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 and part two here.
With rumors swirling about the possibility of long PED-related suspensions, Commissioner Bud Selig and MLBPA head, Michael Weiner, held press conferences in New York, just hours before the All-Star Game.
Both dropped bombshells.
As I’ve outlined here the past two days, traditionally the Commissioner has suspended players for using PEDs based on positive test results. First time offenders are suspended for 50 days, second time offenders for 100. Three strikes and you’re out.
But recent ESPN reports have indicated the suspensions may be much longer in relation to the Biogenesis scandal. The comments made by Selig and Weiner in the past couple days shed important — and maybe troublesome — light on that possibility.
The Ã¢â‚¬Å“best interest of baseball clauseÃ¢â‚¬Â
Section XI A(1)(b), the Ã¢â‚¬Å“best interest of baseballÃ¢â‚¬Â clause fromÃ‚Â the Collective Bargaining Agreement draws heavily from the deal that crowned Judge Kenesaw Mountain Landis the first commissioner of baseball. Following the 1919 Chicago Black Sox scandal, baseball needed a powerful figure to rid the game of gambling and other illegal activity. Landis refused to become the commissioner of baseball unless he was granted virtually total control over the game. So he got that power.
To give you a sense of its breadth, a former Commissioner once asked his attorney what the Ã¢â‚¬Ëœbest interest of baseballÃ¢â‚¬â„¢ clause meant. The attorneyÃ‚Â responded:
Ã¢â‚¬Å“It means anything you want it to mean, Mr. CommissionerÃ¢â‚¬Â
Commissioners have used the Ã¢â‚¬Å“best interest of baseballÃ¢â‚¬Â clause liberally since its inception. It wasÃ‚Â first used to permanently ban the eight players accused of throwing the 1919 World Series. In a demonstration of the clauseÃ¢â‚¬â„¢s power, Commissioner Landis banned the players before the trial even began Ã¢â‚¬â€œ and after a jury acquitted the players Ã¢â‚¬â€œÃ‚Â refused to reinstate them under the clause.Ã‚Â The clause has been used seventy times in seventy years. It was used to exile Pete Rose, repossess the LA Dodgers, anÃ‚Â even force outside lendersÃ‚Â to accept the sale of the Texas Rangers. The clause has precedent for suspending players who have usedÃ‚Â prohibited substancesÃ‚Â (although not PEDs).
What makes the use of this power so controversial in this circumstance is that while normal PED-related suspensions can be appealed to a neutral arbitrator, like we saw in the Ryan Braun case last year, it is generally believed that the use of the “best interest” power can only be appealed back to the Commissioner himself, effectively undercutting the players’ right to appeal. That’s why Wendy Thurm at FanGraphs referred to it last week as the Nuclear Option.
If Selig chooses to use the Ã¢â‚¬Å“best interest of baseballÃ¢â‚¬Â clause to enhance the punishments for Braun and Rodriguez, that decision itself can be appealed to the arbitration panel chaired by Horowitz. There is a precedent for this: Commissioner Vincent attempted to ban Yankees Pitcher Steve Howe after he was caught for his seventh drug related offense. An arbitrator overturned his decision.
Is Selig preparing to go nuclear on major league players this week? Maybe not.
Problems with using the clause for PEDs
First of all, Selig might lose if he tries it. Under this scenario, the MLBPA would not appeal specific suspensions, but instead argue that the Joint Drug Agreement should take precedence over the Ã¢â‚¬Å“best interest of baseballÃ¢â‚¬Â clause.
MLB would confront the fact that they negotiated the Joint Drug Agreement with the playersÃ¢â‚¬â„¢ union and it contains a specific grievance procedure for PED-related suspensions. Selig would have to explain to an arbitrator why he chose to not use the bilaterally negotiated procedure crafted for this exact type of disagreement. They also chose to not use the Ã¢â‚¬Å“best interestÃ¢â‚¬Â provision for previous PED related suspensions.
Although the Ã¢â‚¬Å“best interestÃ¢â‚¬Â clause is broad, when unions and management craft collective bargaining agreements, it is generally assumed the specific provisions act as implicit limitations on the more general contract language. The players and MLB have confronted this issue and designed a specific series of punishments and due process to deal with PEDs in baseball.
Second, given the credibility issues with Tony Bosch as the chief witness, and issues surrounding his cooperation with Major League Baseball, a neutral third party would find it difficult to uphold a procedure that denies the PlayersÃ¢â‚¬â„¢ Association a chance to cross-examine the witnesses and evidence. This becomes even more pressing when both sides crafted an agreement that directly calls for due process for such transgressions.
It seems unlikely that Selig would risk alienating the union by so blatantly circumventing the JDA.
Getting to “500 games” without going nuclear
Given these difficulties in imposing enhanced punishments, why are the rumors — further fueled by Weiner’s reference to “500 games” yesterday — so common?
That gets back to the non-testing provisions of the JDA. Baseball can punish players using four different provisions under the JDA: positive test results (50-100-life), participation in the drug trade (100-life), attempting to buy or possess PEDs (80-120-life),Ã‚Â and any other offense that violates the agreement.
ItÃ¢â‚¬â„¢s the fourth method, the Ã¢â‚¬Å“any other violationÃ¢â‚¬Â [Section 7(G)(2)] clause that grants MLB the power to suspend players for as many games as it deems Ã¢â‚¬Å“just.Ã¢â‚¬Â It is important to understand that this provision is not tied to the 50-100-life step processÃ‚Â related to positive test results.
Just as Michael Weiner stated, Selig has the authority to impose penalties from 5 games, to 500 games.
Selig could “stack” multiple violations of the JDA to enhance the penalties. Players could receive 150 games for the repeated use of steroids, 100 games for the participation in the sale or distribution of PEDs, 100 games for attempting to buy PEDs, and additional games for any other violation of the program.
Baseball can then use these stacked punishments to gain plea-bargain leverage that result in cooperation in future investigations or agreements where individual players give up their right to appeal their punishment. This explains reports from earlier in the week that Alex Rodriguez and Ryan Braun may be negotiating deals with MLB.
Bud Selig can do all of this without alienating the union by ignoring the JDA and invoking the Ã¢â‚¬Å“best interest of baseballÃ¢â‚¬Â clause. That’s what I think he’ll do.
When I was discussing this with Steve, he made the following remark: Eventually the United States developed such sophisticated conventional weapons they no longer needed nuclear ones.
It looks like baseball did, too.