Ed.: Michael Maffie is a graduate student studying Industrial 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.

Shortly after the All-Star Game, baseball commissioner Bud Selig is expected to suspend roughly twenty players for their connection to the anti-aging clinic Biogenesis, according to recent reports by ESPN.

The most prominent names attached to the story are Ryan Braun, former MVP from the Milwaukee Brewers, and three-time MVP and fourteen-time All-Star, Alex Rodriguez, of the New York Yankees. So far, no Reds player has been connected with the Biogenesis clinic.

To deal with the problem of Performance Enhancing Drugs (PEDs) in baseball, MLB and the Players’ Association (MLBPA) created the Joint Drug Agreement (JDA). This agreement outlines the penalties for players found guilty of taking PEDs (and other drugs). A first PED-related offense results in a 50 game suspension, a second offense 100 games. A third positive test results in a lifetime ban.

Players who are suspended can appeal their punishment and they often have in the past. While the appeal is ongoing, they are allowed to continue playing baseball. As out outlined in the JDA, the appeal is heard by a three-person arbitration panel, whose decision is binding on the participants. The panel is comprised of one representative chosen by MLB, one chosen by the MLBPA and Fredric Horowitz. Horowitz replaces Shyam Das, the former arbitrator who was fired after he overturned MLB’s previous attempt to punish Braun for PED use.

Major League Baseball does not have a positive test for any of the twenty players. Due to this, a major part of baseball’s case against the players is likely to be the credibility of Tony Bosch.

Up until a few weeks ago, Bosch, the founder of Biogenesis, refused to cooperate with Major League Baseball’s investigation. MLB needed his testimony and documents to build a case that could survive the inevitable appeal from the Players’ Union. To gain his cooperation, Major League Baseball launched a lawsuit to encourage (some say coerce) Bosch’s cooperation.

And Selig’s tactics worked. Bosch, believed to be out of money to front a credible legal defense, agreed to cooperate with Major League Baseball.

Major League Baseball’s strategy of using legal threats to gain Bosch’s cooperation has gained a chorus of critics. Bosch’s credibility will be a serious issue during the arbitration hearing, and MLB will need to provide evidence corroborating Bosch’s story. One of the ways the union will look to discredit his actions is to show how his story now does not match the actions he took while running the Biogenesis clinic.

One way the panel will approach this question is by examining Bosch’s testimony and comparing it to his previous actions. For example, can he identify some players but not other players in his records? Are there travel arrangements the players made to corroborate this story? What about phone and text records? The content of his actions, and if there are other witnesses – their recollection – will be help the panel determine Bosch’s credibility.

Remember, MLB has the burden of proof in the hearing. As outlined in the Joint Drug Agreement, they must demonstrate they had sufficient evidence to suspend each of the players.

The second question the panel will confront is if the punishment corresponds with the player’s offense. For example, if one player received one steroid injection and another received multiple, should they both be suspended under the same tier?

For some players, the evidence might strongly suggest they were tied to the Biogenesis clinic and Tony Bosch, for others, their suspensions might be reduced or dismissed entirely. It is still unknown if the MLBPA will appeal all of the suspensions at once or if they will have to hold multiple hearings.

The panel will convene at the earliest possible time, but that could be months from now. Professional arbitrators are in high demand and usually schedule months in advance. After the hearing, the arbitrators will have a few weeks to hand down their ruling. We will probably never read the opinion, as they are not public documents, but will be informed of the result.

To be continued…

Join the conversation! 21 Comments

  1. Nice first post Mike!

    (Full disclosure, Mike is a friend of mine.)

    Question – How does Frederic Horowitz get assigned to the panel? Do both MLB and the MLBPA have the power to fire him?

    • @Steve Mancuso: Hi Steve,

      Thats an good question about arbitration panels. Its a bit strange to think that Das (the previous arbitrator) was fired for making a controversial decision. I’ve heard arbitrators say they treat every case like it is their final case.

      Arbitrators can either be selected on an ad-hoc basis (where each side is given a list of 5 or so names, and they go back and forth striking names until there is only one name left) or they can agree on a ‘full time’ arbitrator.

      Some agreements name a full time arbitrator to handle all disputes between the parties. Both sides have to agree on the person, so either side could dismiss the arbitrator should they make a controversial decision. The goal, however, it to select an arbitrator that you trust to make a fair decision regardless of the outcome.

  2. (Full disclosure, I am a dyed-in-the Wishbone-C Reds fan.)

    I am thrilled that no Reds’ players are implicated in the Biogensis fiasco, but I’m disappointed (that’s a politically correct disciption) that confidentiality related to this fiasco has been non-existent.

    Two peripheral issues to the Biogensis fiasco, but directly related to PED:

    A 50 game suspension for the 1st offense and a 100 game suspension for the 2nd offense, with the burden of proof (rightfully so) on MLB and the players and the player’s union using every tactic and avenue at their disposal to circumvent any responsibility, are non-deterrents. With tens of millions of dollars at stake for guaranteed contracts, such mild suspensions are not going to be effective. The players willing to risk getting caught for the chance at multi-million dollar fortunes will deveote their efforts and finances to avoiding the potential consequences rather than worrying about the consequences. The 1st offense should be a 1 year ban. The 2nd offense should be 2 years and the forfeiture and negating of any contract negotiated during the prior 3 years. The 3rd offense should be a non-revokable lifetime ban.

    The teams should bear some responsibility for making sure their players are clean and the teams should be held accoutable for multiple violations within the organization. Get rid of PED or get rid of the players who try to cheat the system.

