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 claimedÃ‚Â the playersÃ¢â‚¬â„¢ 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).Ã‚Â When asked why this added up to 100 games instead of 150, NBCSports cited an unnamed source that indicated baseball believed this was a Ã¢â‚¬Å“middle groundÃ¢â‚¬Â.
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 Ã¢â‚¬â€œor lack of cooperation Ã¢â‚¬â€œ 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 Ã¢â‚¬Å“participationÃ¢â‚¬Â 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 Ã¢â‚¬â€œ and emphasize that this is speculation Ã¢â‚¬â€œ 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 baseballÃ¢â‚¬â„¢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 playersÃ¢â‚¬â„¢ 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 Ã¢â‚¬Å“strikeÃ¢â‚¬Â and reduce the suspensions to 50 games.
Suspending players for 100 games would let Commissioner Selig show he is Ã¢â‚¬Å“getting toughÃ¢â‚¬Â on PEDs and Ã¢â‚¬â€œ at worst Ã¢â‚¬â€œ 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-calledÃ‚Â Nuclear Option, which will be the subject of my next post.