    (2) players who have not tested positive can be punished under the agreement, but
    (3) players can be immediately banned under the three-strikes policy even if they have not been previously sanctioned.

    I think that misrepresents the terms MLBPA agreed to, and letting it slide because no one likes ARod sets a dangerous precedent.

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    • bummer says:

      I think the way this website is set up, it may be difficult for some to read all of the posts that clarify things.

      Here’s my take. They opted for 7G2, because 7A had 3 “fixed” ban periods of 50-100-lifetime.

      Since they found A-Rod guilty of 3 violations over a period of 3 years, they preferred a ban period between 100 games and lifetime. This is why Selig said 162 games was fair (inferring he was lucky it wasn’t lifetime).

      Thus the 50 + 50 + 50 for the 3 violations, and then the 12 for obstruction. The arbitrator states that the multiple penalties for multiple offenses was established in the N. Perez case and confirmed in the JDA.

      The 50 games per violation came from 7A, which he said provided the structure (# games per violation).

      One of the comical aspects to this is when busted players are interviewed, most of them say they only used it once or for one injury.

      So if that’s true they have nothing to worry about, as far as multiple penalties. LOL

      A-Rod’s mob lawyer is taking him for a long ride on his dime. A-Rod has believed that he has a chance to get off, while incurring a monthly bill of about $1M. Not that I feel sorry for him.

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  33. Hank says:

    This seem to boil down to whether you view ARod’s use of PEDs from 2010-2012 as a single violation of MLB’s PED policy or a multiple violation.

    So here are a couple of hypotheticals (yeah I know these can be dangerous)
    1) Mlb finds out ARod used PEDs in 2010 and they suspend him 50 games. A year later they discover evidence that he also used in 2011. Another suspension? Or is all previous PED use now ‘grandfathered’.

    2) What if MLB found out he also used PED’s from a different clinic in 2011? (and this was part of the current investigation) Is that a separate violation?

    3) What if MLB found out about this different clinic a year from now?

    Does it matter if they uncover the information all at once? If they uncovered it piecemeal and the suspensions happened along the way would people see each as a violation and worthy of it’s own suspension? And what constitutes a ‘different’ infraction? Another clinic? Another drug? A different year?

    Reasonable people can disagree, but I don’t see how 3 years of PED use being viewed as multiple violations of the MLB PED policy as extreme and absurd as people are painting it as. Just because ARod happened to use the same supplier and MLB uncovered it all at once, he gets it all lumped together into a single offense?

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    • Belloc says:

      Correct. And the defenders of A-Rod are conveniently ignoring his egregious conduct. He didn’t just use PEDs. He spent a small fortune to game the very agreement he was bound by. He paid a two-bit drug dealer posing as a scientist to fashion a drug protocol designed to avoid detection by the very agreement he was bound by.

      But he didn’t stop there. When the shit hit the fan, he paid a lawyer to buy off a drug dealer for the purpose of hiding evidence from an active investigation by MLB. And when that wasn’t sufficient, he paid the same lawyer to extort another member of the bar, with the intent to hide more evidence from MLB.

      And then Rodriguez lied multiple times to MLB, again with the intent to hinder their investigation.

      Instead of suing MLB and his own union, Alex Rodriguez should be thanking them. In fact, Alex Rodriguez should name Bud Selig the sole heir to his estate. Because what Alex Rodriguez did was every bit as bad for baseball, if not worse, than what Pete Rose did. Anything short of a lifetime ban is lenient.

      Bud Selig proved once again that when faced with conflict, he will usually choose the path of least resistance. He showed Rodriguez mercy when he deserved none. Bowie Kuhn, Peter Ueberroth, Bart Giamatti and Fay Vincent would have banned Alex Rodriguez for life without blenching.

      The head of the Player’s Union, one of the brightest labor lawyers of his generation, understood that Alex Rodriguez’s misconduct took him out of the penalties prescribed in the JDA, and exposed him to a lifetime ban. And yet, although he knew he had the blessing of the Union, Selig still imposed a lesser penalty.

      There will be no backlash by the Union on this one. No one will rally around Alex Rodriguez, any more than the NFL Player’s Union rallied around Rae Carruth or Aaron Hernandez. Some people have it coming.

