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MLB, MLBPA announce stronger testing, harsher penalties for PEDs

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In the wake of the Biogenesis scandal and Alex Rodriguez’s subsequent 162-game suspension, Major League Baseball and many of its players have called for tougher drug testing and harsher suspensions for violations of baseball’s drug policy.

They just got it.

Major League Baseball and the MLBPA have announced that they have reached agreement on changes to the drug testing program which enhance testing procedures and increase penalties for taking PEDs.

The enhanced testing procedures

  • The number of in-season random urine collections will more than double beginning in the 2014 season, from 1,400 total tests to to 3,200;
  • Blood collections for hGH detection will increase to 400 random collections per year, in addition to the 1,200 mandatory collections conducted during Spring Training;
  • Carbon Isotope Ratio Mass Spectrometry tests will be randomly performed on at least one specimen from every player. Basically, this is an enhanced analysis of blood samples which are considered more effective in detecting hGH in blood and are tests endorsed by the World Anti-Doping Agency.

The enhanced punishment

  • A first-time violation of the Joint Drug Program will now result in an unpaid 80-game suspension, increased from 50 games.  A player’s second violation will result in an unpaid 162-game suspension, increased from 100 games.  A third violation will result in a permanent suspension from Baseball.
  • A suspension of 162 games will result in 183 days worth of pay docking, to account for the fact that players are paid baed on a 183-day schedule as opposed to being paid per game. This was implemented in reaction to Alex Rodriguez still receiving some pay this year despite a 162-game ban.
  • Every Player whose suspension for a performance-enhancing substance is upheld will be subject to six additional unannounced urine collections, and three additional unannounced blood collections, during every subsequent year of his entire career.

MORE: To read the full summary of the MLB-MLBPA joint drug program modifications, click here

There are also some advantages to players under the new system. Specifically, if a player tests positive, he can argue to an arbitrator that his use of PEDs was not intended to enhance performance. This changes things from the “zero tolerance” policy which previously existed and under which someone faced first-time discipline even if their PED use was accidental.

Additionally, the league and the union are creating a safe harbor of sorts: they have established a program in which players will have year-round access to supplements that will not cause a positive test result. This should reduce confusion on banned over-the-counter substances and reduce the use of the “I got this from GNC and thought it was OK” defense many have raised in the past.

Many anti-doping experts already viewed Major League Baseball as having the toughest drug testing regime in all of U.S. team sports. This only increases baseball’s lead in this regard.

It does, however, present some reasons for concern. As we at HBT argued this morning, the playoff ban for those players who tested positive and have already served their entire suspensions seems somewhat draconian and will result in harsher penalties for players on winning teams than those on losing teams. It also punishes innocent players on playoff teams in ways the previous system did not before. Moreover, merely adding games to first and second offenses may make everyone feel like the system is tougher, but it must not be assumed that the same basic incentive to cheat — if a player can get away with it, it could mean millions of dollars — will always persist. We execute murderers yet murder still occurs.

At the same time, the strengthening of the drug testing procedures and the implementation of the supplement supplies is most welcome. If the players in the Biogenesis investigation had been caught via testing, no one would have thought of that episode in baseball as a particularly black mark and a year’s worth of bad publicity and litigation would not have been necessary. The best way to cut down on PED use in baseball is to catch the guys who cheat, not to try to make up for testing failures with harsh rhetoric and tactics after the holes in the drug testing system are exposed.

Either way, this is a significant increase in the strength of the drug testing program and will likely be met with overwhelming praise by players, fans, the media and the clubs.

Adams homers in 16th to lift Cardinals over Dodgers 4-3

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ST. LOUIS — Matt Adams homered in the 16th inning to lead the Cardinals to a 4-3 win over the Los Angeles Dodgers on Friday night for St. Louis’ season-best fifth straight victory.

It was the second consecutive game that the Cardinals won in their final at-bat. They beat the Padres on Thursday after scoring a run in the ninth inning.

Adams homer came with one out off Bud Norris (5-9), who gave up six runs as a starter in an 8-1 loss at Washington on Wednesday.

Seth Maness (1-2) picked up the win with a scoreless inning of relief for St. Louis, which was playing its longest game of the season.

Jedd Gyorko hit a two-out homer off closer Kenley Jansen in the ninth to tie the game 3-3.

Justin Turner and Howie Kendrick homered for the Dodgers. Los Angeles has lost four of six. The red-hot Turner has seven homers and 17 RBI this month. He hit two homers in a 6-3 win over Washington on Thursday.

Turner blasted his career-high 18th homer of the season off Seung Hwan Oh in the ninth to break a 2-2 tie.

Corey Seager had four hits and drove in the first run of the game. He had hit in seven successive at-bats before flying out in the ninth.

Kendrick’s solo shot in the sixth tied the game 2-2. He has hit in 14 successive games trying Colorado’s Charlie Blackmon for the longest current streak in the majors.