    • @Shchi Cossack: I completely agree on tougher penalties. I’ll beat this dead horse, but if Pete Rose can get banned from baseball for gambling (mind you, I don’t condone that he did it), then someone who is juicing should as well.

      I just find it a little hysterical that someone can cheat and juice to get better numbers, and then get hit with a 50 game ban. Big deal.

      Then someone else gets caught gambling on baseball games, and he’s banned from baseball for life. Sorry again to beat that dead horse, but I just feel like that’s not a fair trade off. If you’re going to hand down a harsh penalty like a lifetime ban for offenses such as gambling, then the same should apply for juicers.

      Just my two cents.

      • @TraviXDM: Well, we’ve been around this many a time, so I’ll keep this short. The stark difference between steroids and gambling is that steroid users were cheating to win, while gambling raises the spectre that some players/teams may be cheating to *lose*, thereby undercutting the faith that fans are seeing genuine effort.

        Steroids are bad. Gambling could destroy the game itself. There’s no equivalence there worth noting.

        • @RC: I can agree with that as well RC. Neither one is acceptable in my book, but cheating is cheating and I feel that both could destroy the game’s integrity.

          I still stand with Cossack on the harsher penalties though.

    • @Shchi Cossack: Agree but isn’t the issue that they have to deal with the Player’s Association when setting up the penalties? I’m not sure how that process works. If so then I understand why they’re as lenient as they currently are.

      • @Mwv: Hi Mwv,

        Thats a good question. The JDA is separate agreement from the collective bargaining agreement. The agreement was negotiated between the Players’ Union and the commissioner’s office.

        The players union has pro-activiety supported baseball’s attempt to rid the game of PEDs. This makes sense, too. No player wants to be in a situation where they either have to do drugs (and potentially be blacklisted from their desired profession) or be put in a competitive disadvantage. It is my impression (reading between the lines when I was doing research for this article) that the players associated with PEDs are not too popular around the league. Every time a player hits a PED-aided HR, some other player’s ERA goes up. Its not a totally cut and dry issue within the players’ union.

        The 50/100/life steps were also supported by MLB clubs. If a player is suspended for a long period of time, then each close loses one its of 25 most valuable people. These are players that clubs have devoted years of training into developing, and need for future revenue or trade pieces. Losing a player for an entire year could result in the player not coming back at the same level as before. It also would decrease the chance the teams have to make the playoffs and could impact gate revenue if its a star player.

        It is not an easy issue, because both sides benefit from PEDs, although neither wants them in the game. Hence, why during the 90s there was an explosion of PED use (more home runs, more revenue, more concessions, bigger TV deals, higher wages, etc) and, in a post-strike world, MLB looked the other way.

    • @Shchi Cossack: While I don’t follow this as closely as Mike does, my sense is there has been a sea change in the attitude of the players’ union toward PEDs. The MLBPA was a big part of the problem back during the steroid era, along with the Commissioner’s office that turned a blind eye toward the rampant usage that was blatantly undermining the sport’s greatest records. The union was reflecting many, perhaps a majority of its members, who wanted to keep using PEDs of various kinds.

      But now, the union has gone along with many of the steps that the league has taken. The vast majority of players are clean so they want the few outliers rooted out.

      That said, I wouldn’t expect any employee who is punished by an employer to not have and take full advantage of the procedural protections offered — in this case the right to an appeal in front of a neutral arbitrator.

    • @Shchi Cossack: The Cossack is dead red right.

  3. Great replies guys, especially Mike. It’s hard to know how all the back and forth actually works between the players, owners and the league itself as a fan. It does make sense that there’s conflict between the players themselves given how much money is at stake on both sides of the pitcher/batter coin. To perhaps jaunt a little further off topic for comparison’s sake.. does anyone know if the players are as cooperative with enforcement/setting up the rules in the other major sports? Particularly the NFL? The whole subject is really interesting once you get past the “did X player use PEDs?” angle, which gets old fast (to me) in the media.

    If things really are moving in a better direction then I’m really encouraged about where we’ll end up. The last 10 years or so the game has really taken a black eye with all these scandals/revelations and as a fan it’s hard not to be a little grim about the outlook.

  4. Gaggumit anyhoo, I really like this blog. I’m sorry, but the intellectual or at least intelligent conversations and disputes that take place on this blog, even regarding mundane issues like lineup construction, are just not present on other blogs.

    Way to hit a topical button during the down time created by the all star break.

    Thanks for sharing your expertise and insight Mike (or Michael if you prefer).

  5. I’m sure whatever Bartolo Colon was taking from Biogenesis must account for his svelte frame.

  6. What percent of players in MLB are clean? I think saying the “vast majority” is a huge overstatement. I think there is a lot more PED use than people think. Just saying. It’s not provable either way. Note: I personally do not concern myself with PEDs, but I’m sure there are a myriad of ways to get around testing.

    But this prosecution is going to be ridiculous. 100 game suspensions will never stand up, and even 50 game suspensions based on a low-life like Bosch…as I’ve said, he better have massive evidence.

  7. By all appearances, MLB looks to have quite a bit of evidence on it’s side. It seems doubtful to me that they would be leaking news the way they have been if they didn’t have a considerable amount of evidence. This won’t be merely about the veracity of Bosch’s word or his character. One thing we know: you don’t get this stuff on the QT from your neighborhood CVS or Duane Reade. The guys who traffic in this business are usually of questionable character.

    Over the weekend, A-Rod spent 4 plus hours with MLB. I’m guessing they were doing much of the talking and he was doing most of the listening. The fact that his lawyers are already negotiating a plea bargain tells you MLB must have laid down some serious evidence in front of Rodriguez and asked “what do you want to do now?”

Comments are closed.


Baseball - General