Tag Archives: Biogenesis

Alex Rodriguez Sues Bud Selig, Updated

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Alex Rodriguez has filed new law suits in New York State Court. The first suit names Bud Selig, MLB, and the Office of Commissioner and the claims made are numerous and suggest a pattern of conduct that is troubling if true.  A second suit was filed againsst the Yankees’ doctor and a hospital for mis-diagnosing a hip injury in 2012.  I will not consider that suit in this article.

The main case, Alexander Emmanuel Rodriguez, plaintiff v. Major League Baseball, Office of Commissioner of Major League Baseball, and Allan Huber “Bud” Selig, defendants, was filed in the County of New York on October 3, 2013.  My cursory examination of the case reveals that it is an attack on Bud Selig’s tenure as Commissioner. It says Selig condoned illegal drug use when it was useful to him and then was against it when that position was deemed beneficial.  In Section B of the law suit, (page 6), the heading is The Disastrous Tenure of Commissioner Selig. The suit describes the collusion scandal, the PES scandals, the Mitchell Report alledging lack of supervision and failure to see early warning signs of drug use. It then states that the Rodriguez case, indeed the entire Biogenesis case, is an effort by Selig to reinvent himself and create the myth of his being the savior of baseball.  Selig has announced his retirement in 2014.

Lester Munson at ESPN has besmirched the law suit as being insubstantial because of the tortious interference claim. Munson claims tortious internference is the least of the tort claims. I don’t know where he gets his advice, but it is very different from my experience that makes a tortious interfernce claim very real and dangerous for the defendant.

There will be a lot of information about this case, but it is very dangerous for Baseball and for Bud Selig. The outcome will be based on the evidence Plaintiff has, and, from what I have read today, they have done a lot of homework.

Update: The first issue to be decided in this case is whether the court has jurisdiction over the matter or whether the Grievance Procedure in the collectively bargained agreement controls. If the later is the case, Rodriguez must follow that course.

MLB, New York Yankees, and the Alex Rodriguez Drama

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The baseball world is waiting for the long anticipated release of the names and penalties to be assessed against MLB players who obtained performance enhancing drugs from the Miami clinic, Biogenesis. None of the players failed drug tests, as all charges are based on non-analytical positive evidence such as oral testimony, emails and records obtained from Biogenesis.

Alex Rodriguez is the most well known of the players, but Jhonny Peralta, the Tigers shortstop, is thought to be one of them and the Tigers have already traded for a replacement, but back to ARod.  This is the most interesting case as he admitted steroid use while with Texas and has been accused of such behavior before the Genesis deal. He is said to have recruited players for Biogenesis, which is another crime, as they say.

ARod could face a lifetime suspension, so he is trying to negotiate with MLB for a lesser sentence. It was said today, that MLB is not negotiating so much with ARod as they are negotiating with the Yankees. This raises interesting issues that I find troubling. The evidence is in and MLB has it. It must apply the rules to all players and do so without inquiring of the player’s team as to what it wants to achieve. For example, say the Yankees say “we want him for the rest of this year, but want his remaining $100,000,000 contract blocked for life.”  That would mean that MLB would suspend     Arod for life, but, because he can appeal his suspension, he could play next week.  Similarly, other teams may want the player, Peralta, for example, could appeal a suspension and finish the season, or accept a fifty game suspension and be eligible for post season. The timing of this is not by chance!

If Arbitrator Horowitz upholds a life time suspension, both the Yankees and MLB win. If he limits the suspension to a year, for example, ARod wins, and MLB’s drug testing program is impeded as to future suspensions. In this decision, the Arbitrator will look at other lifetime bans, Pete Rose and Shoeless Joe Jackson, for gambling, for example. I believe that gambling is an attack on the underlying integrity of the game and is the most serious offense against the game as that directly effects the outcome of the game, and has a negative impact on fans who want to trust the outcome is legitimate. This is not to diminish the PED effect, but the Arbitrator will also look to other drug cases, Steve Howe for example, where a lifetime ban was overturned by Arbitrator Nicolau, because MLB did not offer drug treatment. (Howe’s drugs of choice were primarily cocaine and marijuana.)

