Alex Rodriguez, Biogenesis and MLB

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

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.