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.

The big question circulating since ESPN first broke the news that Major League Baseball would seek suspensions for the twenty players linked to Biogenesis is: Would baseball suspend the players for 50 games or try for more ambitious punishments?

As outlined in yesterday’s post, the vanilla scenario would be for MLB to suspend first-time offending players 50 games while suspending second-time offenders for 100 games.

But six weeks ago, ESPN reported that MLB was considering more lengthy punishments for Ryan Braun of the Milwaukee Brewers and Alex Rodriguez of the New York Yankees. Just how would MLB justify these enhanced penalties?

There are two possible ways that MLB might argue for more stringent punishment for Braun and Rodriguez. The first is that the players lied to investigators. The second is that the players were participants in the drug trade.

Regarding the enhanced punishment for lying, ESPN’s sources claimed the players’ relationship with Biogenesis would qualify for the first step in the JDA discipline process (50 games) while lying to MLB during the investigation would qualify for a second step in the discipline process (100 games). When asked why this added up to 100 games instead of 150, NBCSports cited an unnamed source that indicated baseball believed this was a “middle ground”.

But there are serious doubts about this rationale for extra punishment.

As outlined by Jonah Keri at Grantland, one major question MLB would have to answer is why this doctrine only applies to Rodriguez and Braun. For example, if Yasmani Grandal or Melky Cabrera lied (or refused to answer questions) regarding their relationship to Biogenesis, then they should both qualify for the third step in the discipline process: a lifetime ban from baseball.

Second, it is unclear what part of the Joint Drug Agreement MLB would use to demonstrate that both parties understood lying –or lack of cooperation – is a qualifying offense. In this part of the arbitration, the panel will look for evidence (meeting notes, contract language proposals, joint public statements, etc) that show at the time of the agreement both parties understood that players must cooperate with MLB or face a stiffer punishment from the league.

Absent evidence this was understood by both parties during the JDA negotiations, I am skeptical the ‘lying’ rationale would be persuasive to an arbitrator. There is, however, a more direct way to suspend the players under the Joint Drug Agreement, and that is using the “participants” provision of the JDA.

Major League Baseball lacks the positive tests that would make this an easy case. Instead, they have Tony Bosch. And Bosch had to build a 90+ client list somehow.

A provision of the JDA prohibits the “participation” in the sale or distribution of prohibited substances (Section 7(F)). To date, baseball has never suspended a player for the participation in the sale or distribution of PEDs.

I want to tread carefully here – and emphasize that this is speculation – but if baseball has obtained text messages, emails, call records, or testimony from other sources that indicate players have referred other players to Bosch, that evidence could prove that Braun and/or Rodriguez participated in the distribution or sale of PEDs. Bosch could also supply testimony that players helped him build his practice.

What is the maximum first suspension for participating in the sale or distribution of PEDs? 100 games (minimum: 80).

The second offense? A lifetime ban from baseball.

There is a major difference between these two avenues regarding baseball’s success at arbitrating the claims. Arbitrators are traditionally hesitant to break new ground in their decisions. Although no two arbitrators are the same, their overarching goal is to resolve the conflict while maintaining the relationship between the parties. Over many years, baseball and the players’ union have refined their relationship and created 19 consecutive years of labor peace.

Due to this, I believe an arbitration panel would be hesitant to establish for the first time that players have a responsibility to cooperate with an internal investigation under the JDA. This is an issue that is best left to MLB and the MLBPA to determine at the bargaining table.

The participation clause, however, is clearer. It does not require the players to sell, distribute, or aid in the sale of PEDs. It only requires participation. Like the “lying” rationale, no players have ever been suspended for participation in distribution of PEDs. Due to this, important questions, like — ‘would referring two players to Tony Bosch amount to a lifetime ban from baseball?’, are unanswered. But, unlike the ‘lying’ rationale, the language exists in the JDA and the word “participation” had to be selected to set an intentionally low bar.

Even if baseball attempts to use the “lying” rationale, the arbitration panel can decide that lying is not worthy of a second “strike” and reduce the suspensions to 50 games.

Suspending players for 100 games would let Commissioner Selig show he is “getting tough” on PEDs and – at worst – the punishments would be reduced to 50 games. Major League Baseball could still claim they want to be tough on drugs while blaming the arbitration panel for being too weak on PEDs and painting the union as defending steroid users.

This is an ugly scenario, and one that I hope baseball will avoid. But it’s not the worst case. That’s the so-called Nuclear Option, which will be the subject of my next post.

Join the conversation! 10 Comments

  1. This whole thing stinks to high heaven. The “Nuclear Option”, if imposed, would give baseball a serious black eye.

    I’d bet dollars to donuts that no suspensions will happen and all this will get swept under the rug.

    • I’d bet dollars to donuts that no suspensions will happen and all this will get swept under the rug.

      That’s a serious miscalculation on your part. On the MLB Sirius/XM station this afternoon, all the analysts are saying the penalties are going to be much more serious than anyone previously thought. Even the MLBPA leader was saying the Commissioner has broad authority to impose sanctions, laying the groundwork for what is going to be announced.

      I predict that by the end of this week, we’ll see jaw-dropping suspensions handed out.

      • @Steve Mancuso: The Commissioner has broad authority to *announce* sanctions. Whether those stick or not is highly questionable at this point.

        Generally, in this country we do not change punishments after the fact. If the penalty for crime X is Y, then you get Y if you did X. You don’t get twice as much as Y if you do X, all of a sudden, on the whim of a judge. Yes, judges have ranges, but the MLB drug agreement specifies penalties.

        • @Hank Aarons Teammate: The penalties of 50 days and 100 days apply only to positive drug test results. The enhanced penalties, as Mike writes about in the post, come from “participating” in the distribution of drugs. For example, suppose MLB can prove that Alex Rodriguez told a young player to go to Biogenesis. Those punishments are not bounded by the 50/100 framework.

          I’m not saying I agree with them, believe me, I strongly don’t. What I’m saying is that it sounds like they are coming down. And several players, including Braun and ARod, may be in situations where they either agree through plea bargain not to challenge, or just decide it’s in their best interest for timing or publicity not to challenge.

          Selig’s announcements, as misguided as they are, have a good chance of sticking if he uses the participation clause.

      • @Steve Mancuso: Wow, I didn’t hear that. I figured that with the power that the MLBPA has, they would essentially not allow the suspensions to happen.

  2. One of the interesting aspects of the impending suspensions is the timing and it relates to pennant chases, the post-season and free agency.

    Say a player (Nelson Cruz from the Texas Rangers or Jhonny Peralta from the Tigers) gets suspended 50 games. As Mike pointed out in his post yesterday, each player has the option of appealing their punishment or not. If Cruz and Peralta started to serve their suspensions today, they would be back in time for the final couple weeks of the season and post-season. If they decide to appeal, most people estimate the appeals would take place in September. So if they lose the appeal, they could play until September but then would miss the stretch drive, the post-season and the start of 2014. That’s a tough calculation for players to make.

    Players who are going to be free agents at the end of 2013 have a tricky choice, too. They could appeal, which would mean they could help their teams for the rest of the season, but then if they lose the appeal they would be out for a pretty big chunk of 2014, hurting their attractiveness as a free agent. So do they bail on their current teammates to help their free agency or not?

  3. Jim Bowden (I know, consider the source) said on the radio today that he had spoken with a player who had seen MLB’s case against him and had decided to take the suspension without appeal because he didn’t want all the information that MLB had on him coming out in the public during the appeal.

  4. OK, so apparently there’s this nuclear option. If Selig uses that, he’ll regret it, as in 2016 MLB will find that the players will not agree to any more drug testing.

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