The Arbitrator’s Decision: Creatively Counting to 150

70 Comments

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:

source:

  • 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:

source:

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:

source:

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:

source:

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:

source:

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:


source:

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.

And That Happened: Wednesday’s Scores and Highlights

Getty Images
1 Comment

Here are the scores. Here are the highlights:

Indians 12, White Sox 0: The Indians gave Corey Kluber 12 runs of support which, c’mon, that’s a bit of overkill, innit? To make it fair they should be forced to begin all Corey Kluber starts with, like, negative three runs. Or make him pitch with his left hand or something. As it was, he allowed one hit over seven shutout innings. Jason Kipnis and Jose Ramirez each homered and drove in three. The entire Cleveland team was then referred to The Hague for crimes against compassion.

Yankees 7, Mariners 5: Seattle had to feel pretty dang good being up 5-0 after their half of the fifth inning. They shouldn’t have. New York clawed back with two on an Aaron Judge RBI single in the bottom half, got one more with a Didi Gregorius sac fly in the seventh and then Gary Sanchez tied things up with a two-run shot in the eighth. Then, with two outs in the bottom of the ninth and extras looming, Gregorius reached base and Giancarlo Stanton reached for the lumber:

Ballgame.

Note: if you get annoyed at the concept of who is a “True Yankee” and who is not a “True Yankee” or the larger notion that players who join the Yankees don’t really become part of the team until they’ve delivered some sort of signature moment, you may want to avoid all coverage of the Yankees today, because it’s only 6:30AM and I’ve already seen like five different articles and video features playing that jazz.

Blue Jays 5, Braves 4: J.A. Happ‘s audition for contending teams continued, as he wins his fifth straight start, almost going the distance in doing so. He wasn’t sparkling — he allowed four runs and six hits — but he didn’t walk anyone and struck out eight dudes. Between that and the long start, it’s as if Toronto is showcasing him in a window display with the words “traditional workhorse, nothing flashy but built solidly” written on the glass. “Go ahead, take him for a spin,” the salesman says. “I’ll be talking to my manager to see if I can get you his best deal!”

Phillies 4, Cardinals 3Odubel Herrera hit a go-ahead solo home run off of Cardinals reliever Sam Tuivailala in the bottom of the seventh inning and the bullpen actually showed up to hold that lead, allowing the Phillies to go home with the W. Herrera has now homered in four consecutive games and in five of his last six. Which, if my experience with Philly talk radio is still up-to-date, means that only 60% of the callers will be complaining about Herrera’s “work ethic” and “hot dogging” today instead of the usual 85%.

Cubs 4, Dodgers 0: Jon Lester was fantastic, twirling seven shutout innings. Kyle Schwarber went deep and a couple of RBI singles and a fielder’s choice later this one was in the books. Javier Baez had two doubles and a triple, scored a run, stole a base and flashed some decent leather. He just needed to get hit by a pitch and, I dunno, sing the National Anthem to fill up every column of the scorecard. They have that on the scorecard, right?

Reds 5, Tigers 3: The Tigers led early and held the Reds to only two singles for the first five innings, but back-to-back homers from Scooter Gennett and Eugenio Suarez, followed by a later dinger by Adam Duvall, put Cincy over. Tyler Mahle won his fourth start of the month. It’s not a riveting competition, but he’s been the Reds’ best starter this year.

Athletics 12, Padres 4: Petco Park in San Diego is known as a pitcher’s park, but the ball flies there during day games before that marine layer rolls in. That was the case yesterday as the A’s hit five homers, going back-to-back twice. Franklin Barreto, Josh Phegley, Mark CanhaMatt Olson and Jed Lowrie all went deep for Oakland. Barreto and Phegley went back-to-back in the second, each hitting their first dinger of the season. Canha and Olson went back-to-back in the third.

Giants 6, Marlins 5Brandon Belt had three hits Gorkys Hernandez hit a two-run single during San Francisco’s five-run sixth inning and no one threw at anyone and no benches cleared. How refreshing. The Marlins behaved themselves and it’s almost as if the Giants realized that it’s not worth getting players injured just to protect the misguided notions of honor espoused by notorious red-ass Hunter Strickland.

Orioles 3, Nationals 0: Andrew Cashner and four relievers combined on a five-hit shutout and Mark Trumbo hit a two-run blast. There was a long rain delay here which chased Cashner after four and, if it had been longer and wetter, might’ve washed out the game entirely before it was official. The Baseball Gods have not smiled on the O’s much this year, but they at least did them this one solid and let this one resume.

Twins 4, Red Sox 1: Lance Lynn allowed only an unearned run in five innings and four relievers allowed the Red Sox bupkis over the final four. Max Kepler hit a two-run homer, Robbie Grossman hit a solo shot and Brian Dozier doubled in a run. The Twinkies have won four of five.

Astros 5, Rays 1: Charlie Morton allowed only an unearned run in six innings and three relievers allowed the Rays bupkis over the final three. Jose Altuve hit a homer, Jose Altuve also hit a solo shot and George Springer and Alex Bregman each homered. The Astros have won four of five.

Yeah, the games sometimes blend together for me. Sorry.

Rangers 3, Royals 2Austin Bibens-Dirkx — pitching to similarly hyphenated catcher Isiah Kiner-Falefa — pitched excellently into the seventh inning and Rougned Odor homered to give the Rangers their fifth straight win. The Royals lose for ninth straight time.

Rockies 10, Mets 8: Same score as Tuesday night. In this one New York led 3-0 at one point but such leads are meaningless at Coors Field, especially early. After blowing that they led once again — 8-6 in the fifth — but Ryan McMahon‘s three-run homer put the Rockies back on top to stay. These two teams have combined for 50 runs in three games. They still have one more to play in this series today. Everyone be aware of the location of your nearest fallout shelter.

Brewers vs. Pirates — POSTPONED:

The rain is falling through the mist
Of sorrow that surrounded me.
The sun could never thaw away
The the bliss that lays around me.

Let it rain, let it rain,
Let your love rain down on me.
Let it rain, let it rain,
Let it rain, rain, rain.