Tuesday, ESPN’s Outside the Lines reignited the Biogenesis story.
Thanks to the cooperation of disgraced not-doctor Tony Bosch, “Major League Baseball will seek to suspend about 20 players connected to the Miami-area clinic at the heart of an ongoing performance-enhancing drug scandal, including Alex Rodriguez and Ryan Braun, possibly within the next few weeks, “Outside the Lines” has learned.”
The Mets’ Cesar Puello, who is currently in AA, and hitting well, is the only player who MLB hopes to discipline, who is not on a Major League roster. However, Puello is on the Mets’ 40-man roster, which means he is covered under the Joint Drug Agreement, a protection not afforded non-40-man minor leaguers.
First and foremost the information about potential suspensions coming out this way strikes me as a cry for attention. No suspensions have been announced. No player has failed a drug test, nor does MLB have the full weight of evidence it would need to suspend a player without a positive test. If MLB had the evidence it needed for a suspension, it would have announced suspensions. If they felt that they would have had enough evidence to maintain suspensions in front of an arbitrator with Bosch’s evidence, they would have tried to keep his turn private. Instead, this feels like the first salvo in a very public, and surely very ugly, public negotiation.
Second, despite a cry in some internet circles last night, Major League Baseball is not changing the rules of the game. The sport’s Joint Drug Agreement (full text) is very clear, a player need not test positive to be subject to discipline. The relevant text from section 7, paragraph A:
A Player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the use or possession of a Performance Enhancing Substance, will be subject to the discipline set forth below.
Emphasis added. In order to suspend anyone, MLB will have to establish use or possession. Proving possession is a high burden. MLB has to have a clean custody chain all the way to the player.
In this context, Bosch meeting with a player is not enough. Payments in a ledger book is not enough. Nor is handing illicit drugs to a player’s niece, friend, agent etc. There has to be drugs in a defendant’s hand, right?
Or as labor lawyer Eugene Freedman put it:
MLB has to prove all elements of conduct if charge is possession (it’s not positive test) word of Bosch weak evidence & test exculpatory
— Eugene Freedman (@EugeneFreedman) June 5, 2013
Third, relying on Bosch too heavily is problematic. Bosch’s word is especially weak because MLB is offering significant financial incentive to cooperate. As enumerated in the original ESPN story: “Major League Baseball will drop the lawsuit it filed against Bosch in March; indemnify him for any liability arising from his cooperation; provide personal security for him and even put in a good word with any law enforcement agency that may bring charges against him.” Of course, he also denied he had anything to do with PEDs on ESPN’s own airwaves.
Craig Calceterra at Hardball Talk does an outstanding job laying out why a case that relies on Bosch’s testimony is “is equivalent to erecting a building on a rotten foundation.” He then proceeds to take baseball to task for flailing for big name scores rather than asking the right questions about PED use.
Confidentially, Or Only When It’s Convenient?
Finally, Major League Baseball has clearly violated the confidentiality portion of the Joint Drug Agreement. After all, Tuesday’s leaks did not come from the players’ side.
Section 5 begins:
The confidentiality of Player information is essential to the Program’s success.
Any and all information relating to a Player’s involvement in the Program, including, but not limited to, the fact of the results of any Prohibited Substance testing to which the Player may be subject, and any discipline imposed upon the Player by the Commissioner’s Office shall remain strictly confidential.
It is clear that confidentially has not been maintained here. I did not see a remedy for MLBPA in the event that MLB violates any of the JDA’s confidentiality clauses. I wonder if the players can or would sue MLB for wrongful damages.
If an umpire has a big strike zone, that’s ok, as long as he calls it the same way for both sides. In this case, baseball has 1,200 sides, the number of players on 40-man rosters. Baseball has pursued Biogenesis and its baseball playing clients long after law enforcement gave up – no charges were ever filed against anyone associated with Biogenesis. Thus, in the name of fairness, the commissioner’s office should be prepared to follow any other new PED leads with any other players with the same zeal. Otherwise, this becomes a case of picking on a select group of players and this selective administration of punishment should be extremely concerning. The other tack is that baseball will be forced to be constantly aggressively investigating its own players (at least when following up media reports) if it is to operate with any degree of fairness moving forward. Neither the commissioner’s office nor the Players’ Association wants a climate of constant investigation (I don’t think).
Assume for a second that some, but not all of the players whose names have been publicly linked to Biogenesis bought and used performance enhancing drugs, as defined by the JDA. (There’s scant evidence that HGH makes for better baseball players, but that’s a separate issue.) So, some of these players, including say, Gio Gonzalez, who MLB has more or less already absolved, will have their reputations tarnished without cause. Others will be punished for use. The issue is that other players, who did not go to Biogenesis also used, but managed to elude baseball’s drug tests. They will skate.
What is the point of a drug testing program if baseball feels the need to investigate outside allegations so carefully? Where’s the gain in acting as though the drug testing regime (which I think has been fairly effective at cutting down, but not eliminating certain categories of PED use) just does not work?
As a followup to the consistency argument, then, baseball will constantly be investigating its own stars. It is the players who make the sport great, the players whose jerseys fans buy, and the players who compel fans to watch games and buy tickets. Baseball will in effect be telling their customers that their product – the players – is untrustworthy. That sure seems like bad business from this end.
It did not have to be this way. However, MLB, by choosing this process and this massive breach of confidentiality, for the investigation of Biogenesis and the associated players, has elected to spend much of the 2013 season talking about banned substances instead of the product on the field.
To what end? Justice? Eradicating PEDs? Please. Ending PED use is absolutely impossible. The incentives of multi-million dollar pay days is much too strong. Most players will not use, but some will. Making a big show of embarrassing players is no way to sell the game administer justice or even deter PED use.
Punishing the users is fair. Punishing the users twice for the same infraction is not. Most importantly, MLB must follow its own confidentiality rules and procedures rather than rushing to the penalty stage or using ESPN to create a public association of guilt.
Update: Freedman, whose tweet I cited above, and whose timeline last night, helped clarify my thinking on the issue now has an article up at the Hardball Times making the case that baseball is overreaching in the direct prose of a lawyer who practices this kind of thing everyday.