Should MLB Punish A-Rod Based on News Reports?

As Dave Cameron wrote two days ago, multiple reports have emerged about numerous baseball players connected to a clinic in South Florida that dispensed performance-enhancing drugs and has been nicknamed “BALCO East.”

Of course, as Cameron notes, “Rodriguez is going to get the most attention, because he’s Alex Rodriguez.” The Yankees are reportedly exploring all avenues to void the last five years and $114 million of his contract. But this is an interesting case, because, if they succeed, this would be the first time an active player would be successfully punished based on news reports.

Following the BALCO scandal and the Mitchell report, numerous players were dragged through the mud: Barry Bonds was blackballed at the end of his career, receiving no job offers in 2008 despite having been extraordinarily productive in 2007, and of course, numerous deserving steroid-era players have been held out of the Hall of Fame over the past several years, including Jeff Bagwell and Craig Biggio — to say nothing of Bonds. But no active players have ever been punished for drug use unless they were caught by MLB.

While the Yankees likely cannot unilaterally do anything to void Rodriguez’s contract themselves, they may be able to prevail upon the commissioner’s office for relief, and the commissioner has a fairly broad mandate of discretionary powers. (This is not the first time I’ve written about the league mulling over a punishment for A-Rod.) The players union will undoubtedly fight it tooth-and-nail, but Rodriguez may need to decide just how hard he wants to fight for the right to collect his $114 million as a member of the New York Yankees, as opposed to brokering a quiet peace.

Jeff Passan reports league officials are scrambling to make up for lost time, considering that journalists beat them to the scoop. The league has announced it will interview the implicated players, including Rodriguez, Nelson Cruz, Gio Gonzalez, Melky Cabrera, Bartolo Colon and Yasmani Grandal. (Ken Rosenthal reports that the league will try to gather as much information as possible before interviewing them, considering that the players — especially A-Rod — have not always been forthcoming.) MLB also will attempt to obtain documents that were leaked to The Miami New Times, the alt-weekly that broke the story.

Passan writes:

The newspaper expects to dump an even bigger trove of documents online in the coming days, though MLB would prefer to leave the Miami area with hard copies of the box full of evidence delivered by a former Biogenesis employee.

This is an interesting case touching on the standards of evidence sufficient to punish. Once again, it relates to issues raised in the Ryan Braun PED scandal: what is at issue is not whether the players took banned substances, but the collectively-bargained process for determining how to prove that they did. A blockbuster report in a newspaper clearly isn’t sufficient. MLB is also uncomfortable with viewing electronic facsimiles of original documents.

MLB wants to go to the source — and while that’s admirable and may be possible in this case, it may not be possible in all cases. Reporters often secure information based on a promise that they will protect their sources, and MLB has no subpoena power to force a reporter to fork over the loot. In general, MLB will not be able to rely on news organizations to work as their private detectives. News organizations publish reports; they aren’t in the business of giving away their sources.

There are a couple of other things going on here. First, it is clear that the current punishment schedule — 50 games for the first offense, 100 games for the second — is too weak to deter all players from using. (It is likely that it is enough to deter some players, but it may not be enough to deter as many players as the league would like.) Some, like Matt Holliday in a radio interview, have started arguing that first-time offenders should face a yearlong suspension. But even that would not be enough to deter everyone. After all, Melky Cabrera got a multiyear contract after his steroid suspension. I’m sure that the performance-enhancing drugs were worth his $22 million salary from 2012 to 2014.

The second issue is what will become of MLB’s Department of Investigations, which is doggedly pursuing the case though they’ve been scooped by the media. It was established after the Mitchell Report came out, and it isn’t quite clear just exactly what their role is in the justice process.

It’s clear that the Department was in South Florida and was aware that something was up. “This DOI is PROACTIVE. So, before these suspension, they’ve been investigating S. Florida Wellness clinics,” tweeted MLB Network’s Mike Ferrin, in a conversation with Paul Swydan. “They share their info w/the Feds.”

But they didn’t get the story, because the documents were leaked to the media instead. They’re going to start conducting interviews, but not yet, because they think the players may either lie or stonewall them. Part of their research consists in asking a newspaper to turn over boxes documents that were leaked to them. What, exactly, is the Department of Investigations supposed to do?

Finally, it all comes back to Alex Rodriguez, who has a hip injury and will begin the season on the Disabled List. (No word on whether the hip injury is PED-related.) The Yankees would undoubtedly like nothing better than for Alex Rodriguez to simply go away. However, as Wendy Thurm wrote in December, the insurance on his contract almost certainly covers just a fraction of the total amount left on the contract. They typically only apply for a few years, generally not the full length of the contract; they typically only kick in after a certain period of time, not immediately; they typically only cover a certain portion of the salary; and they do not relieve the team of its luxury tax burden.

As Tom Verducci writes, Commissioner Bud Selig has fairly broad authority to punish Rodriguez:

Under section 7.G.2 of the Joint Drug Agreement, the commissioner can rule for disciplinary action against a player for “just cause” in the cases of violations not specifically referenced in the JDA. Prescriptions and records of PED use and purchase fall under the “just cause” umbrella.

That might work this time. But in the future, the league will need to figure out why its Investigations Unit simply could not put together the story and got beaten by a local alt-weekly with a shaky business model. And it will need to figure out what to do about players who still face a far greater financial incentive to use performance-enhancing drugs than to eschew them. There have already been two BALCOs, one in Northern California and one in South Florida. There will assuredly be a third.

There probably is one already.