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      • AK7007 says:

        Is there any way that we can stop calling this “defending A-Rod.” Or even divorce the guy from the discussion of what should be done about PED players and the current state of the CBA.

        Because, it seems like there are a fair number of commenters that seem unable to grasp the concept that disagreeing with MLB’s handling of the situation does not equate to support for Alex Rodriguez.

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      • noseeum says:

        @belloc, yes he did all of those things, And you know how much he got punished for them? 12 games. Now that the report is out, you cannot use his behavior,,other than using, as justification for the lengthy punishment. The arbitrator gave him 150 games for using and 12 games for obstruction.

        “My punishment makes no sense, but if I used logic I’d ban you for life, so just take my punishment.” That’s not absurd? Either ban him for life or don’t. But you better have a logical argument for whatever the heck you’re doing.

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    • AK7007 says:

      I guess it depends on the purpose of the punishment.

      If it is entirely for retributive purposes, then the separate violations viewpoint makes sense. All the punishment is intended to do in that case is to get revenge on the player in question for bringing bad publicity to the game. It doesn’t matter what effect it has on the player’s future behavior.

      Is the purpose to have some sort of deterrence, education, or rehabilitation occur for the player in question? Well, then continually dinging them for infractions further back than the most recent one is ineffective.

      So Hank, I’d say it boils down even further than the single vs multiple violation issue, and gets at a deeper disagreement between a progressive desire for punishment to have positive outcomes (i.e., getting PED players to change their ways and go on to succeed without them) or an old-school desire for punishment to, in immortal words of Ken Burns make “those motherfuckers suffer.”

      I don’t think reasonable people want “those motherfuckers to suffer,” and just see that first violation as our first opportunity to make an attempt at education and rehabilitation. They hadn’t seen the detrimental effects of their use prior, and had only experienced good things as a result of their drug use.

      And that’s all separate from the double standard they had in their punishment of one monumental asshole of a player as compared to all the others who were also doping in an “intentional, continuous, and prolonged” manner. Either you have to treat all of their cases as “intentional, continuous, and prolonged” and deserving of massive retribution/revenge stacking a jillion suspensions on top of one another, or admit that maybe, just maybe, the purpose of those suspensions was perverted in order to lynch an especially unlikeable weasel.

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      • Paul C. says:

        AK7007, I already addressed your points above, but you style yourself as defending “due process” and for the deterrence aspect of criminal justice (as opposed to just the retributive), so I will go back to it. Why should MLB be limited to testing evidence and no other evidence? Why shouldn’t the offender be punished for his conduct, even if a whistleblower-type case presents a risk of greater punishment (because there could be multiple instances of PED use)? The testing regime is just the most regular way to gather evidence of wrongdoing, it’s not the only way — and it was never contemplated by the parties as being the only way, as is evident by the plain text of the JDA.

        Having your trainer or supplier turn on you is one of the risks of proceeding with prohibited PED use, just like testing positive is a risk. And in that lies the deterrent. Assuming the whistleblower presents sufficient credible evidence, multiple offenses are multiple offenses. I don’t hear you arguing that there is too much of a risk of unreliable evidence if you allow non-testing evidence, which is a valid concern, but one that the entire arbitration-review scheme is in place to address. (At this point some of you will say, well, having an arbitration process is pointless, because the arbitrator is already in the bag for MLB; for those of you in that camp, well, there’s nothing I can say to persuade you, as you have reached your conclusion already and are arguing backwards into it.)

        As I said above, if there is clear and convincing evidence of multiple offenses with different PEDs on different occasions, the player should be punished for each, whether in accordance with the 7.A schedule or under a just cause standard reviewable by the arbitrator. This does represent due process and is consistent with the CBA/JDA negotiated by the parties.

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      • Hank says:

        Please stop repeating this double standard nonsense – you don’t have the first damn clue what evidence MLB has on the other players because that info is not public.

        It’s only a double standard if they had the similar evidence as they did against AROd and we simply don’t know that. Did the other players use 3 different PEDs? Use for 3 years? Were there multiple occasions in the ledger of them purchasing PEDs or just one? (if it was only one how can you prove it was prolonged continuous use? All you can do is speculate it) Were there 1000s of text messages? emails?

