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Weiner: the 50-100-lifetime suspension rules don’t apply to Biogenesis

Jul 16, 2013, 4:32 PM EDT

Bud Selig AP

We were really thrown a curveball earlier today when MLBPA head Michael Weiner, addressing the media, said that the penalties facing Biogenesis-implicated players are not ruled by the Joint Drug Agreement’s 50-game, 100-game, lifetime ban specifications.  When asked about why that was, Weiner pointed to the Commissioner’s “just cause” powers under the JDA.

Which seems odd to me because, as Wendy Thurm pointed out earlier today, the JDA says this about discipline:

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.

That italicized language seems to say that the discipline regime applies whether it’s a testing positive or, as will be the case with Biogenesis, non-analytical positives, circumstantial evidence-based violations, etc. There’s nowhere else in the agreement which speaks to Commissioner discretion with respect to discipline beyond the mere words “just cause,” which again, seems to speak to the violation, not the discipline.

Could this be a negotiated thing? The union and the league having an understanding, either now or having had it always, about what might happen if they’re dealing with a non-testing-based violation? And no matter when it was decided that any amount of discipline could apply for such violations, could it not mean that some guys get less than 50 games? Some way more.

As an example: say a Biogenesis Player — let’s call him Theo Blonzalez — has very weak evidence against him in the documents and testimony, but that the league wants to discipline him anyway. Might they take this discretion and give him, say, a five game suspension? That might be a nice break for someone like Blonzalez who, otherwise, might be subject to an automatic 50, which would seem overly harsh. At the same time, might another player with stronger evidence against him — say Schmalex Rodriguez — be slapped with unlimited discipline even if it’s a first offense?

I don’t know what it means, frankly. But I find it fascinating. And it further underscores my suspicion that a lot more conversations are happening between the union and the league than we know about. And that, just maybe, it’s nowhere near as adversarial as we might think.

  1. sdelmonte - Jul 16, 2013 at 4:40 PM

    So in other words, the union – which no doubts is speaking for the players to some degree – really is ready to throw A-Rod under the bus.

    I understand this. But it really me that there are now exceptions to negotiated rules. Even if the exceptions are being negotiated as well, albeit not ratified by the union. This doesn’t sound like good labor practice.

  2. anotheryx - Jul 16, 2013 at 4:45 PM

    Interesting, one might think that the whole biogenesis mess has implication beyond “possession or use of a Performance Enhancing Substance”. Not that it holds water, but it is interesting.

  3. mirmz - Jul 16, 2013 at 4:49 PM

    I originally read “just cause” as “just ‘cuz” and this whole Biogenesis thing made a lot more sense.

  4. missthemexpos - Jul 16, 2013 at 4:54 PM

    Blue Jays should sign Theo Blonzalez.

    • Kevin Gillman - Jul 16, 2013 at 9:01 PM

      They will only DFA him in a month though.

  5. weaselpuppy - Jul 16, 2013 at 4:55 PM

    Or if his “code” name was Jhonny Peral…oh, waitaminute….

  6. eightyraw - Jul 16, 2013 at 5:03 PM

    Craig, I think the “just cause” suspension lengths refer to the CBA, Article XII(A). MLB can try to punish the players under the CBA instead of the JDA, for “onduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state, or local law.” I interpret Weiner’s comments to mean that this is the direction MLB is taking.

    • stevem7 - Jul 17, 2013 at 1:22 PM

      I look forward to Bud laying it out there, putting on the cleats, and then dancing all over that which he has laid out in front of him. He won’t even be finished making the announcement about what he’s going to do before the lawyers will be IN COURT (Forget that Arbitrator garbage) stopping him.

  7. Panda Claus - Jul 16, 2013 at 5:03 PM

    As we wonder how the outcome of the this investigation will affect certain players, I can’t help but hope that maybe some umpires have mysteriously become wrapped up in this too. Involved enough to justify their own backdoor suspensions, away from where the umpires union has any power.

    Let’s say hypothetically, Sangel Fernandez for example.

    Oh in a perfect world. MLB could sweep a lot of problems under that rug if it really wanted.

