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…