        Can you point me to the information that you based this “double standard” off of?

        If you think ARod’s trangression is actually multiple violations of the policy, the punishment is not absurd. I get that you are emotionally invested in this from all the swearing and misinformation you post, but folks having the opinion that what ARod did is multiple violations of the drug policy are not “lynching him” or “hating on him” or making the suspension based on his personality, they just see this as more than one single violation.

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        • noseeum says:

          See my post below. If you think he has three violations, the 150 games is PRECISELY the thing that is absurd. He should be banned for life if there are three.

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  34. pft says:

    I can’t believe Arods team will not be filing for a preliminary injunction, or is delaying it. In fact, if the Yankees sign Tanaka as a result of the Arod suspension, it would be a compelling reason not to grant a preliminary injunction.

    I suspect they have a good reason for the delay, just not sure what it is.

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  35. noseeum says:

    Couple of points:
    -those of you supporting the argument that since Arod did not fail a test, the specified penalties don’t apply, have you really thought this through? First off, the arbitrator doesn’t agree with you, although he claims the right to. He opted to stick with the framework as a guideline in his ruling. Second, are you saying that if Arod failed a test in 2013 he should have only been punished for 50 games? So if there was MORE evidence the punishment should be reduced? As Wendy said, that is absurd.

    -Regarding the obstruction related penalties, some above, and I myself before the ruling was released, argued or assumed that the punishment length was due to his obstruction, not his usage. Well, this turned out to not be the case. Arod got 150 games for three separate first offenses (WTF?) and 12 games for obstruction. The arbitrator, and Selig in his letter, both used the same argument: “if we used the rules we could apply your behavior as 3 separate instances and ban you for life. Instead we’re going to use the rules in a completely illogical and unfounded way and tell you you better accept it because it’s less than a lifetime ban.” Again, as Wendy said, this is absurd.

    I don’t care what you think of Arod. Either the rules as agreed to apply or they don’t. If the arbitrator said, “Arod gets 50 games for his usage and 112 games for obstruction,” I would say that’s a fair punishment. But he didn’t do that. He came up with three first time offenses. There is no such thing in the agreement. If you think there are three offenses, ban him for life. If you think there is one, ban him for 50 games and add games for his behavior as you did with Braun. Even say, 50 for using, 15 for your behavior (to match Braun) and 97 for what a farce you made of this whole process and the harm you caused the game of baseball. Whatever you want. But there is no provision for 3 first time offenses.

    It doesn’t matter what you think of Arod or the resulting punishment. The explanation for the punishment has no basis in the agreement. The explanation is relevant and deserves criticism.

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  36. PackBob says:

    Seems like the JDA attempts to define all PED use and resulting penalty into a too simplistic framework. When everything won’t fit in the box, grab what won’t fit and put it elsewhere. The 50-100-lifetime penalties are not for using, they are for being dumb enough, apparently, to get caught.

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  37. Mark says:

    So Wendy states she is biased in favor of fairness and due process and is promptly up voted. Fact is, this language and these rights were bargained for by the parties. Her notions of what is fair and just have nothing to do with it. She wasn’t in the room and won’t be. She has an opinion, which seems to be colored by criminal law notions, and is applying them in the wrong setting. If the parties to the agreement want to change the language in the future, they will. Right now, the language supports the decision, despite any caterwauling about how ” absurd” it is based on her notions.

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  38. Sadwick says:

    I’m hoping this is the last reply posted, because I see this going nowhere fast. There are two camps here:

    One camp sees Wendy as calling out the arbitrator’s decision as absurd. The argument here is that A-Rod deserves the suspension based on his past record of cheating and trying to circumvent the process. I agree, he deserves everything he got and then some. I do not know all of the evidence, but no one needs all of it to see that he was clearly guilty. A lifetime ban would be completely understandable.