  8. muskyhunter2542 - Jul 16, 2013 at 5:16 PM

    Im done with this Sh*t!!! Move on people.

  9. uwsptke - Jul 16, 2013 at 5:32 PM

    Where does Bryan Raun fit in this?

    • brewcrewfan54 - Jul 16, 2013 at 5:38 PM

      Hopefully accepting any suspension given to him immediately so the 2013 season can continue to get worse without ruining the 2014 season before it even starts. I’m guessing that wont happen though.

      • jayscarpa - Jul 16, 2013 at 7:42 PM

        “The baseball players’ association says any suspensions resulting from the sport’s latest drug investigation likely won’t be served until next year if the discipline is challenged before an arbitrator.

        Union head Michael Weiner says he expects Major League Baseball to notify the union of its plans for penalties in the next month, and the union will maintain that any discipline should not be announced until after arbitrator Fredric Horowitz upholds a ban”

      • brewcrewfan54 - Jul 16, 2013 at 8:20 PM

        I was being facetious. I already know Braun’s suspension is going to hurt next years season already.

  10. heyblueyoustink - Jul 16, 2013 at 5:56 PM

  11. sabathiawouldbegoodattheeighthtoo - Jul 16, 2013 at 5:57 PM

    If it is “permanent” it is not really a “suspension,” right? A suspension implies that there will be a resolution at the end. Not to be overly dickish about a minor point, but let’s just go ahead and call this a lifetime ban.

    I hope this thing is resolved soon because I usually think about baseball to excape from legal work…lately my diversion has been polluted.

  12. gmenfan1982 - Jul 16, 2013 at 6:16 PM

    Personally, since all of these possible suspensions are not the result of failed drug tests implemented by MLB, I think any suspension due to this Biogenesis case is horse sh*t. I don’t agree with cheating or steroids but there is protocol and it must be followed. Also, what bothers me about this whole PED thing to begin with is how it is determined what substances are allowed and which aren’t. Caffeine can be a PED. It gives you energy. A jump in your step. I’m sure protein supplements are fine but they give you strength. HGH is found in everyone’s body naturally. You or I can take it and it is not illegal. The difference with steroids is that roids are not natural and they are synthetic or chemically based. Anything that is natural should be allowed in my book.

    • raysfan1 - Jul 16, 2013 at 7:56 PM

      Androstenedione and testosterone, just to name two, are steroids and are natural. Taking them exogenously in high doses is not.

      • Walk - Jul 17, 2013 at 12:30 AM

        Gnc, last time I looked, still carries Androstenedione. It is legal to own but it is on the banned list of substances negotiated in the jda I believe. I am still waiting to see the players defense on these substances, will the league have to prove they used or prove they have the items on the invoices? How can they prove they did not buy the items on the invoices for someone other than themselves? Will the league even have to prove that?

      • raysfan1 - Jul 17, 2013 at 11:28 AM

        Androstenedione is no longer over the counter. We will have to see what defense strategies are used when the time comes. I personally would prefer that the JDA were followed, keeping all of this out of the kangaroo court known as the court of public opinion until after the appeal to the arbitrator is done.

  13. jayscarpa - Jul 16, 2013 at 6:20 PM

    Looks like Madden & Teri Thompson’s piece had some substance. That article also lists 6 different substances that ARod used. MLB could easily count each substance as a separate violation.

    He’s screwed any way you look at it. No more ABombs for ARod.

  14. chip56 - Jul 16, 2013 at 7:37 PM

    I don’t think it’s adversarial at all. I think that the league and players are both marching to the same beat here – they want the players who are using PEDs and screwing up the reputation of the league and casting suspicions on clean players to be punished. They’re as tired of this stuff as the rest of us and want these guys hammered so that people will say that the policy works and the players who are dirty are getting busted and the rest are clean and guys like Chris Davis won’t have to answer questions about whether they’re juicing.

