Jenrry Mejia’s Long-Shot Appeal

Once Major League Baseball announced last month that New York Mets relief pitcher Jenrry Mejia had been permanently suspended from the sport after testing positive for performance enhancing drugs for the third time, it was probably only a matter of time until Mejia threatened to pursue legal action against the league. Even though Mejia can petition commissioner Rob Manfred for reinstatement next year, the earliest that he would be allowed to return to the playing field would be 2018. Considering that Mejia only appeared in seven games last season for the Mets — between serving his initial, 80-game suspension and subsequent, 162-game suspension for PED use — by the time Mejia is potentially eligible to return to action he would have effectively missed the better part of a minimum of three seasons, a difficult absence for anyone to overcome.

So given that, it’s not particularly surprising that Mejia announced last week that he intends to challenge his lifetime suspension. In particular, Mejia claims that officials from MLB threatened him in 2015 following his second positive PED test — results that he insists were inaccurate — allegedly telling him that the league would “find a way to find a third positive” if Mejia appealed his 162-game suspension. Even though Mejia did not appeal that second suspension, he is nevertheless now accusing MLB of conspiring to drive him from the game.

Moreover, Mejia’s attorney, Vincent White, went one step further on Friday, announcing that he’d spoken to a witness who claims that MLB has previously hired third party contractors to hack into players’ social-media accounts in order to look for evidence linking the players to PEDs. (MLB has, not surprisingly, officially denied all of these accusations.)

Unfortunately for Mejia, despite the attention-grabbing nature of these allegations, his odds of successfully overturning his permanent suspension appear to be pretty slim.

Before Mejia can challenge his lifetime suspension in court, he’ll first need to formally appeal his punishment under MLB’s Joint Drug Agreement, which assures players the right to appeal any PED-related suspension to a neutral arbitrator. Assuming that Mejia does in fact file such an appeal, the arbitrator will then schedule a hearing within a few weeks’ time to determine whether Mejia’s punishment was justified.

During the hearing, MLB will have to prove to the arbitrator both (a) that Mejia tested positive for a PED and (b) that all of the proper collection and testing protocols were followed. Meanwhile, Mejia will receive the opportunity to discredit the test results during the hearing.

Importantly, although Mejia’s attorney has made several public statements accusing MLB of paying witnesses to testify against players and hacking into players’ online accounts to look for proof of PED use, evidence of this sort is unlikely to be of much use to Mejia in his appeal. Unlike the suspensions that arose out of the Biogenesis scandal, for instance — in which MLB relied on other evidence to suspend players who had not actually tested positive for any PED — Mejia’s lifetime suspension was based on a positive drug test.

As a result, unlike in the Biogenesis cases, Mejia’s guilt or innocence does not hinge on the reliability of documents or testimony provided by third party witnesses. Instead, Mejia must convince the arbitrator that his positive test result is somehow unreliable.

Given this, and based on his public statements to date, it appears that Mejia will likely argue that MLB manipulated the results of his test after his urine specimen was collected. Needless to say, this will be an extremely difficult argument to win. Because MLB’s drug-testing program is conducted by an independent administrator, Mejia presumably will have to argue that MLB either found a way to taint his test specimen without the administrator’s knowledge, or else conspired with the administrator to falsify Mejia’s results.

Along these lines, Mejia’s most plausible strategy will likely be to focus on any potential gaps in the chain of custody for his test specimen, in order to identify a time period during which his urine sample could have conceivably been tainted. This chain-of-custody argument is the same grounds upon which Ryan Braun famously convinced an arbitrator to overturn a positive PED test result back in 2012.

However, while it’s not inconceivable the independent administrator could have committed a similar blunder again, the odds that the league would allow the mistakes made in the Braun case to be repeated are probably pretty low.

Assuming that Mejia fails to convince the arbitrator that his test results were unreliable, Mejia’s last hope for overturning his suspension will be to challenge the arbitrator’s decision in court. It appears that Mejia is prepared to do just that, with his attorney declaring on Friday, “Either my client gets his livelihood back, or we’ll take this to court.”

Such a strategy would mimic the one famously pursued by Alex Rodriguez back in 2013. As in A-Rod’s case, however, Mejia’s odds of convincing a judge to overturn the arbitrator’s decision would be remote.

Courts are usually extremely reluctant to overturn a decision issued by an arbitrator, typically doing so only in cases where the arbitrator failed to follow the proper procedure or apply the agreed-upon rules. (This was the reason that a federal trial court overturned the National Football League’s four-game suspension of Tom Brady last year in the Deflategate scandal, for instance.)

So in order to prevail in court, Mejia would need to be able to point to some sort of fundamental procedural error that the arbitrator committed when presiding over his appeal. If Mejia were to instead simply argue in court that the arbitrator just misjudged the reliability of his positive test result, then a judge would be highly unlikely to overturn his suspension, as mere disagreement with the substance of the arbitrator’s ruling is almost never grounds for a successful appeal.

Of course, even if Mejia is unable to convince an arbitrator or court to overturn his lifetime suspension under the JDA, it is still possible that he could successfully sue MLB on other grounds. For instance, if Mejia is able to prove that MLB has hired contractors to hack into players’ social-media accounts, as his attorney has alleged, and can show that his own accounts were compromised in this manner, then he could potentially pursue a civil lawsuit against the league under the same federal law that was implicated in the recent hacking scandal involving the St. Louis Cardinals and Houston Astros.

As I noted last June, under the Computer Fraud and Abuse Act, it is illegal to “knowingly … access[] a protected computer without authorization” in order to “obtain[] anything of value.” Therefore, if MLB did hire an investigator to hack into Mejia’s social-media accounts, the league arguably would have acted in violation of the CFAA.

Significantly, however, even if Mejia could prove that the league violated the CFAA, that still would be unlikely to result in his suspension being overturned. Instead, the farthest that a court would likely go in such a case would be to order MLB to pay Mejia monetary damages as compensation for the harm that the unauthorized intrusion inflicted.

All in all then, although it isn’t particularly surprising that Jenrry Mejia would elect to challenge his lifetime suspension, his chances of actually persuading an arbitrator or judge to overturn the punishment appear to be remarkably low.