So much of what I’ve been writing about and reacting to the past few days has been focused on what x, y and z mean for Alex Rodriguez. And, frankly, that’s getting close to played out. Meanwhile, Chris Needham — a dedicated reader/critic of mine (but a smart and well-intentioned one) — challenged me this morning to take on some issues I have not dealt with as much.
The background here is that Chris has often accused me of too often retreating to my comfortable territory of (a) fixating on due process issues in the PED debates; and (b) looking hypercritically at what Bud Selig and MLB do while not leveling the same level of scrutiny at the A-Rods of the world. He’s not wrong to make such accusations. Due process is my jam, so I write far more about that than anything. And given how large and loud the crowd going after the A-Rods of the world is, I’m naturally inclined to take the other side because I’m prone to being a pain in the ass contrarian at times. Knowing Chris as I do, I feel like he can at least appreciate that part of me.
But whatever can be said about all of that stuff, Chris does raise two very good topics of conversation. I’ll let him speak:
@craigcalcaterra all honesty, i’d be interested in 2 posts w your perspective: what should mlb have done in face of evidence;
— Chris Needham (@needham_chris) January 15, 2014
@craigcalcaterra and something about what a rank and file member would think/react to various events in this whole s**tshow
— Chris Needham (@needham_chris) January 15, 2014
Let’s talk about those things, shall we?
The “what should MLB have done in the face of the evidence against the Biogenesis players” thing touches on something Chris and I discussed yesterday about MLB’s behavior in the investigation. I and many others have criticized baseball for buying off Tony Bosch and getting in the mud to get the goods on A-Rod and others, but it’s easy to fire shots from the sidelines after the fact. A better question is what should MLB have done at the time?
Since there are a number of different acts in play here, I’ll answer in bullet point form to save everyone’s eyes and brain:
- I was highly critical of MLB’s lawsuit against Anthony Bosch which eventually coerced his cooperation. I still believe that, legally speaking, it was horrendous and that the Florida court was wrong to let it go forward. As a lawyer I make a different call than Bud Selig ultimately made in filing it because at the time I would have argued that it was likely to backfire and prove embarrassing for the league and because, ethically speaking, it skated close to abuse of process. But I will freely admit that I was wrong about the gambit’s ultimate success. It clearly was the game-changer in this case. But game-changer or not, I’d advise baseball that the “drug dealers are interfering with our contracts” strategy is not likely to be successful more often than it fails.
- Short of that, I would make whatever deal I could with Bosch in order to enlist his cooperation. Yes, it’s unseemly to get in bed with scum like Bosch, but I’m not sure how else you’re supposed to get the information you need to discipline players in circumstances such as his. Maybe I’m way less successful in getting a deal with Bosch if I don’t have the lawsuit hanging over his head. Maybe A-Rod buys his silence before I can buy his cooperation. But I do reach out and offer him legal indemnification and offer to buy his documents and try to persuade him that he wants to be on the side of the angels rather than the A-Rods.
- That said, as a bright line, I would not, if I were running Major League Baseball, have permitted my investigators to purchase the stolen Biogenesis documents. Maybe that costs me valuable information. Maybe that blows my case entirely. But I see no end result, including the possible failure to punish A-Rod, that is worth an organization under my command breaking the law, which I believe happened in this case. I also do my best to get better sourcing for the information my investigators obtained than guys named, simply, “Bobby.”
- If I don’t have evidence, it means A-Rod got to Bosch. And given the reporting of last spring and early summer, everyone knows it. I stake my case against A-Rod on the documents I had, hope that the arbitrator accepts them for what they are without Bosch’s authentication and — if I don’t have Bosch — try to cut as many deals as I can with other Biogenesis players, possibly including deals to get them to admit to the arbitrator that the stuff in those documents relating to them was true and hoping that he takes the leap that it was true with respect to A-Rod too. At the same time, I lean far more strongly on an obstruction of the investigation case against A-Rod and hope that what I can’t get him for on drug use I can get him for in disappearing Bosch.
So where does that leave me if I am running MLB? Maybe a weak case. Maybe A-Rod skates. But I can at least look at myself in the mirror and — more importantly — I can face the players and the union and have them know that I’m a straight shooter who is not willing to trample over ethical lines in order to nail one guy I hate. And I still make my public case against A-Rod, because people think he’s scum anyway. And, even if the case against him fails, I at least now have something I can go to the union and the players with: “this guy just made us all look like fools. Do we want that? I don’t. Let’s ratchet-up the drug testing and penalty program again.”
Ultimately, this is rooted in my belief that the ends do not always justify the means and that the end in this case — punishing a guy who everyone already thinks is a cheater and who is already near the end of his career — certainly aren’t worth the risks MLB took in this case, even if they did prevail on their many gambles.
As for the second question: what the rank and file should/would think after all of this? Well, that one is a little easier. Really three big takeaways. I touched on the first one back in July, but let’s flesh it out more.
- First, I think this whole affair sends the message that MLB is not content to sit back and wait for positive tests anymore. That, if someone is trying to sell me sophisticated, undetectable stuff that’s only part of the equation. Risk also comes from whether this guy is dealing with other players. Whether he’s himself compromised. Whether the police-style investigation that could come of this would prove embarrassing for me, even if it does only result in a suspension. Before they could only talk about my urine. Now they are willing to put my entire personal life — maybe even my sex life — out into the open if I’m in the crosshairs. A player who gets into PEDs now in the way most have before — via some guru/clinic he heard about from some other players who talked him up — is stepping into much more dangerous territory now than he was a couple of years ago. “MLB will get me and they will stop at nothing to do it” is something that has to enter my mind.
- Second, if I am a player who is clean, always will be, hates the cheaters and hates that players are so often suspected of cheating because of jerks like Bonds and A-Rod and those who came before, I’m happy about what just happened. Maybe A-Rod isn’t the only one who ever did anything and maybe Selig doesn’t deserve hero status in the PED arena, but I’d much rather they be the focus of all of this than some never-ending game of suspicion. And I’m happy that maybe, just maybe, people will stop assuming everyone is cheating and accept that most of us are honest athletes doing great things. And I’m especially happy that those of my colleagues who would cheat have something to be fearful of.
- Finally, once the dust on A-Rod settles and the conversation moves away from “piece of crap got what was coming to him,” I worry a little bit if I’m a major league baseball player. I worry that my league is willing to break rules and maybe the law to come after me if they want to. I worry — based on the difference in intensity between the league’s approach to A-Rod vs, say, Bartolo Colon — that if I become an unpopular or too-highly-paid figure that they may treat me differently than they do someone else. I worry that my union may make comments in public that come off less than supportive and, heck, I may even worry a bit that my union may not completely have my back in substance too. I also worry that we have a loophole in the drug testing system now where MLB can get substantially tougher penalties against me if I DON’T fail any tests than if I do, and that just seems crazy to me.
So, there we are. Some takeaways that aren’t a monomaniacal defense of Alex Rodriguez. Gosh, makes me feel all uncomfortable doing that. Quick — someone shoot me a link to an article in which some writer compares A-Rod to the Zodiac Killer. I need a fix.