Baseball - General

More Braun than Brains (Part 3): Will MLB avoid the nuclear option?

Ed.: Michael Maffie is a graduate student studying Industrial and Labor Relations at Cornell University focusing on the relationship between litigation and Alternative Dispute Resolution. He is also a friend of the Nation, and we are happy to open our front page to him for an exploration of some issues currently facing baseball, and the process involved. This is part two of the series. Read part one here and part two here.

With rumors swirling about the possibility of long PED-related suspensions, Commissioner Bud Selig and MLBPA head, Michael Weiner, held press conferences in New York, just hours before the All-Star Game.

Both dropped bombshells.

In discussing his authority, Selig used the phrase “best interest of baseball” and Weiner said the players involved in the Biogenesis investigation could face “5 to 500 games.”

As I’ve outlined here the past two days, traditionally the Commissioner has suspended players for using PEDs based on positive test results. First time offenders are suspended for 50 days, second time offenders for 100. Three strikes and you’re out.

But recent ESPN reports have indicated the suspensions may be much longer in relation to the Biogenesis scandal. The comments made by Selig and Weiner in the past couple days shed important — and maybe troublesome — light on that possibility.

The “best interest of baseball clause”

Section XI A(1)(b), the “best interest of baseball” clause from the Collective Bargaining Agreement draws heavily from the deal that crowned Judge Kenesaw Mountain Landis the first commissioner of baseball. Following the 1919 Chicago Black Sox scandal, baseball needed a powerful figure to rid the game of gambling and other illegal activity. Landis refused to become the commissioner of baseball unless he was granted virtually total control over the game. So he got that power.

To give you a sense of its breadth, a former Commissioner once asked his attorney what the ‘best interest of baseball’ clause meant. The attorney responded:

“It means anything you want it to mean, Mr. Commissioner”

Commissioners have used the “best interest of baseball” clause liberally since its inception. It was first used to permanently ban the eight players accused of throwing the 1919 World Series. In a demonstration of the clause’s power, Commissioner Landis banned the players before the trial even began – and after a jury acquitted the players – refused to reinstate them under the clause. The clause has been used seventy times in seventy years. It was used to exile Pete Rose, repossess the LA Dodgers, an even force outside lenders to accept the sale of the Texas Rangers. The clause has precedent for suspending players who have used prohibited substances (although not PEDs).

What makes the use of this power so controversial in this circumstance is that while normal PED-related suspensions can be appealed to a neutral arbitrator, like we saw in the Ryan Braun case last year, it is generally believed that the use of the “best interest” power can only be appealed back to the Commissioner himself, effectively undercutting the players’ right to appeal. That’s why Wendy Thurm at FanGraphs referred to it last week as the Nuclear Option.

If Selig chooses to use the “best interest of baseball” clause to enhance the punishments for Braun and Rodriguez, that decision itself can be appealed to the arbitration panel chaired by Horowitz. There is a precedent for this: Commissioner Vincent attempted to ban Yankees Pitcher Steve Howe after he was caught for his seventh drug related offense. An arbitrator overturned his decision.

Is Selig preparing to go nuclear on major league players this week? Maybe not.

Problems with using the clause for PEDs

First of all, Selig might lose if he tries it. Under this scenario, the MLBPA would not appeal specific suspensions, but instead argue that the Joint Drug Agreement should take precedence over the “best interest of baseball” clause.

MLB would confront the fact that they negotiated the Joint Drug Agreement with the players’ union and it contains a specific grievance procedure for PED-related suspensions. Selig would have to explain to an arbitrator why he chose to not use the bilaterally negotiated procedure crafted for this exact type of disagreement. They also chose to not use the “best interest” provision for previous PED related suspensions.

Although the “best interest” clause is broad, when unions and management craft collective bargaining agreements, it is generally assumed the specific provisions act as implicit limitations on the more general contract language. The players and MLB have confronted this issue and designed a specific series of punishments and due process to deal with PEDs in baseball.