    • nukeladouche - Jul 16, 2013 at 10:08 PM

      Chip56 this is a good point. I’ve worked in Labor Relations for 20 years now, predominantly on the management side. Most folks seem to think that unions exist to go to the mat to protect lousy employees, but the fact is, they are often under a lot of pressure from the good employees to let management do what they want with the bad ones. There are plenty of exceptions, of course, but in my experience it was not at all unusual for a union rep to say – off the record, of course – “hey, we’re just going through the motions on this one. Most of my members think this guy’s a piece of garbage who gets what he deserves on this one.”

      Like a good employee in a workplace who has to pick up the slack when a bad employee doesn’t do his/her job, the non-juicers in MLB may very well be tired of the hit to ALL of their reputations and the general stain on the sport, and thus be willing to let the union back down rather than go to the mat to protect potential juicers. Also keep in mind that baseball is a competitive sport, and while everyone is looking for an edge, the thought that your competition – who also happens to be your union “brother” – has an unfair advantage changes the dynamics of the situation. Unions often insist in that all-for-one loyalty in the workplace, but when your career might be sabotaged by a pitcher throwing an extra few miles an hour at your head because of his juicing regime, or if you’re a pitcher whose borderline ERA is creeping up a bit and you believe it’s because you’re facing juiced-up hitters. . . well, union solidarity may be the first thing to be jettisoned.

      • dparker713 - Jul 17, 2013 at 7:17 AM

        The majority of the players in this case don’t need the union to fight this battle for them. They’ll have very expensive attorneys that they pay for themselves. These players will be exercising every option available to them, regardless of the stance of the MLBPA.

      • chip56 - Jul 17, 2013 at 9:10 AM

        Correct. The Union will make sure that the league follows due process as spelled out in the JDA, but the fact is that they worked with the league to create a JDA that seems like it doesn’t require all that much to result in a suspension of a player.

      • padraighansen - Jul 17, 2013 at 9:22 AM

        Nuke, great points.

        I also think that the actual “PEDS” in question here are an ancillary issue. The more prominent issue will be discipline without confirmation of violation, and the extent of the punishment. More than anything else, I believe the union wants to make sure the precedents that are established with this are fair – and specifically that shady “witnesses” and controversial “paper trails of evidence” are not treated the same as certified, JDA-approved test results.

        Melky Cabrera created a fake website to help bolster his case. How difficult would it be for someone to make an accusation against Chris Davis, create a fake ledger showing Davis owes some money, and then A) attempt to blackmail Davis with it or B) then leak to ESPN and say that Davis was trying to purchase the records?

        These guys – and a lot of professional athletes – are repeatedly scam targets. While the example I gave above may seem far-fetched, both the Union and MLB have to prepare for similar situations, because there are a lot people out there now seeing how MLB has paid Biogenesis, how the court of public opinion has reacted, and the question becomes, to each player…how much is your reputation worth to you?

  15. offseasonblues - Jul 16, 2013 at 7:47 PM

    I agree chip56, and it’s about time the Union represented the clean players.

  16. jdvalk - Jul 16, 2013 at 8:57 PM

    In terms of stronger evidence, are we talking more descriptive language in a notebook?

  17. rathipon - Jul 16, 2013 at 9:40 PM

    The specific section Weiner is referencing in the Joint Drug Agreement is section 7 (G)(2). It states:

    “A Player may be subjected to disciplinary action for just cause by the Commissioner for any player violation of Section 2 above not referenced in Section 7.A through 7.F above”

    Section 7(A) states in pertinent part:

    A Player who tests positive for a Performance Enhancing Substance, or who otherwise violates the Program through the use or possession of a Performance Enhancing Substance, will be subject to the discipline set forth below.

    1. First violation: 50-game suspension;
    2. Second violation: 100 game suspension; and
    3. Third violation: Permanent suspension from Major League and Minor League Baseball;

    So basically, per the clear language of the JDA, the ‘just cause’ provision only comes into play if the underlying violation of the JDA is not referenced in 7(A). But 7(A) is pretty broad, including violations that involve either the use or possession of performance enhancing substances. Aren’t use and possession of PED’s exactly what we are talking about here? Other possible violations of the JDA contained in Section 2 include “facilitating the sale of, distributing, or facilitating the distribution of [PED's]“. But we haven’t heard anything so far about any players being involved in sales or distribution. This scandal is clearly about use of PED’s. And as such, I don’t see how the catch-all ‘just cause’ provision is available to the commissioner.

