Last Saturday, arbitrator Frederic Horowitz handed down a 162-game drug-related suspension for Yankee third baseman Alex Rodriguez. The ruling reduced the original 211-game suspension imposed by Major League Baseball. The details of MLB’s case and the arbitrator’s ruling have been covered extensively. Steve Eder of the New York Times, for example, reaches all the right conclusions.
In a series of three posts here last July, I outlined the basic concept of the Joint Drug Agreement and PED punishment, how the JDA gives the commissioner broad authority to crack down on PED use beyond punishing positive test results, and how the commissioner could stack the different provisions of the JDA to impose unprecedented levels of punishment. That’s all come to pass in the Rodriguez case.
I’ve read through Horowitz’s ruling and here are my thoughts about what it means for the PED regime going forward:
Many commentators are concerned with the credibility of Tony Bosch. Given his inconsistent statements regarding his relationship with Alex Rodriguez, this is not irrational. Yet, in an arbitration hearing, as with most justice forums, credibility emerges when testimony lines up with other evidence. In this trial, it was not the word of Tony Bosch against the word of Alex Rodriguez (for one, Rodriguez chose not to testify); instead, the arbitrator relied heavily on the other evidence that corroborated Bosch’s story.
MLB presented Bosch’s treatment notes and records he kept while working with Rodriguez, hundreds of text messages between the two and bank transfers in the hundreds of thousands of dollars. Travis Tygart, the CEO of the U.S. Anti-Doping Agency, told the AP that Bosch was providing Rodriguez “probably the most potent and sophisticated drug program developed for an athlete.”
Yet Rodriguez never failed a drug test. In fact, he passed all eleven tests he took from 2010-2012. Evidence cited in the ruling proved that Rodriguez was using three different banned substances three to four times a week for three years. Rodriguez took hundreds of injections, creams, gummies, and other strangely named substances. Yet, baseball’s testing regime whiffed, going 0-for-11 over three seasons. People who want more testing in professional baseball need to think long and hard about what the Rodriguez case shows about the effectiveness of drug testing when tens of millions of dollars are on the line.
If Alex Rodriguez never tested positive, how did he receive the largest prohibited substances punishment in the history of the league? Because the JDA is about a lot more than positive test results. Leading up to the agreement, most commentators cried out for greater testing while at the same time bemoaning its ineffectiveness. The JDA solves that dilemma by expanding the scope of baseball’s anti-doping policy to make a variety of connections with PEDs – distributing, purchasing, and using – punishable.
After reading the JDA, one might even have the impression that baseball is resigned to the fact that testing will never outpace doping. Section 7 of the JDA outlines the punishments for engaging in the use (50-100-life), possession (60-120-life), distribution (80-life), or any other violation of the spirit of the JDA (unspecified). Which of these behaviors has the weakest punishment? Use, which is proven by testing. The other three punishable actions are enforceable by relying on other types of evidence – human testimony, bank records, text messages, etc. – to show that players violated the agreement. In this light, while testing is the most definitive way to demonstrate a player violated the JDA, in the end, it is one of many tools MLB has at its disposal.
Based on the effectiveness of the non-testing evidence in the Rodriguez case, MLB now knows it has a powerful weapon in the JDA, despite the inherent weaknesses of the testing regime.
But not every aspect of the Rodriguez ruling is good news for those who want stricter penalties for PED use. Despite the fact that MLB clearly demonstrated that Rodriguez had used three different substances hundreds of times, he was only suspended 50 games for each different substance, equivalent to less than one failed test for each. The violations weren’t stacked, resulting in a lifetime ban. Even the arbitrator notes that Rodriguez’s behavior was a continuous and willful violation of the JDA, yet Horowitz reduced the punishment from 211 to 162 games. This aspect of the decision is favorable to Rodriguez. It’s also a big win for future accused players, because they can’t be banned for life for prolonged use of the same drug.
I would probably have handed down a stronger punishment, maybe even a lifetime ban. I say this in spite of my general favorability to the employee’s claims in an arbitration hearing because I am harder on the employer’s evidence than most arbitrators. But if the weekly use of multiple prohibited substances over three years, on top of two attempts to cover up that behavior, is not grounds for a lifetime ban from baseball, what is?
Selig and Horowitz were probably hesitant to go for a lifetime ban because of its extreme nature. And Rodriguez might have had a legitimate point that a ban would not be faithful to the JDA/CBA and Selig might have been forced to defend it in a court. Suspending a first time offender – remember that pre-2006 PED use was exonerated by the JDA – for life, to permanently bar an employee from his existing way of making a living, is not an easy decision to write for an arbitrator.
An arbitrator once told me that decisions should help the parties move on from their current disagreement and inform their future bargaining over the issue. What they should never do is become a point of contention between management and the union. A lifetime ban could have upset the relationship between MLB and the MLBPA. We already know that the MLBPA will bring the issue up in the next round of bargaining, and handing down the “industrial death penalty” against such a high profile player would complicate it further. Horowitz’s decision helps both parties move forward into the next round of collective bargaining.
Given the overwhelming amount of evidence we saw in this decision, it is difficult to understand why Rodriguez filed a lawsuit and pushed for the decision to be made public. At the same time, it is now clear why the other players linked to Biogenesis decided to accept plea deals from MLB.
In the end, it was a sad and strange way for MLB to prevail in an arbitration ruling on PEDs. They had to rely on the statements of a lying drug dealer, who without formal medical training was able to design a steroid scheme that evaded baseball’s testing regime for years.