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The Arbitrator’s Decision: Creatively Counting to 150

Jan 13, 2014, 6:22 PM EST

Alex Rodriguez Reuters Reuters

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:

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  • 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.

  1. peymax1693 - Jan 14, 2014 at 9:39 AM

    I’m sure somebody mentioned this before, but how ironic would it be if Bosch, a modern day snake oil salesman if ever there was one, had provided A-Rod with different forms of placebos in what amounted to nothing more than a classic scam. It could be an explanation why: (1) his performance actually decreased as his use of PEDs increased; (2) he became susceptible to injuries; and (3) he passed 12 drug screens from 2010-2013, even even though he was supposedly injecting and ingesting 3 different PEDs throughout the course of those 3 years.

    Do I think this is the case? Probably not, considering Braun and Cabrebra, two of Bosch’s other clients, did test positive for PEDs.
    But would anyone put it past Bosch, considering how much we know about the man’s (lack of) character?

  2. keltictim - Jan 14, 2014 at 11:51 AM

    What confuses me is MLB clearly had a route to boot arod for life. I fully agree with Craig that the interpretation of the rules that by using the three substances would amount to three violations and therefore violations 1-3, 50/100/lifetime. Why didn’t MLB go down this route? It throws into doubt all the assumptions that Bud, and by extension MLB hates Alex. It really seems the lifetime ban route would have had a much more sound argument to follow, it begs the question why not go that route? This is perhaps the most confusing aspect of this case. Is it to punish the Yankees by making them pay Alex for a few more years? Is it because MLB really does want arod back in the game at some point? If so why? This is a basic “what in the Sam Hill ” situation.

    • peymax1693 - Jan 14, 2014 at 11:59 AM

      It is a puzzling set of facts. One possibility is that Selig knew that giving A-Rod a 211 game ban was essentially a lifetime ban, considering A-Rod’s age and injury issues. By not imposing a lifetime ban when it may have been warranted, Selig and MLBcould would be seen as magnanimous by the Union and the public in general. Another possibility is that Selig and MLB thought the arbitrator would find that a lifetime ban for a player who never tested positive would be excessive and might actually feed into A-Rod’s narrative that Selig and MLB were “out to get him.” From this perspective, not asking for the moon made more sense.

    • peymax1693 - Jan 14, 2014 at 1:55 PM

      I just read the Arbitrator’s report and is rationale for imposing a 150 game suspension is more reasonable than I thought. He found that A-rod’s use of testosterone justified a 50 game first offense punishment, while his use of HGH triggered another 50 game first offense punishment and his use of IgF 1 triggered a third and final 50 game first offense punishment.

      In other words, Horowitz concluded that A-Rod’s use of each PED triggered a 50 game first offender suspension for that particular PED. Adding up the 3 50 game suspensions A-Rod received for each of the 3 PEDs he was found using and you arrive at 150.

      Of course, that still leaves the issue of whether Horowitz was correct to: (1) treat A-Rod’s possession of 3 different PEDs as three separate violations; and (2) run the penalties for these violations consecutively instead of concurrently.

  3. lawrinson20 - Jan 14, 2014 at 1:03 PM

    It’s amazing to me that, even a set of ‘professional law dudes,’ having sorted through this jumble of legalese, can’t arrive at the same conclusion regarding which violation is referenced. How can there be argument about what these clauses and options mean? MLB needs a more specific set of rules. They ought, also, to be far more drastic in severity. 50 games, with contracts in the hundreds of millions? Apparently, the consequences haven’t been enough of a deterrent, when the game’s highest paid player, and one in the brightest spotlight, felt both compelled and enabled to commit such consistent ‘atrocities.’

    And, regarding Arod’s claim that 50 games should be applied…. Quite ridiculous. So, at present, if you (sincerely) accidentally ingest a banned substance, which happens to be an ingredient in an over the counter sports supplement product, and subsequently test positive ONCE, you get 50 games? And, ARod, with a full-fledged REGIMEN over three years (at least), would also be eligible for the same 50 game suspension?

    I’m surprised that neither Intent, nor Extent seem to be covered in the rules.

    I’m also conflicted. On one hand, i have long despised Rodriguez, and wish he would go away. On the other hand, I’m perversely delighting in the extent and duration of his public shaming. Not sure which i would prefer – to never hear his name again, or to have his reputation sullied over the course of another year, until he is remembered for nothing OTHER than this PEDBS.

  4. keltictim - Jan 14, 2014 at 1:07 PM

    That’s a assessment. 211 would essentially be a lifetime ban which I could see the arbitrator finding excessive. It’s just strange because to me the lifetime ban based on 3 violations is such a more compelling argument. At the very least it’s based on the structure of the JDA as opposed to just talking about the severity of the infraction warranting the length suspension.

  5. keltictim - Jan 14, 2014 at 1:39 PM

    Lawrinson20 you can’t factor in intent in a zero tolerance policy, that defeats the purpose. And your argument against the policy being a non deterrent isn’t supported by facts. In 2005 the last year of the spineless suspensions (10 games for a first offense) there were 12 players suspended, the following year with the new 50/100/lifetime, that number dropped to 3. It hasn’t gotten close to 12 again except for last year with the bulk suspensions due to biogenesis. The JDA has absolutely been an effective deterrent. These numbers only include MLB players, not players in the minors. Please do some minor research before claiming facts. These numbers came from the baseball almanac.

    • lawrinson20 - Jan 14, 2014 at 1:57 PM

      Maybe i shouldn’t have said that i’m “surprised.” But, calling it a “zero tolerance” policy is a debatable matter of semantics. Serve 50 games, and then return to immediately sign a massive contract, at least somewhat based on the ‘illegal’ achievements? “Zero tolerance,” to me, wouldn’t be a “three strike” policy. It wouldn’t have incremental punishments, with no calculation of intent or consequence. My analogy is to Murder vs Manslaughter.

      And, i didn’t say that the JDA isn’t a deterrent. I specifically said “not ENOUGH of a deterrent” to stop ARod. I fully realize psychology and sociology are always at play, and there’s nothing that is a sure-fire, 100% deterrent. I’m merely suggesting the penalties are still not strong enough, and although it’s certainly not realistic, given the powers of the Union, i wish there were a greater financial impact… on future contracts. And massive fines, as long as I’m dreaming.

  6. keltictim - Jan 14, 2014 at 2:35 PM

    Ok put that way I agree, I guess the onus is on the team signing the cheater to realize the prior numbers were achieved synthetically and there is a risk that without the PED those numbers might not be that high again. If a teams willing to take that risk so be it. I do agree it would be nice if future contracts could somehow be limited after failed tests but it’s just never gonna happen.

  7. bh192012 - Jan 14, 2014 at 7:39 PM

    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

    Pay close attention:

    A (singular) performance enhancing susbstance, or otherwise violates the Program through the posessession or use of a (singular) Performance Enhancing Substance.

    Think of how it would work if you were visited by a cop and had just meth on you vs meth, heroine and cocaine. It’s not the same offense. In this case it’s up to Bud Selig’s discretion. Then the arbitrator thought his number was high so set it where he felt was fair. I believe it’s basically at the arbitrators discretion when you’re busted for a drug cocktail as the JDA and CBA are currently written. Come on ride the train it’s the logic train. Woo Woo

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