    What is amazing here is that the player’s union is apparently ready to support such a dubious interpretation of the JDA to the detriment of several union members.

    • louhudson23 - Jul 17, 2013 at 7:44 AM

      As stated in other comments,it indicates that the Union is now prepared to act on behalf of the non juicing portion of its membership by simply discontinuing its blind support of its juicing members….. and please,hold the false equivalency of greenies,good luck charm necklaces, etc. etc…. the big head,small balls bunch is about to be cast out of it’s Union Brotherhood at long last….

      • rathipon - Jul 17, 2013 at 8:25 AM

        Yes, that seems obvious at this point. But how do they expect it’s going to work when the commissioner clearly does not have ‘just cause’ authority in this situation given the very clear terms of the JDA? There is no viable legal interpretation of the Agreement which would allow a punishment that exceeds the 50 / 100 / /lifetime ban scheme. These players will win their appeals if given punishments that exceed that scheme.

      • bigharold - Jul 17, 2013 at 12:05 PM

        “These players will win their appeals if given punishments that exceed that scheme.”

        If there is a dispute between the Union and MLB it’s generally settled in front of an arbitrator. This, however, looks like it’s ultimately headed to Federal Court.

        What appears to be happening here is that the Union is abdicating it’s responsibility to fully represent players. One can only guess as to the motive but in the long run I can’t see this as a good thing for the union. They have been wildly successful; in their confrontations with MLB because they have stuck together while the owners frequently were not nearly as unified. This appears to be the first kink in the unions’ armor.

        I think in the end you might well see A-Rod suing not only MLB but the Union as well. Unless, Selig tries an end around and punishes A-Rod as Landis did in the Black Sox scandal by using his power as Commissioner and not punish him under the auspicious of the JDA, it would seem that the JDA’s language only allows for 50/100 or life time ban. The Union has a legal responsibility to him and MLB just can’t make it up as it goes. And, A-Rod has the resources to fight it out.

        This is getting crazier by the day.

    • dave8766 - Jul 17, 2013 at 12:40 PM

      I don’t know if use, possession, sale, distribution, etc. are necessarily what we are talking about in the case of all of the suspensions. We don’t know yet what evidence MLB has gathered or what each of the suspensions are for, and we won’t until it is announced. But for at least some of them it could be for lying to investigators, refusing to answer questions (Weiner was quoted that their determination is that players don’t have to answer but that the league could feel differently), buying records to hide them from MLB (A-rod), otherwise tampering with evidence, or any number of other things that we don’t yet know about (either instead of or in addition to the standard punishment for use, possession, etc.). It could be that this is a case without precedent that they may not have the fail safe evidence of use, possession, etc. contemplated in the JDA, but they have enough evidence of other wrongdoings deserving of a suspension. It was interesting the way Weiner talked about this almost as if it is a negotiation, saying we’ll meet with MLB and “we’ll come up with” suspensions that are fair and appeal those that are not. It’s as if this is a situation without precence and outside the contemplatation of the use, possession, etc. of the JDA (for at least some of the suspensions, or at least Weiner is acknowledging that possibility) and the union is willing to meet the league in the middle and say you’re not on incontestable footing to suspend these players based on the strict definitions of use, possession, etc. in the JDA but yes some of these suspensions are deserved but let’s make sure they’re fair.

  18. jkcalhoun - Jul 17, 2013 at 12:13 AM

    Schmalex Rodriguez, history’s worst schmonster.

  19. anxovies - Jul 17, 2013 at 11:43 AM

    Whatever MLB decides in this matter is likely to be irrelevant because the final decision will be made by some state or federal court in a couple of years. The standard for legal review in these kind of things is usually whether or not the decision was “arbitrary and capricious,” meaning that the punishment was irrational considering the facts available, or whether some procedural requirement was violated. Assuming these standards apply to hearings under a collective bargaining agreement, from the information so far it looks like that is where this thing is headed. My guess is that nobody will serve a day of suspension unless there is a smoking gun somewhere that hasn’t surfaced.

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