Second, given the credibility issues with Tony Bosch as the chief witness, and issues surrounding his cooperation with Major League Baseball, a neutral third party would find it difficult to uphold a procedure that denies the Players’ Association a chance to cross-examine the witnesses and evidence. This becomes even more pressing when both sides crafted an agreement that directly calls for due process for such transgressions.

It seems unlikely that Selig would risk alienating the union by so blatantly circumventing the JDA.

Getting to “500 games” without going nuclear

Given these difficulties in imposing enhanced punishments, why are the rumors — further fueled by Weiner’s reference to “500 games” yesterday — so common?

That gets back to the non-testing provisions of the JDA. Baseball can punish players using four different provisions under the JDA: positive test results (50-100-life), participation in the drug trade (100-life), attempting to buy or possess PEDs (80-120-life), and any other offense that violates the agreement.

It’s the fourth method, the “any other violation” [Section 7(G)(2)] clause that grants MLB the power to suspend players for as many games as it deems “just.” It is important to understand that this provision is not tied to the 50-100-life step process related to positive test results.

Just as Michael Weiner stated, Selig has the authority to impose penalties from 5 games, to 500 games.

Selig could “stack” multiple violations of the JDA to enhance the penalties. Players could receive 150 games for the repeated use of steroids, 100 games for the participation in the sale or distribution of PEDs, 100 games for attempting to buy PEDs, and additional games for any other violation of the program.

Baseball can then use these stacked punishments to gain plea-bargain leverage that result in cooperation in future investigations or agreements where individual players give up their right to appeal their punishment. This explains reports from earlier in the week that Alex Rodriguez and Ryan Braun may be negotiating deals with MLB.

Bud Selig can do all of this without alienating the union by ignoring the JDA and invoking the “best interest of baseball” clause. That’s what I think he’ll do.

When I was discussing this with Steve, he made the following remark: Eventually the United States developed such sophisticated conventional weapons they no longer needed nuclear ones.

It looks like baseball did, too.

44 thoughts on “More Braun than Brains (Part 3): Will MLB avoid the nuclear option?

  1. EsPN article was mentioning how the suspensions probably won’t be served until 2014. I think that will help the teams out in order to plan for the year ahead without having a key player. It also “seems” that besides Braun? that MLB has the steroid problem down to just mostly latin american ball players. I wonder if they are not as educated about the rules? or just more devious or what?

    • @zab1983: If your assumption that PED use is mostly confined to players with a particular ethnic background were true, I’d offer an alternative explanation to “deviousness”: given the historical manifestation of racism in this culture (and other cultures, to be fair), it is just as likely that increased and unfair scrutiny of that particular group of players is to blame.

  2. Plus isn’t the fact that these guys on this supposed biogenesis list have obviously skirted MLB’s testing policies the last year or 2 a black eye for MLB? I mean, isn’t testing supposed to handle this stuff?

    • @zab1983: I don’t think anyone is under the impression testing will ever be equal to the latest lab breakthroughs. Going to those labs is kind of the point of things. And uh, I’m not sure anyone is going to want to follow you down the race path. Did you really say “more devious?”

      I’ll take blanket stereotyping for $500, Alex.

      • @Matt WI: not a race thing, just pointing out every guy who has gotten caught for PEDs the last 2 years on the MLB level at least has been of latin american descent(except for braun). I shouldn’t have gotten into the mindset or whatever i’m just sayin……..

  3. I am confused. You say it “seems unlikely that Selig would risk alienating the union by so blatantly circumventing the JDA” but that he “can do all of this without alienating the union by ignoring the JDA and invoking” the ‘best interest’ clause.

    • @Big Ed: The “best interest” clause is not in the Joint Drug Agreement. Commissioners have been using it for decades. The reason it would uniquely anger the Players’ Association is that the appeal is back to the commissioner himself, instead of neutral arbitrators, which is the process established through negotiation in the JDA.

      The “participating,” “attempting to buy or possess” and the “any other offense clauses are all in the JDA and would be subject to appeals in front of the arbitration panel.