There is another factor in the ARod case. The Commissioner has power to by-pass the appeals process and suspend for life “to protect the integrity of the game.” Here the risk is that a court (or an arbitrator, I will have to check the proceedural rules) will find the penalty excessive and over turn it.
Furthermore, and this may be the most important factor, is that taking away a player’s appeal rights that exist in the basic union contract is to invite war with the Player’s Association which had been compliant with the suspensions as long as suspension appeal rights were not limited. This could be very damaging.

All in all, this will be a very interesting week. ARod will appeal if suspended and play for the Yankees this week or he may negotiate a deal and accept a lesser penalty. That case will then control drug penalty cases in the future. The Commissioner will be very careful as well, as his power is at risk. Maybe it is better to save that for gambling cases in the future.

MLB is now taking a strong stance against drug use, and, as Henry Aaron is thinking, it is about time.

Alex Rodriguez, Biogenesis and MLB

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Alex Rodriguez is a third baseman, from time to time, for the New York Yankees.  He was named in Biogenesis documents and other testimony as a user of performance enhancing drugs, one of these players, Ryan Braun, of the Milwaukee Brewers, was suspended for the rest of the 2013 season on a plea bargain last week.

The case against Rodriiguez is based on “non-analytical positive” evidence. This is evidence other than a positive drug test and includes oral testimony, documents, emails and the like. This sort of evidence was used by the United States Antidoping Agency in its succesful case against Lance Armstrong and is commonly used in Olympic and other doping cases.

What is significant here is MLB’s strong stance against doping. Over the long period that steroids have been present in the game, MLB has taken a soft position and the union has presented obstacles to a real doping policy. In fact, the union took the position that “steroids are no more damaging to a player than smoking.”  This lead to the soft position on Barry Bonds following the BALCO scandal.

Now, however, MLB is taking the hard position and is considering a lifetime ban on Rodriguez based on his admitted PED use in the past that constitutes the three uses that allows such a ban. Rodriguez will appeal such a ban to Arbitrator Horowitz. Commissioner Bud Selig has said he may invoke special powers to by-pass this step under his “integrity of the game” authority.  This marks a signiificant escalation in MLB’s scrutiny of doping and is allowed by public comments by players that they want the game cleaned up. The player sentiment is what gives MLB management the sense that this sort of action will be effective, and causes the union to be realistic.

This is all very good, but we can all lament the fact that it has taken so long. Baseball’s most cherished records for single season and career homeruns have been lost to a serial doper. At least it is taking the proper action now.

Ryan Braun’s Plea Bargain

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MLB allowed a plea bargain in the first of the Biogenesis cases. (see article on this blog for June 16, 2013) This was the result of two meetings between Braun and MLB. At these meetings, Braun did not offer testimony, he was simply presented with MLB’s evidence. He agreed to a 65 game, or rest-of-the-season suspension.
As described earlier here, the evidence was non-analytical positive evidence much like the evidence used in USADA’s case against Lance Armstrong.
This evidence is other than drug test evidence but is equally effective in determining use, hence, a violation of the MLB drug use rules.
The most curious part of this is that even with the evidence, MLB chose to bargain for what it could get and did not simply suspend Braun to the limits of the rule,  possibly 100 games.
The reason for this is that MLB has had a difficult time with arbitrators in such cases. The most notable is the Steve Howe case where an arbitrator denied efforts to suspend for life a player whose drug use was epidemic on the basis of a failure to provide counseling instead. Last year, Braun was accused of positive drug test violations and the arbitrator dismissed the case based on a chain of custody error.
To avoid such an outcome again, MLB is bargaining over suspensions. Braun will lose $3.25 million in salary this year, but retains the more than $100,000,000 left on his contract with the Milwaukee Brewers. The question I want answered is whether the Brewers are planning to attack his contract itself, claiming breach on the theory his drug use was a violation of that contract.
The plea bargain process is underway with the approximately two dozen other players named in Biogenesis. Foremost among these is Yankee player Alex Rodriguez. Here the topic is a possible lifetime ban, but the player will negotiate something much shorter, unless MLB decides to suspend and go to arbitration in this case. At some point it has to do this.
The Yankees have the right to challenge the Rodriguez  contract as well and it is through breach of contract actions that MLB and its teams will realize real clout in the drug use cases.