A-Rod PED Scandal Goes On … And On

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On Monday, Major League Baseball suspended Alex Rodriguez and 12 other players in connection with their use of performance enhancing drugs obtained from the, ahem, wellness clinic Biogenesis run by Anthony Bosch. Ryan “I would bet my life that this substance never entered my body” Braun was already suspended a few weeks ago. The Miami New Times first broke the Biogenesis story in January 2013. MLB began an investigation immediately, but the paper wouldn’t turn over its supporting documents to MLB. Bosch, of course, denied everything at first. So MLB shrewdly filed a lawsuit against Bosch – on a tortious interference theory of liability – and Bosch folded. The director of the “wellness” and “anti-aging” clinic cooperated with MLB and disclosed his damning documents.

The Joint Drug Agreement between the Commissioner’s office and the Major League Baseball Players Association expressly provides that a player who fails a PED test will be suspended. That’s a no brainer. But none of the 14 suspended players failed a drug test.  So what’s the basis for the suspensions?  The Joint Drug Agreement’s “just cause” provision. That provision states that a player “may be subjected to disciplinary action for just cause by the Commissioner” even though the player doesn’t fail a drug test. In other words, players can be suspended on the basis of circumstantial evidence; direct evidence (i.e. a failed drug test) is not needed. This isn’t a novel idea. Civil suits and criminal cases operate on the same principles: you don’t need an eyewitness to a crime (direct evidence) to convict; you just need something like a motive or the accused’s presence at the crime scene (circumstantial evidence).

In addition to the just cause suspension, A-Rod and Braun have also been suspended pursuant to the “best interests of baseball” provision found in baseball’s Basic Agreement.  Under that provision, a player can be suspended for “conduct that is materially detrimental or materially prejudicial to the best interests of baseball …” Therefore, while most of the Biogenesis bunch received 50-game suspensions for first-time Joint Drug Agreement violations, A-Rod and Braun were gifted with harsher penalties of 211 games (the rest of this season and all of next) and 65 games (the rest of this season), respectively, for their dual violations of the Joint Drug Agreement and the Basic Agreement.  The conduct triggering the best interests of baseball provision for A-Rod was his attempt to cover up his years-long PED use by obstructing MLB’s investigation. For Braun, it was presumably his despicable conduct after testing positive for PEDs in 2011, namely, going way out of his way to lie and defame the urine sample handler whom Braun falsely accused of tampering.

Suspended players have the right to appeal through arbitration. A-Rod is the only one of the Biogenesis 14 pursuing an appeal.  After all, he stands to lose over $34 million of the $100 million remaining on his insane $275 million contract.  MLB and A-Rod will present their arguments and evidence to an arbitrator, who will decide whether the suspension is too stiff and whether the evidence is sufficient to warrant a suspension.  A-Rod is allowed to play during the appeal process. “Mr. Rodriguez,” as the Yankees have taken to calling their old, broken 3rd baseman, could also sue MLB, the Commissioner, and possibly even the Yankees themselves. If he sues now before the arbitration hearing, he would probably lose on ripeness grounds because the arbitration should be allowed to run its course before suit is filed. If he sues after losing at arbitration, he would probably still lose the lawsuit because the court would give deference to the arbitration decision.  In other words, Rodriguez’s entire future in baseball is probably riding on the arbitration ruling handed down in response to his appeal.

One last thing: two of the suspended players are minor leaguers in the Mets organization. Sadly, even our cheaters are no good.

Answering the legal questions raised by the Biogenesis scandal

A legal look at A-Rod’s appeal

Analyzing the legal fallout from Alex Rodriguez’s 211 game suspension

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