      I think what Mike is saying as that if Selig wants to avoid a major disruption of labor peace, he’ll choose the JDA approach instead of the “best interest of baseball” clause.

  4. It’s going to get messy … that’s really the only thing we can predict with any certainty.

    As for Braun’s possible suspension, this year or next really doesn’t appear to matter given where the Brewers are sitting.

    As for A-Rod, the Yanks are doing whatever they can to keep him from returning and they also face the distinct possibility of not making it to the post season anyway.

  5. It sure looks like some serious suspensions are on the way. I just don’t get why Bud Selig is being so fanatical (to the point of coercing Bosch’s testimony) about this.

    If he’s confident that (a) current testing procedures, which now include random, unannounced in-season blood tests for HGH, and year-round and spring training tests as well, and (b) testing shows that only a tiny proportion of players are testing positive, why drag all these past practices out into the open.

    It’s just guaranteed to bring waves of bad news to a sport that apparently has cleaned up its act considerably. It’s like Selig has lost some perspective. Maybe he’s too worried about his own legacy.

    • @Steve Mancuso: Or that he really, really has taken the Braun decision personally. Either way, I don’t think he’s doing the sport any favors by pursuing the Biogenesis offenders so fanatically.

    • @Steve Mancuso: I believe (a) and (b) are both false. Let me explain. If currently, say, 1% of the players test positive in a given year, then if (a) and (b) were true, I would expect that maybe 2% of the players are using PEDs. I personally would guess a range of more like 25-50%. Assuming my guess is right (large assumption), then Selig’s confident in nothing.

      So, is my guess right? I think so, but no one else seems to (except for a small minority). Testing is finding less than 1% currently.

      • @Hank Aarons Teammate: I think the cheaters continue to find ways to cheat more creatively. And a big part of that is having the money to do so – which is why you see some of the bigger names on those lists.

        I was ready to give Braun the benefit of the doubt until the positive test. He got a reversal purely on a technicality and the arbitrator did blow that call.

        Steve is right about the bad press – there really isn’t any way to avoid it. It’s likely to overshadow the 2nd half of this year and then drag on through the post-season.

        • @msanmoore: Here’s where my estimate comes from: only 4 of the 20 Biogenesis folks tested positive, I think. Let’s assume they are all guilty. That means that MLB catches what, 20% of cheaters? I’m betting it’s even less than that.

          So maybe my estimate is a bit high, but I still think it’s a LOT higher than people think.

        • @Hank Aarons Teammate: I’d like to believe that you are wrong, but I don’t think that you are. The bike racing world finally caught Armstrong, after 7 TDF wins, but few observers will tell you that many of the other racers then or now are “clean.” Tests can be subverted, and the ruling bodies of sports have conflicting interests: they need to appear concerned, but would really prefer to ignore the whole business.

      • @Hank Aarons Teammate: Really? 25-50%? I don’t even think it was that rampant prior to more rigid testing. Really, there is no way to know for sure how many are still using but I’d be stunned if it is over 5% or so of players.

        • @LWBlogger: Of course, I don’t know. But I don’t see how it can be any less than 5% if the Biogenesis situation is as I though it was, with 20% of people failing tests when using.

          The incentive to cheat is so great, and people can get around tests. I’d be really surprised if it’s under 10%, and I am betting a good bit more. We certainly won’t ever know.

          Note: I do not worry about it at all. I just watch baseball.

        • I have not been a fan of Bud Selig during his tenure as commissioner, but he is in a unique position right now as a short-term, end of his tenure commisioner and I believe he is taking advantage of that opportunity to try and address a problem that has evolved during his tenure. I do not believe his motives are entirely altruistic, but the Biogensis fiasco has presented him with a unique opportunity and he is taking advantage of that opportunity.