    The other camp sees Wendy as calling out the arbitrator’s logic for justifying the suspension, not the suspension itself or its length, as absurd. The argument here is that the framework for punishment outside of positive tests is nebulous at best and this decision could set a precedent for future abuse, not necessarily that the current decision is abuse or unfair. Again, I agree. Precedent is important in arbitration rulings and this could, but probably will not, lead to abuse of the system where spurious logic can justify arbitrary punishments.

    The best option in my mind here is to just leave off any more comments. When there is a fundamental difference of interpretation that no one cares to reconcile arguments go nowhere and dialogue becomes impossible. I was extremely disappointed in the comments for this article. I am used to finding better dialogue and at least good attempts at debate, and while there was certainly some to be found there was far more spite, vitriol, and ranting. I suppose I shouldn’t expect too much from internet comment sections, regardless of topic or past quality.

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    • noseeum says:

      Shorter @Sadwick: “It’s only fair that I get the last word!” LOL.

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      • Sadwick says:

        Honestly, I don’t really care about the last word, I’m just tired of coming to one of the few places I look for good discussions and finding none. Between this and the HOF nonsense its been an annoying two weeks. Though I suppose it’s somewhat unavoidable during the quietest part of the offseason.

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  39. dls says:

    Wendy, regarding your question re: application of the second part of 7.A:

    “But he completely ignores the second part of the section: a player who otherwise violates the Program through the possession or use of a Performance Enhancing Substance will be subject to the 50-100-lifetime regime (my emphasis). What does that language mean if it doesn’t apply to players found to have used or possessed PEDs absent a positive drug test?”

    I believe the arbitrator again is trying to state that the otherwise violation by use or possession of _a_ (single) PES is handle by 7.A. (absent a positive test)

    But this was otherwise violation by use and possession of MULTIPLE PES’s… (absent a positive test) and therefore this case would come under 7.G.2 instead.

    Granted, its a small point, but I think that is the distinction.

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  40. GymePoggle says:

    After reading the arbitrator’s decision and the JDA, I can completely understand his interpretation. We don’t have the benefit of knowing the results of the tests that have resulted in suspensions, but the arbitrator did. The “separate use are subject so separate discipline” is interpreted to refer to the same substance, not substances of the same JDA category.

    People keep saying that this decision gives Bud the ability to suspend PED abusers in anyway he sees fit, with some even suggesting that appealing is grounds for a greater punishment, but I don’t see it that way. This interpretation makes it so that abusers using a combination of different banned substances in the same JDA category can receive a separate punishment for each, but it establishes that each substance is not treated as separate violations. Furthermore, it seems to imply that each substance follows its own violation string, get caught with the same PED 3 times and get banned, but use a different one each time and get a 50 game suspension each time.

    The other individuals linked to Biogenesis were likely on a similar combinations of PEDs and no doubt that Bud threatened them with stiffer penalties if they decided to fight the charges and based on the arbitrator’s interpretation, they made a wise move. Arod was given a similar option, but he refused to take it, which turned out to be a mistake. Arod also made the mistake of treating the arbitration process as a criminal trial where one is declared guilty or not guilty.

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  41. xoot says:

    The JDA needs revision, no doubt. But even as is, the two separate terms probably allow for the sort of distinction the arbitrator made.

    You can interpret 7.A to require conclusive proof of one use–positive test, possession, other proof of one use. That’s enough to trigger the 50-100-lifetime scheme. (Does that mean some guys are juicing extravagantly, but only get caught sporadically? Maybe. But the system’s far from perfect.)

    7.G.2, however, pivots on the “just cause” term. The JDA doesn’t clearly explain the limits to 7.A (which in turn would clarify the applicability of 7.G.2), but the differences in the intents behind the two terms seems pretty clear. When a player’s involvement in violations of section 2 are so extensive, unusual or pervasive, just cause will determine the length of the punishment. That’s what occurred here, and it makes sense overall–despite the flaws in the JDA terms.

    Wendy Thurm’s piece was excellent. But I agree with others who object to the “absured legal result” conclusion. The interpretation of the JDA that supports the decision is not absurd, imo. Imposing a life-time ban under 7.A would’ve been.

    But the JDA sure does need some clarifying revisions to determine how 7.A and 7.G.2 work together. I would think the union has an obligation to see that it gets clarified.

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