The Arbitrator’s Decision: Creatively Counting to 150

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I’ve received a copy of the complaint Alex Rodriguez has filed in federal court seeking to overturn the arbitration decision against him and naming the MLBPA as a defendant as a result of their alleged failure to advance and aid in his defense. A full copy of the documents can be read here.

I have skimmed past the initial complaint allegations — many of them are repeats from his previous lawsuit against Major League Baseball and we’ll get to those in due time — and have gone down to the arbitrator’s decision in order to try to understand the basis for Rodiguez’s 162-game suspension. The breakdown: 150 games for violating the Joint Drug Agreement and 12 games for obstructing Major League Baseball’s investigation.

Following a lengthy recitation of the facts, the overview from the arbitrator is short and sweet:

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  • AROD’S VIOLATION OF THE JOINT DRUG AGREEMENT AND HOW THE ARBITRATOR GOT TO 150 GAMES FOR DRUG VIOLATIONS

The fact of a violation is laid out fairly painstakingly via the arbitrator’s review of the facts, as provided by Anthony Bosch and his records. Multiple contacts between Bosch and Rodriguez over a period of three years, during which Bosch provided multiple banned substances to him. How many? Three distinct ones, which becomes important to the penalty:

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Why is three important? Because each side and the arbitrator agreed that the standard 50 game/100 game/lifetime ban penalties only apply when there is a SINGLE violation, as evidenced by an actual positive drug test. When there is a pattern of use — say, of three substances across three years, the Commissioner can use “just cause” penalties and use his discretion:

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This is where I take issue with the arbitrator. Section 7(A) is not purely limited to a single positive test. It says this:

A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.

I would think that A-Rod is in the “or otherwise violates” camp and that 7(A) is still in play. 7(G), the just cause provision he moved under, is not invoked unless the violation is “not referenced” in section 7(A). I’d argue that “otherwise violates” is referenced there, but the MLBPA and A-Rod appear to have conceded the matter, so there we are.

But even the arbitrator seems uncomfortable with giving Selig a blank slate. He tries to look at the “guideposts” of the 50/100/life matrix in section 7(A) and sort of retrofit A-Rod’s drug use on to it. It’s a long passage, but it’s AMAZING. He says 7(A) doesn’t apply, so we go elsewhere, but if 7(A) DID apply, we’d be able to stack up 50-game penalties against A-Rod because he used three things:

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Never mind that the Neifi Perez case did not involve HGH or testosterone, it involved stimulants, which are treated quite differently. Never mind that other Biogenesis players — specifically Bartolo Colon and Melky Cabrera — were not given multiple levels of discipline because, according to baseball, they already did their time, as it were.  This seems remarkably shaky to me. It is a new way of approaching drug discipline that just so happens to achieve Major League Baseball’s desired result of a lengthy suspension.

Major League Baseball actually argued for a lifetime ban here, saying that if A-Rod had three distinct offenses he’d get a 50, a 100 and a lifetime stacked on top of each other. That actually makes more sense to me. After all, if a player who got a 50 game test suspension last year tested positive for a different substance tomorrow, he’d get 100 games. There would not a be a 50 game suspension because it is a different substance, which is what the arbitrator is basically doing here. In essence, the arbitrator is going lighter on A-Rod than the logic he actually subscribes to would have him do. It would at least be intellectually consistent for him to ban Rodriguez for life.  The arbitrator was obviously loathe to do that. But if the logic train he followed drove him off a cliff, maybe he shouldn’t have followed that logic train in the first place. Maybe he shouldn’t have tried to invent his own standard.

  • ANTHONY BOSCH’S CREDIBILITY: POOR, BUT NOT FATAL

As for A-Rod’s attacks on Bosch’s credibility, the arbitrator was not impressed. He took notice of the fact that Bosch was a scumbag who sold drugs, lied about his credentials and contradicted his own story multiple times in the runup to the hearing. But, even with that in mind, Bosch’s testimony was corroborated and was not contradicted:

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Much of the corroboration came via text messages between Rodriguez and Bosch. Blackberry text messages. The richest player in the history of baseball uses a Blackberry. Think about that for a bit.

  • A-ROD’s OBSTRUCTION OF THE INVESTIGATION

Major League Baseball has spent a lot of time and energy trying to establish that A-Rod obstructed the investigation, sought to buy or destroy evidence and, if you believe Bosch himself on “60 Minutes” last night, tried to threaten and intimidate him or, at the very least, tried to shoo him out of the country for a while.  The arbitrator did not buy most of this, it seems. He focused instead on A-Rod denying he knew Tony Bosch and trying to get Bosch to lie:


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I think it’s safe to say that Major League Baseball’s claims of A-Rod’s awful obstruction were greatly overstated. And, in light of what MLB did to obtain evidence, it acted in a far more shady manner than A-Rod did.

  • BREACHES OF CONFIDENTIALITY OF THE DRUG PROGRAM

There was a brief discussion of the confidentiality violations of the parties. Leaks to the media and press conferences and things during a process that is supposed to have everyone quiet and respectful of what is, by design, a secret proceeding.  The arbitrator basically threw up his hands here, noted that both sides did it all the time, that he couldn’t do anything to hunt down the leaks in anything approaching a timely manner and that, ultimately, it didn’t matter because the leaks and things did not affect his decision.

That actually seems pretty smart. No one did well in this department.