          The testing and monitoring process for enforcing the JDA is lacking and ineffective at best and overwhelmed and impotent at worst. Without proper testing and enforcement, the JDA is worthless. I also believe that @Hank Aarons Teammate: is correct in his perspective, although overestimating the pervasiveness of the current problem. There is a group of players willing to do whatever is necessary to take advantage of the JDA testing and enforcement holes to abuse the benefits provided by PED’s. Biogenesis was not the only source for such benefits and other sources will be available in the future. Since testing and enforcement of the JDA is lacking, severe punishments for circumventing the JDA are necessary and justified. As there appears to also be collusion among some of the players to assist other players in circumventing the JDA, such severe penalties are even more justified.

          Biogenesis provided a unique opportunity for both insight into these abuses and sending a message that career threatening penalties not only can, but will be forthcoming for such participation. Playing MLB is still a priviledge, not a right, and anyone wanting to reap the significant benefits of playing MLB should be prepared to play by the rules or suffer the consequences.

          I expect future ‘clinics’ like Biogenesis to move offshore, making them less accessible to the players, but also less accessible to MLB for future intervention.

        • @LWBlogger: The 5% number fails the eyeball test. These guys play 162 games a year, and have an abbreviated off season. Yet, look how strong and lean these players are compared to the older ball players. Strength & conditioning methods haven’t evolved that much (if at all)…

          I personally would venture a guess of > 50%. I know their is the perception out there that PED users will look like Bonds/Sosa/McGwire, but the reality is that they’ll probably look more like 185-215 lb MMA-types because some speed is still optimal for the game.

          I think you mentioned you played minor league ball, but the internet has changed everything. There are literally how-to guides all over the place with where to buy, how to buy, how to circumvent the testing, etc.. It’s lost the taboo that it used to have. I have a buddy who was a thrower who narrowly missed the Olympics. He told me that he wouldn’t be surprised if EVERY Olympian in sports involving strength were using PED’s…including the female gymnasts… 8O

          I don’t even really have a problem with it, PEDs have made the game better imo.

      • @Bill Lack: You put your finger on it. The MLBPA and MLB have conducted prolonged negotiations over drug policy which resulted in the JDA. For Selig to use the “best interest” clause so extensively, outside of that agreement, it would be needlessly provocative. Selig appears to have all the power he needs under the non-testing provisions of the JDA.

  6. If I understand the testing procedure correctly, a persons testosterone level must be 4 times baseline level to get flagged. I have a suspicion (no evidence) that some are taking testosterone, just unlike Braun, being careful with the amount.

  7. completely disagree w sentiment in this post. this is not a ‘nuclear option’ (that was employed against charlie hustle in ’89). chris davis has this right in his view of the home run record. and while it allows dictatorial discretion, it is undoubtedly in the best interests of baseball to throw out the cheats and roid-heads. rose deserves cooperstown, mgwire, bonds and braun not so much.

  8. Braun kept his MVP despite the positive test, managed to get the 50-game suspension overturned on a technicality, and nearly took a second MVP trophy the next year.

    Somewhere Matt Kemp is crying over a 2011 MVP trophy that should have his name on it, which is a shame because 2011 was his career year by FAR. (Somehow though, I think his 8yr/$160m contract he got after that year helps him dry those tears a bit.)

  9. Banning Ryan Bruan and effectively icing Milwaukee and alienating their fans is NOT in the best interest of baseball.

    • @TC: Not if that is all that is done, you’re right. But PEDs require fans of all sports to either convince themselves that it’s okay for players to use them, or become increasingly disenchanted as the various games that they enjoy become further and further removed from any semblance of real sport.

      • @greenmtred: As far as I’m concerned suspending him for 50 games is fine. But 500 games is a death sentence. No, I don’t think PEDs are okay. But the punishment must fit the crime.

        • @TC:

          But 500 games is a death sentence.

          The 500 game figure was an absurd number thrown out by Weiner as an attention grabber during his statement. The 500 figure had no more validity the the 5 figure. I do expect Braun to get a very significant suspension, much more than 50 games, but not anything even approaching 500. I expect he will probably get something along the lines of 150.

        • @Shchi Cossack: If Braun agrees to give up his right to appeal, the suspension may be less than that. Those meetings between MLB and the players last week sounded ominous. It sounds like the players came face-to-face with all the evidence and charges against them and shifted into self-preservation mode instead of public defiance. I bet we’ve heard the last of Ryan Braun proclaiming his absolute innocence.

