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.

Joe Morgan is asking Hall of Fame voters to keep PED users out

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Hall of Famer Joe Morgan has never equivocated on his belief that users of performance enhancing drugs should not be allowed into the Hall of Fame. Whenever he has been interviewed on the subject he has been steadfast in his stance that PED users are not worthy of induction.

This week he has taken a further step: he has sent a letter to all of the Hall of Fame voters, asking them to keep PED users out.

In his letter — the entirety of which you can read over at Joe Posnanski’s blog — Morgan says “if steroid users get in, it will divide and diminish the Hall, something we couldn’t bear.” By “we,” he’s clearly referring to Hall of Fame members. While he does not name any player he would like to see voters keep out, he spends a lot of time talking about how PEDs are bad for baseball, PED users cheated the game and how he and many other Hall of Famers do not want to see them elected. He invokes “youngsters” and refers to the Hall of Fame as “special” and speaks to the “sanctity” of election. It’s the moral argument against PED use we’ve been hearing for a good 15 years or so.

It’s also hopelessly naive and comes far too late in the game to be a useful plea.

As we’ve noted many, many times, there are already PED users in the Hall of Fame. Amphetamine users to be sure, but even if you want to give them a pass, there are steroid and/or HGH users too. In case you forgot about that, allow me to remind you about the time Hall of Fame voter Thomas Boswell appeared in Ken Burns’ “Baseball” documentary update “The Tenth Inning” and explicitly said that he personally witnessed a current Hall of Famer drink a PED-laden shake:

“There was another player now in the Hall of Fame who literally stood with me and mixed something and I said “What’s that?” and he said “it’s a Jose Canseco milkshake”. And that year that Hall of Famer hit more home runs than ever hit any other year. So it wasn’t just Canseco, and so one of the reasons that I thought that it was an important subject was that it was spreading. It was already spreading by 1988.”

Boswell tends to keep pretty silent about that come Hall of Fame voting time in December, but he has never backed off the claim either.

Less reliable, but still never refuted, were the stories of Patty Blyleven, former wife of Hall of Famer Bert Blyleven, who said that she knows of a Hall of Famer who took PEDs as well, and who continues to nonetheless publicly rail against PED use. There are likewise other Hall of Famers of whom baseball writers are strongly convinced — or know for a fact — took PEDs but about whom they’ve never reported because no one would go on the record about it or corroborate it in a way that satisfies prevailing journalistic standards. Go ask a BBWAA member about why it took Jeff Bagwell so long to get into the Hall of Fame. Or simply go back and read what they said about him a few years ago.

Going beyond those cases are the cases of a host of players — players who have been on the ballot for years —  about which we’ll never, ever know. Do we know for sure that any of the guys currently on the ballot who played before drug testing never took PEDs? Of course not. In light of that all Morgan can ask is for voters to keep players of an entire era out. Which is a completely unreasonable and unfair request.

In the absence of guidance from the Hall of Fame or Major League Baseball, BBWAA voters were somewhat inconsistent with alleged PED users for a time, but they’re beginning to coalesce around a set of rough standards:

  • If you tested positive for PEDs or were disciplined for PEDs after the testing program was fully online like Manny Ramirez and Rafael Palmeiro did, you’re not getting in. Figure Alex Rodriguez will fall in this group one day too;
  • If you were strongly and convincingly associated with PEDs in the pre-testing era like Barry Bonds and Roger Clemens, the road you have to go down is going to be pretty bumpy, but you may, possibly, get in one day if you were an overwhelmingly great player;
  • If you were seen as one-dimensional like Mark McGwire or Sammy Sosa and either admitted to PED use or were suspected of it, welp, sorry. We’ll leave why Sosa is suspected of it to another post.

All of this is will likely change slightly over time. Bonds and Clemens have recently gotten over the 50% voting threshold and could gain some steam with the voters. Alex Rodriguez was good enough and his post-career image rehabilitation has been such that he may get more support than most post-testing PED guys one day. Maybe McGwire and Sosa will get new looks down the road by some iteration of the Veteran’s Committee. After that, there aren’t a lot of guys who are seriously in the Hall of Fame discussion with credible PED claims against them.

Which is to say that history is sorting itself out, for better or for worse. Sorting itself out in a way that renders Morgan’s views on the matter — whether you consider them well-founded or otherwise — too little, too late and, given what we know and do not know about PED users, rather useless.