  • CONCLUSION

So that’s the first pass here. It’s hard to disagree with the arbitrator’s finding of some violation. It’s clear that the obstruction evidence presented by Major League Baseball was not terribly persuasive to him, as it amounted to only 12 games on top of the 150-game suspension. Finally, it’s clear to me that the 150-game suspension was based on, at the very least, a unique interpretation of the Joint Drug Agreement.

I believe, ultimately, that Major League Baseball will win the lawsuit A-Rod filed today as his best arguments are one of interpretation of the Joint Drug Agreement, and that is not enough to cause a court to overturn an arbitration. But I do believe that the arbitrator’s interpretation of the JDA was unsound and that the result — suspending Alex Rodriguez for a long time — was the tail that wagged the dog of his legal interpretation.  That’s what Major League Baseball wanted. It’s what the arbitrator felt he should get.  And he found a way to make it happen.

A way I do not believe anyone else ever considered before. Or, for that matter, should have.

What in the heck is Derek Jeter doing with the Marlins?

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Last night we linked the Miami Herald story about the Marlins firing special assistants Jeff Conine, Andre Dawson, Tony Perez and Jack McKeon. Let’s talk about that a little bit.

The firings themselves are eyebrow-raising inasmuch as “special assistants” like that are rarely key front office personnel. Former players, Hall of Famers and former managers like those guys are really ambassadors for the team and, particularly in the case of Jeff Conine, who is known as “Mr. Marlin,” why would new ownership want to kick its ambassadors to the curb? It’s not like you can just hire a bunch of new franchise legends for he role. Who ya gonna call? Dan Uggla?

Sure, I can see an argument for changing their responsibilities. If they actually had say in baseball operations, I can see new ownership wanting to relieve them of those duties. It’s also possible that Jeff Loria paid them too much money for guys who are only team ambassadors. So, sure, if the job is too cushy by the standards of the gig, I could see Jeter cutting their pay or their duties to make it conform to what other clubs do with their former stars. Maybe that makes them want to quit. If so, that’s OK I suppose.

Beyond that, however, it’s hard to see why you would NOT want guys like Conine, Dawson, Perez and McKeon to represent your club in the community and in the service of impressing prospective season ticket holders. The franchise’s first star player, a Hall of Famer who ended his career with the club, another Hall of Famer who is from Cuba (which is kind of a big deal in a place like Miami) and the manager who brought the club its last World Series championship are exactly who you want to represent your team. Especially when nearly everything else about your team has, for so very long, alienated the very public you want supporting it.

But let’s say, for the moment, that there was a good reason to fire those guys. Let’s say they’re all flaming jackwagons who have secretly poisoned the franchise from within. Let’s say that, despite his grandfatherly charm, Jack McKeon is a ruthless Machiavellian. Let’s say that Conine, Dawson and Perez beat up copy boys in the stairwells and microwave leftover fish in the break room every day. Even if that’s the case, how does this happen?

And here’s the twist: Jeter asked Marlins president David Samson to fire those four Marlins luminaries for him, because Jeter didn’t want to do it.

Even more strange, Jeter made the request after telling Samson what he already knew: that Samson would not be returning as team president.

It seems that Samson did carry out the firings. Unless some handsome severance package was being held hostage over it, I’m not sure how Samson doesn’t tell Jeter, “Hey Captain RE2PECT, know what? Up yours, you do it yourself.” Of course, one can only project one’s own sensibility on a guy like David Samson so much, so let’s cut him a bit of slack here. We don’t know how the conversation went. Maybe Samson was happy to tell those guys to hit the bricks.

But really, how doesn’t Jeter man-up and handle this himself? It’s not because he’s not yet officially the owner, because if he has the power to fire Samson, he has the power to fire Conine and his friends. Maybe there is more to this than the Herald story lets on, but as it stands now, it comes off as cowardice on Jeter’s part. It’s a really bad look.

I’ll be curious to see how this plays in the baseball establishment over the next couple of days. Everyone — particularly the press — loves Derek Jeter an credits him with a class, smoothness and media savvy matched by few others. This, though, was either (a) a failure of class and an act of disrespect to baseball luminaries; or (b) a complete bungling of public relations, serving to make what was, in reality, a reasonable move appear classless. It has to be one or the other.

Derek Jeter has been a teflon star for more than two decades, but two of the few things the media loves more than Derek Jeter are (a) old Baseball Men like McKeon, Dawson, Perez and Conine; and (b) “classiness.” It’ll be interesting to see if, for the first time in his professional life, the media gets its knives out for Derek Jeter for seeming content to dispense with both.

Dodgers top Giants, clinch fifth straight NL West title

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The Dodgers are NL West champions for the fifth time in a row. They clinched with a 4-2 win over the Giants on Friday night, taking their first and only lead on a mammoth record-breaking home run from Cody Bellinger in the third inning.

Rich Hill turned in another quality start, going six innings with five hits, a run and nine strikeouts to keep the Giants at bay. He tacked on an RBI hit of his own, too, lashing a double to left field for his first extra-base hit since 2007.

The Giants, meanwhile, deployed Jeff Samardzija and his 4.42 ERA for 4 1/3 innings. Samardzija was on the hook for the Dodgers’ four-run spread in the third and took his 15th loss of the season. Pablo Sandoval came through with a solo home run in the ninth, but the rest of San Francisco’s offense wasn’t so lucky against Kenley Jansen, who struck out the side to clinch the game — and the division.

After Friday’s showstopper, the Dodgers are just two wins away from their first 100-win season since 1974. If they win the remaining eight games of the season, they’ll beat out the 1953 Brooklyn Dodgers for the most wins in franchise history.