        • @TC: Glad to lend a hand TC. Let me know when you get ready to turn in tonight and I’ll be glad to tuck you in and read you a story along with the little Cossacks! :P

  10. It’s like Selig has lost some perspective. Maybe he’s too worried about his own legacy.

    That pretty wells sums up what’s at work here. Selig, I believe, wants to be remembered for cleaning up this aspect of the game rather than the commissioner under whose blind stewardship PED use exploded. The commissioner has never been able to shake the stigma of the 1994 strike or the subsequent short-sighted encouragement of the home run explosion in an effort to rebuild attendance numbers.

    I don’t know an appropriate suspension is, but making up a new set of rules for punishments is not going to end well for Selig or the game.

    Forget about the labor strife. Taking the so-called “nuclear option” ensures this story not only stays front and center for the rest of 2013 and all of 2014, it will dog Selig for the remainder of his time as commissioner. And if we’ve learned anything over the past few years, it’s that plea agreements in sports don’t really mean very much.

    This is perhaps a bad comparison but I liken this to the aftermath of the Penn State football scandal. Although the university and the NCAA reached an agreement that the school would accept harsh sanctions without pursuing legal action, there were plenty of people including ex-administrators, the Paternos and state and U.S. legislators who were willing to threaten litigation. The last thing baseball wants is another investigation into who knew what and when they knew it. I would think Selig and MLB’s lawyers would be smart enough to take a judicious approach to suspensions, but long-term vision has never been one of the commissioner’s strengths.

    It’s ironic that Milwaukee, of all places, has become the epicenter of this round of the PED saga as the two most prominent faces are Selig and the star player of the franchise that has a statue of the commissioner outside its stadium.

  11. Thank you Michael, and Steve, for this very enlightening series. I have learned much about the CBA and JDA from this series. It is a very good read. Not alot of legalese and legal jargon to bog a reader down. Good, informative journalism. A rarity these days.

  12. It’s dispiriting that several of the posters have argued essentially that aggressively investigating and punishing high-profile cheaters is not in the best interests of baseball. I don’t hold that opinion. Yes, doing so causes pain to players, fans, teams and The Game. But that pain is entirely the fault of the cheaters — not the enforcement regime. And administering an enforcement regime that is intentionally soft or hole-ridden simply encourages the acts and suborns them. I’d even go so far as to say it conspires with them, as baseball has long done.

    It’s the same problem we have in this country with the relationship between government and powerful industry. Few of the banks who recklessly and selfishly caused the last recession have been held to account because doing so is messy, expensive, embarrassing, and harmful in the short term. But NOT doing so savagely erodes public confidence in the fairness of the justice system. And it leaves a systemic problem in place that certainly will produce more such catastrophes in the future.

    I find the fact that baseball is apparently about to confront this ugly embarrassment when they might have swept it under the rug a sign that they are actually taking the problem seriously and responding with some modicum of integrity. I am encouraged, and I think it’s the kind of decision that will ultimately benefit baseball. I wish we could apply such an attitude to more pressing problems.

    • @groujo: Interesting analogy with the banking system and in general I agree with you about the need to bust cheaters to protect the integrity of the game.

      But if the new testing regime – much of which has only been in place for months – is so aggressive and effective, to the point where they feel cheating has been beaten down to a tiny segment of the sport, then I question the value of going to such great lengths to dig up and prosecute the Biogenesis scandal.

      In a broad measure, the decline in home runs speaks to the overall effectiveness of the new regime. It’s not like Ryan Braun is hitting 70 home runs (he averages 36/season and the most he has hit was 41 last year). It’s a far cry from Bonds/Sosa/McGwire.

      If we had a new, effective set of regulations in place for the banking industry, to use your example, such that inappropriate risk taking was kept low and consumer protections were in place, would it be worthwhile for the government to dig up another scandal from 2010 that would undermine confidence in the system and threaten another economic collapse?