Los Angeles starter Brandon McCarthy allowed one hit and two runs over 6 1-3 innings, the longest of his four starts this season. He left with leg cramps. McCarthy struck out four and walked three.

St. Louis starter Michael Wacha allowed two runs on 10 hits in six innings. He struck out four and walked one.

Dodgers reliever Adam Liberatore recorded his 28th successive scoreless outing by retiring two of four batters in the seventh. He has not allowed a run in 41 of 42 appearances this season.

Minor League Players’ Wage Suit against Major League Baseball suffers a huge setback

The judge's gavel is seen in court room 422 of the New York Supreme Court at 60 Centre Street February 3, 2012. REUTERS/Chip East
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A judge handed minor leaguers looking to hold Major League Baseball liable for underpaying and exploiting them a huge setback today, ruling that the case cannot go forward as a class action. Minor leaguers who want to sue over their pay and treatment still can, but they’ll have to do it individually. The ruling saps the minor leaguers of their leverage, as Major League Baseball would likely be able to fend off individual cases which, by themselves, might only amount to several thousand dollars per claim.

The background: in 2014, former Miami Marlins player Aaron Senne sued Major League Baseball, Bud Selig, and three major league clubs claiming that minor leaguers are underpaid and exploited in violation of the Fair Labor Standards Act. He was later joined by former Royals minor leaguer Michael Liberto and Giants farmhand Oliver Odle. Eventually others joined and the suit had been expanded to 22 teams as defendants.

The upshot of the case is that, while the minor league season lasts only part of the year, players are required to do all sorts of things outside of merely playing games for which they are not compensated. Training, meetings, appearances and the like. When all of that time is added up, the players claim, their already low salaries are effectively far below minimum wage in violation of the law. Major League Baseball has countered this by claiming that minor leaguers are basically part time seasonal workers — like landscapers and pool boys — who are not subject to federal labor laws.

Last year the judge gave the case conditional certification, allowing the players to try to establish that it should go forward as a class action. This would streamline the case from the plaintiffs’ perspective and give them the power of collective action by asserting hundreds or more similar cases into one proceeding. The judge’s ruling today, however, was that the cases really weren’t factually similar and thus collective action was not appropriate because figuring out how many hours each player worked and what was required of him varied too greatly among the players.

From his order:

“The difficulties associated with determining what activities constitute ‘work’ in the context of winter training are compounded by the fact that there appear to be no official records documenting these activities. Because it may be impossible to determine from official records the types of conditioning activities in which the players engaged, membership in the state classes based on winter training would depend largely upon the players’ ability to remember, with a reasonable amount of detail, what they did during the off-season (often for multiple years and for many, several years in the past) to stay fit.”

The judge said that, in light of this, each case would be unique and would require “individualized inquiries” to find damages and liability. That phrase –“individualized inquiries” — constitutes magic words which sink would-be class actions. If a company overcharges all of its customers by $8 due to an error repeated a million times, it’s easy to look at one set of facts and judge them together. If you had to look at a million different wrongs, that’s no class action. And so it is not a class action for the players.

As many courts who have dealt with these sorts of cases have noted, for many plaintiffs, a class action is the only practical method of adjudicating Fair Labor Standards Act cases because individual plaintiffs are frequently unable to bear the costs of separate trials. They are, by definition, (allegedly) exploited workers. They’re not going to be able to pay legal costs and fight off a multi-billion dollar business in order to collect the few thousand dollars they were underpaid. At the same time, however, the defendants have rights too and, if the facts of each players’ treatment truly differ (e.g. the Yankees make their minor leaguers do more than the Brewers do) it’s not fair to bind one defendant’s defense to the acts of another.

So, where does this leave the players? Not dead. Not yet, at least. Their claims have not been dismissed on the merits. They have only been denied the right to act collectively. The individual plaintiffs can now file separate lawsuits against their former employers and Major League Baseball under the same theories. It would be harder to land a big blow in such a scenario, but if enough do, it could end up being death by a thousand cuts for the clubs and the league. Their legal fees might go up and, eventually, if they lose enough of these cases, more might be filed. There are a lot of former minor leaguers, after all, and once there’s some blood in the water, more of them — and their lawyers — may enter the frenzy. Decertification is certainly a win for the league right now, but it’s not necessarily a permanent win.

There are likewise some other quasi-collective forms this case could take such as multi-district litigation in which the cases, while individual, are coordinated in a loose fashion. That could lead to some efficiencies for suing players even if it’s not as robust as a class action.

We’ve written quite a bit about minor league pay and treatment in this space by now, so you probably know where we stand on it. We believe that minor leaguers are exploited and underpaid and we believe that Major League Baseball has been happy to exploit and underpay them for some time. Ultimately we believe that this state of affairs cannot and will not persist and that eventually, somehow, baseball will either see fit to pay its workers fairly or, more likely, will be forced to do so by a court or by collective bargaining of some fashion.

Today, however, was a big setback for the minor leaguers. Today’s ruling will give Major League Baseball and its clubs more time and more comfort in which to underpay them. There’s no doubt about it.