    • @groujo: In areas of live that matter I agree with you 100%. But this is baseball, a diversion, something fun and enjoyable. In other words, in the grand scene of life none of this important. Please don’t misunderstand that to mean I don’t care. Like you I do. I really, really do. It irritates me that in this world cheaters win, karma is something we lie to ourselves about, and justice is an impossible ideal.

      But in the evening, when I want to relax from a long day at work and dream of baseball, I don’t want it to be spoiled by thinking about this stuff. It make it less enjoyable.

      My comments must be confusing because I keep talking out of both sides of my mouth. That is evidence of someone who clearly sees both sides of the issue. But to answer your indictment that I don’t believe aggressive investigation and punishment is in the best interest of baseball, I think your indictment is both fair and unfair. (I’m assuming you were mostly speaking to me even though you said “many” because my comment was the most blatant.) Investigate away. Punish the offenders. Block them from holding records or being inducted into the hall. Fine them. Do anything you want to them provided it is fair and appropriate. But don’t ban or otherwise level punishments like THREE YEARS of suspension. How is it in the best interest of baseball to take the players off the stage? That’s punishing the fans.

  13. I would love to know what evidence they actually have. My point from the beginning is that they can’t suspend people on the word of a low life.

    I’d also like to know why, independent of the rules Selig could use, people think that these folks using PEDs (assuming they are) should get larger sentences than those prescribed in the policy. Because they lied about taking drugs? Isn’t that what people do?

    Somehow there’s a notion that people like me love PEDs. Not true. I like due process and following the rules.

    • @Hank Aarons Teammate: Chances are, we will never know what MLB has. As Steve mentioned before, some players are reported to be taking plea deals so that the evidence will not get leaked to the public. The players that do appeal their suspensions will be the ones who face the least amount of evidence. Keep this in if players cut deals — it means there will be a bias against the evidence that does make it to the press.

      I want to push back a little on the idea that Bosch should/should not be trusted. Everyone in the hearing is going to be an interested party: the players, the union, MLB, Tony Bosch, other witnesses, etc. I dont think it is the word of Tony Bosch the players are concerned about — it would be all the other evidence that backs up his words.

      I agree that there is an outrage contest that usually surrounds these issues: one person says suspend a player for 50 games, the next person says 100, the next person says ban them from ever saying the word ‘baseball’ again. Its a complicated issue – and its sad that due process is usually sacrificed to the loud-but-wrong voices that tend to dominate PED related conversations. Where was the outrage when baseball negotiated a 50 game suspension for a first positive test?

      • @Michael Maffie: I really believe that if they didn’t have evidence beyond things that Bosch supplied, MLB is in trouble. They need significant corroborating evidence.

        • @Hank Aarons Teammate: From what I’ve read, they had significant corroborating evidence before Bosch flipped, but that he can tie it all together. So I think they do have a lot. Maybe it holds up better during the plea negotiations than it would under cross examination.

  14. To broaden this a little bit, how do folks feel about Tommy John or lasik surgery as performance-enhancing steps that the older players never had available to them?

    If we care about the sacredness of the old records (and I do) shouldn’t we feel uncomfortable as science advances? How would anyone feel about baseball regulating the physical improvements players can take?

    Regarding the fact that players are bigger/stronger than those in the past. I don’t attribute that much at all to illegal drugs. The influx of money into professional sports had enabled players to make their athletic professions 12-month jobs. They spend the off season working out. There is also much better science today for nutrition and the harmful effects of smoking and drinking. I bet professional baseball players drink much less alcohol than players did in MIckey Mantle’s era.

    Clubs also invest in weight rooms and trainers etc. and the broad availability of that equipment in clubhouses has risen dramatically.

    I was at the University of Michigan when Bo Schembechler quit as the football coach and took the job as President of the Detroit Tigers. He took the head football trainer, Russ Miller, with him (I know this because my roommate at the time was Miller’s #2 guy). Bo and Russ Miller were among the first to take workout equipment to professional baseball. That was around 1990.

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